
    John Lynch, App’lt, v. Oscar Pfeiffer, Resp’t. Oscar Pfeiffer, Resp’t, v. John Lynch, et al., App’lts.
    
      (Court of Appeals,
    
    
      Filed June 5, 1888.)
    
    1. Religious societies—Certificate of incorporation—When sufficient under Laws of 1813, passed April 5tii.
    The certificate of incorporation of the ManhattanviUe Presbyterian Society recited that the meeting at which the organization was perfected was composed of the male members of the congregation that “ there being no minister, elders or deacons present at said meeting David Stevens was appointed its chairman, R. C. Andrews assistant chairman, and William R. Dunshee secretary,” that “ hy general consent the society is to continue to be known as the Manhattanvilie Presbyterian Society.” Held, that the said society was legally organized, That there was nothing in said certificate to show that any female member was excluded from said meeting, that there was no implication from the language used that at the time of its holding said meeting there were any elders. That there was a perfect compliance with the provisions of Laws of 1813 passed April 5th, which requires that in the certificate of the incorporation “ the name or title by which the said trustees and their successors shall forever thereafter be called and known shall be particularly mentioned and described.”
    8. Same—Pleading—Sufficiency of petition fob leave to sell land —When trustees are authorized to convey.
    The trustees of said society presented a petition to the supreme court in which they represented that the said society was seized in fee of the land in question that by an order of the court the trustees had executed a certain mortgage which through several mesne assignments was then held by the trustees of the Presbytery of New York, that there were unpaid assessments upon the land bearing twelve per cent interest, that the church membership was so reduced as to make it impossible to meet the current expenses of sustaining their church property and religious worship therein from the rental of pews which was their only means of income. That they had no means of paying the incumbrances except by a sale of the premises. That there was a floating debt, that the church building required expensive repairs, that from the location of the property there was liability of frequent assessments for street openings and other objects. That at a meeting of the congregation regularly called it was resolved to transfer the church property to the trustees of the Presbytery of New York and that the trustees were authorized to take all measures necessary for a legal transfer of the same. And they asked for an order authorizing them to convey the premises described subject to all existing incumbrances, the amount of which together with the floating debt should constitute the consideration to be expressed in the deed. The order prayed for was made and entered and the deed executed to the trustees of said Presbytery re cited a consideration of $3,786. Held, that the petition was sufficient to give the court jurisdiction to make the order. That the deed from the Manhattanvilie Presbyterian Society to the trustees of the Presbytery of New York was duly authorized and in all respects adequate and sufficient to convey a good title to the premises. Distinguishing Madison Avenue Baptist Ohurch v. Oliver Street Baptist Ohurch, 46 N. Y., 131 and 73 id., 82.
    3. Same—Consideration—Effect of false recitation that it has been paid.
    
      Held, that although the deed recites that the consideration was in hand paid, yet it would not be invalid if the consideration had not, in fact, been paid, but had been agreed to he paid.
    4. Same—Mortgage—Merger in deed—When it takes place—How prevented.
    The said mortgage assigned to the trustees of the Presbytery, as aforesaid, did not, after the conveyance, continue to be an incumbrance upon the premises, but became merged in the superior legal title which the said trustees took by the deed. In order to prevent a merger in such a case, the grantee should have some interest to keep the mortgage on foot, and there must be an intent that the merger should not take place.
    On the 14th day of February, 1883, an agreement was made between Oscar Pfeiffer, of the first part, and Anthony McBeynolds, of the second part, whereby, in consideration of the sum of $21,400 to be paid, Pfeiffer agreed to sell to McBeynolds certain land situated in the city of New York. $1,000 was paid on the execution of the contract, $12,500 was to be paid by assuming a mortgage for that amount then on the land, and the balance of $7,900 was to be paid in cash on delivery of the deed. A deed containing the usual full covenants was to be delivered on the 15th day of March, 1883; and on that day Pfeiffer tendered a deed which McEeynolds refused to receive on the ground that the title was defective, and the property not free from incumbrance. Prior to the fifteenth day of March McEeynolds assigned his contract to John Lynch, and the tender of the conveyance was made to both Lynch and McEeynolds. Thereafter Lynch commenced one of these actions against Pfeiffer to compel specific performance of the contract, and soon thereafter Pfeiffer commenced the other action against Lynch and McEeynolds to compel specific performance by them. Both actions were tried at the New York county special term of the supreme court, at the same time, and it was there found that Pfeiffer had tendered and was able to give a good title, and in his action specific performance was decreed. The complaint in the action commenced by Lynch was dismissed. The judgments in both actions were affirmed at the supreme court, general term, first department, and then an appeal in each action was brought to this court.
    
