
    WYATT a. BENSON.
    
      Supreme Court, First District;
    
    
      Special Term, January, 1857.
    Beligiots Corporations.—Leave to sell Beal Property.— Arbitrate»!.
    • The history of the law relative to the right of religious corporations to dispose of their real estate—reviewed.
    The Supreme Court has authority to grant an order allowing a religious corporation to dispose of its real estate, only upon application by the corporation.
    
    The corporation consists not of the trustees, but of every member of the congregation having the privilege of voting.
    While an order authorizing the sale of real property belonging to a religious corporation, and made upon application of the trustees of such corporation, is yet in fieri and unexecuted, it is the duty of the court, upon proof that the application was contrary to the views and wishes of a majority of the corporators, to revoke its consent and to vacate the order.
    It is not competent to submit to arbitration the question whether or not property belonging to a religious corporation shall be sold by them.
    Uor is it competent for two adverse parties in a religious corporation to submit to arbitration the question who are the duly elected trustees of such corporation.
    A proceeding on the part of the people of the State is the only one in which the legality of an election to the office of trustee in a religious corporation can be determined.
    Application for an injunction.
    This was an action for an injunction brought by David Wyatt and twenty-six other persons, members of the congregation and society of the First Methodist Episcopal Church in the city of New-York, on behalf of themselves and other members of said congregation, against Benjamin W. Benson, and eight other defendants, claiming to be the trustees of the said church. The object of the action was to restrain the trustees from taking any further proceedings for a sale of the church in John-street, in the city of New-York, belonging to said society.
    The complaint set forth that the said society were the owners of a valuable piece of ground in John-street, upon which it erected a church, and which has been long used by said society as a place of religious worship. It also set out the names of seventy-four persons, including the plaintiffs, who are the only members and corporators of the said society. It also set forth certain proceedings instituted in the Supreme Court by the said trustees to obtain the consent of the court to a sale of the real estate of the society, and the proceedings of those opposed to such sale ; as follows:—
    That on June 15, 1856, nineteen of the members of the society, including eight of those who claimed to be trustees thereof, removed from the church in John-street, and organized a new church with the same name in the Fourth-avenue, near Madison-square.
    That at a meeting of the trustees of the society, held on February 12,1855, it was resolved that steps be "taken to remove the church and society up town; and on April 9, 1855, the trustees of the society resolved that, in their judgment, it was expedient and proper to make sale of the church property in John-street as speedily as possible, and to erect new church buildings in or near Madison-square ; and for that purpose an application was directed to be made to this court for its consent to a sale of the said John-street property. These proceedings, of the Board were supported by six trustees and opposed by three; and at that time only sixteen members of the society were in favor of the sale, while sixty were opposed to it.
    That one of the trustees caused a paper to be prepared to be presented to the Supreme Court, for a sale of said property, which was signed by twenty-five persons, who claimed to be members of the society. That on April 2, 1855, a meeting of the members and corporators of the church and society was held, who passed resolutions in opposition to the sale.
    That on May 10, 1855, on the application of the trustees, an order was made by the court consenting to a sale of the said church property.
    That soon thereafter a suit was instituted in this court by James T. Barnes and several other members of the society (none of the present plaintiffs being parties thereto), to restrain the sale of the said church and property.
    That on September 17, 1855, a stipulation was entered into between the parties to these suits, to refer to the arbitrament of Bishop Simpson, the question of the sale and removal of the church, and also the question of who were the legally elected trustees of the church, and it was agreed that his award should be binding and final upon all the parties thereto, and upon all matters in controversy, and that it should be a bar to all actions, litigations, and proceedings of every kind and character, in that or any other action or complaint whatever, concerning the sale or removal of the church.
    That Bishop Simpson did make his award on December 14, 1855 ; but the same not being satisfactory to the parties, an order was made by the court in the matter, resubmitting the whole subject to Bishop Simpson. The parties opposed to the sale of the church, on April 9, 1856, revoked their consent to the arbitration, and Bishop Simpson proceeded and made a new award. In this new award, it was declared that the order of the court,'assenting to the sale of the church, was a valid order, and should be carried into effect; that certain persons therein named were duly and legally elected the trustees of the corporation; and that the injunction granted restraining the sale of the church should be vacated.
    That thereupon an order was made in the Supreme Court on April 28; 1856, confirming the award, and from that order an appeal was taken to the general term of the court, which appeal was now pending. That in June, 1856, an action was commenced by the defendants claiming to be the trustees of the church, to obtain the possession thereof, and an injunction was thereupon granted, restraining the persons therein named as defendants from resisting the occupation of said premises by the said plaintiffs.
    That several other suits had been instituted by various parties, in reference to the church, and to the proceedings of the persons claiming to be trustees, and favoring the sale and removal of the church, to obtain possession thereof.
    The plaintiffs further stated in the complaint that they, and a large majority of the members and corporators of said society, were opposed to the sale and removal of the church; that the trustees elected at the church, which they alleged was the only legal place of election, were opposed to said sale and removal; and that none of the present plaintiffs were parties to any of said actions or proceedings, or to the submissions made to Bishop Simpson; and that they were not bound thereby. That this action was prosecuted in behalf of all the members and corporators of said church and society opposed to the sale and removal. The complaint prayed that the action of the court, consenting to said sale might he annulled and revoked, and that the persons claiming to act as such trustees of the society, and in favor of the sale and removal, might be restrained from taking any further proceedings for that purpose.
    The complaint also prayed that the persons who had been elected trustees by the opponents of the sale and removal, might be declared to be the duly elected and legal trustees of the society and corporation, and that the others claiming to be such trustees might be decreed to deliver over and transfer to them all the corporate funds and securities now in their hands.
    To this complaint the defendants answered denying many of its allegations. In support of them, a large number of affidavits were read, from which it was clearly apparent that a large majority of the corporators and members of the church and congregation were and had been, since the first institution of the proceedings for that purpose, opposed to the sale and removal of the church. The answer of the defendants was verified, but no affidavits in addition to • it were presented in opposition to the application, and no affidavits were presented by or on behalf of any of the other persons claiming to be corporators or members of the church or society.
    