      Matthew Daly, for app’lt; Erastus E. Brown, for resp’t.
    
      
       Affirming 38 Hun, 603, mem.
      
    
   Earl, J.

Several objections were made by Lynch and McEeynolds to the title tendered them by Pfeiffer, and it is proper that the objections should be examined in detail.

First. The title to the land comes through mesne conveyances from the Manhattanville Presbyterian Society which purchased and took a conveyance of the land in June, 1882. It is objected that that society was not regularly organized, and that it could not, therefore, hold or convey land. It was organized under the act, chapter 60 of the Laws of 1813, providing for the formation of religious associations. That act specifies particularly how societies of this kind could be organized, and so far as we can perceive all of its provisions were complied with.

It is recited in the certificate of incorporation that the meeting at which the organization was perfected was composed of the male members of the congregation; and it is objected that the meeting was illegally organized if confined to the male members, as all the members of the congregation, both male and female, were entitled under the act to take part in the meeting. The organization was perfected the 15th of August, 1851.

It is claimed on the part of Pfeiffer that the statute prescribed that none but male members of legal age could participate in the meeting. We are referred to no statute making such a provision. But if we assume that all the members of the congregation of lawful age had the right to participate in the meeting, it is not shown that any were excluded. While it is recited in the certificate that the meeting was composed of the male members of the society, for aught that appears the female members may have absented themselves, and if they did, the male members had the right to constitute the meeting. Certainly there is nothing to show that any female member was excluded from the meeting.

The statute provides that on the day of the election two of the elders shall preside, and, if there be no such officers, then two members of the congregation shall preside at the election. The certificate recites that “there being no minister, elders or deacons present at said meeting, David Stevens was appointed its chairman, R. C. Andrews, assistant chairman, and William R. Dunshee, secretary.” There is no implication from this language that there were any elders, and there is no proof that there were any. Hence it was perfectly proper for the members of the congregation present to select two of their number to preside at the election of trustees.

The certificate further recites that “by general consent the society is to continue to be known as the “Manhattan-ville Presbyterian Society.” That is a perfect compliance with the provision of the statute which requires that in the certificate of the incorporation “ the name or title by which the said trustees and their successors shall forever thereafter be called and known, shall be particularly mentioned and described.”

We are satisfied, therefore, that the Manhattanville Presbyterian Society was legally organized.

Second. It appears that the Manhattanville Presbyterian Society made a conveyance of this land by deed, dated May 15, 1875, to the Presbytery of Hew York, a corporation authorized to take and hold real estate. But it is claimed that the society was not authorized to make that conveyance, and hence that it was void, and no title passed to the Presbytery. It was provided in the act of 1818 that the chancellor, to whose powers the supreme court has succeeded, in case he should deem it proper could make an order for the sale of real estate belonging to a religious corportion, and to direct the application of moneys arising therefrom by the corporation. In pursuance of that provision in May, 1875, the trustees presented a petition to the supreme court in which they represented that the Manhattanville Presbyterian Society was seized in fee of the land in question; that, in 1857, by virtue of an order of the court, the trustees executed a mortgage to one Van Allen upon which there was then due and unpaid the principal sum of $1,500 and interest from June, 1871; that that mortgage, through several mesne assignments, was then held by the trustees of the Presbytery of New York; that there were unpaid assessments upon the land for improvements, bearing interest at the rate of twelve per cent from the date of confirmation; that the church membership of the society and congregation was so reduced in numbers as to make it impossible to meet the current expenses of sustaining their church property and religious worship therein;, that they had no income except from the' rental of pews, and that that was wholly insufficient for the purposes aforesaid; that they had no means of paying the incumbrances except by a sale of the premises; that besides a floating debt of about $300, the church building required expensive repairs, which they were unable to make; that the location of the property was such as to expose it from time to time to other assessments for street openings or other objects; that at a meeting of the congregation regularly called, it was resolved to transfer the church property to the trustees of the Presbytery of New York, and that the trustees of the church be authorized to take all measures necessary for a legal transfer of the same. And they prayed that an order might be entered authorizing them to execute and deliver to the trustees of the Presbytery of New York a deed in fee simple conveying to them and their successors and assignees the premises described, subject to all existing incumbrances, the amount of which, together with the floating debt, should constitute the consideration to be expressed therein.

The court thereupon made an order that the trustees of the society be authorized to execute and deliver to the trustees of the Presbytery of New York a deed in fee simple of the land described in the petition; that such deed be subject to all existing incumbrances, and that the amount thereof, together with the floating debt of $300, constitute the consideration to be expressed in the deed. In pursuance of that order, on the 18th day of May, 1875, the society executed a deed to the trustees of the Presbytery of the premises described, reciting a consideration of $3,736, “lawful money of the United States of America, to it in hand paid by the party of the second part/’ The deed contained the usual full covenants, and was made in terms subject to the Van Allen mortgage. Thereafter, on the 7th day of November, 1881, the trustees of the Presbytery of New York, by a deed containing no covenants, conveyed the same land to Pfeiffer, and Pfeiffer, to secure a portion of the purchase price, executed to them a "mortgage for $12,500.

We see no reason to doubt that the deed from the Manhattanville Presbyterian Society to the Trustees of the Presbytery of New York was duly authorized and in all respects adequate and sufficient to convey a good title to the premises. The petition was sufficient to give the court jurisdiction to make the order ; and although the deed recites that the consideration was the sum of $3,766, in hand paid, yet it would not be invalid if the consideration had not, in fact, been paid, but had been agreed to be paid. In reaching the conclusion as to the validity of that conveyance, we come in conflict with nothing decided in The Madison Avenue Baptist Church v. The Oliver Street Baptist Church (46 N. Y., 131; 73 id., 82). In that case this court held upon the facts there appearing, which were very unlike those in this case, that no sale of the property was intended ; that the whole scheme was to effect a union of the two churches and a dissolution of the grantor as a religious corporation which was to reap no benefit whatever from the conveyance, and hence that it could not be regarded as a sale. Here the grantor survived as a corporation, and was to be benefited by the payment of its debts, and there was a transmission of property from one party to another for an adequate consideration, and hence in every sense there was a sale.

Third. The Van Allen mortgage did not after the conveyance continue to be an incumbrance upon the premises, but became merged in the superior legal title which the Trustees of the Presbytery took by the deed. In order to prevent a merger in such a case, the grantee should have some interest to keep the mortgage on foot, and there must be an intent that the merger should not take place. James v. Morey, 2 Cow., 246 ; Champney v. Coope, 32 N. Y., 543 ; Bascom v. Smith, 34 id., 320. Hereafter the conveyance to the Presbytery, so far as it appears, it had no interest whatever in preserving the lien of the mortgage, and there was clearly no intention on the part of the Presbytery to keep the mortgage on foot. All the facts show that it was the intention of the parties that the Presbytery should pay the mortgage as a part of the consideration for"the purchase of the property, and, therefore, the Van Allen mortgage ceased to be an incumbrance upon the property.

Fourth. It is further objected that the property was incumbered by a mortgage made by the Manhattanville Presbyterian Society to William G-. Bull, John L. Mason, William P. Cook and Jesse W. Benedict on the 30th day of April. 1857, nearly twenty-six years before the contract of sale between Pfeiffer and McReynolds. That mortgage was payable on demand, and hence has long since apparently been barred by the statute of limitations. After the conveyance by the trustees of the presbytery to Pfeiffer, all the mortgagees named in that mortgage, or their representatives, executed releases thereof to the trustees of the Presbytery of New York. It is claimed, however, that those releases were ineffctual because the Presbytery did not, at the time, hold any title to the premises. But it was at that time a mortgagee of the premises, and that was sufficient to uphold a release of a prior mortgage. The facts show sufficiently that it was the intention of the Presbytery by obtaining the releases to perfect the title which it had conveyed to Pfeiffer. But if the releases were otherwise ineffectual, they furnish strong evidence together with the great lapse of time and the omission to mention the mortgage in the proceeding for the sale of the land by the Manhattan society, that the mortgage is no .longer a subsisting incumbrance or obligation, and the same if not

}>aid or otherwise discharged, is barred by the statute of imitations.

We have, therefore, reached the conclusion that the title tendered by Pfeiffer in performance of his contract was reasonably clear from any defect. The alleged defects, if any exist, are merely fanciful and not substantial, and are not sufficient to defeat an action for specific performance.

The judgment should therefore be affirmed, with costs. All concur.  