      P. Y. Cutler and L. S. Chatfield, for the motion.
    
      E. L. Fancher and J. W. Edmonds, in opposition.
   Davies, J.

—The First Methodist Episcopal Church of the city of New-York is a religious corporation, incorporated under the general act of the Legislature of this State providing for the incorporation of religious societies. It would appear from section 12 of the act of March 27, 1801, that it had been incorporated previous to that date, as that section authorizes the said corporation to continue to elect nine trustees of the corporation, in the same manner as if that number of trustees had been originally named in the certificate of incorporation (1 Kent & R. Laws, 343). Section 3 of the act authorizing the incorporation of religious societies, provides that the male persons of full age belonging to any church, congregation, or religious society, may meet at the place where they statedly attend for divine worship, and elect not more than nine trustees, to take charge of the estate and property belonging thereto, and to transact all affairs relative to the temporalities thereof.

After the first election of trustees, no person is entitled to vote at subsequent elections, unless he shall have been a stated ■attendant on divine worship in the said church, congregation, or society, at least one year before such election, and shall have contributed to the support of the said church, society, or congregation, according to the usages and customs thereof. The powers of the trustees are particularly defined in section 4 of this act, and the only property of the society which they are authorized to dispose of, is “ all the moneys belonging thereto.” Incorporated religious societies are aggregate corporations, and whatever property they acquire, whether it be real or personal, is vested in interest in the body corporate, and while the officers have it under their control or dominion, whatever possession they have is the possession of the artificial person, whose agents they are; they have no other possession than the directors of á' bank have of a banking house. They are but the officers and agents of a corporation, who is the proprietor. (Per Denio, J., in The People v. Fulton, 1 Kern., 94.)

The corporation is the congregation in whom the right of election of trustees exists. This is apparent from section 14 of the act already referred to, which provides “ that the corporation of the Methodist Episcopal Church in the city of New-York, shall be and hereby are authorized to continue to elect nine trustees of the said corporation.” Section 9 of said act is in harmony with this view. It provides that “ whenever any religious corporation within this State, other than the chartered corporations, shall deem it necessary, and for the interest of such religious corporation, to reduce their number of trustees, it shall and may be lawful for any such religions corporation to reduce their number of trustees at any annual meeting.” The trustees have no annual meeting; the corporation have, and it is composed of the male members of full age, who are stated attendants on divine worship in said church, for the time required by the act, and have contributed to its support. These provisions admit of but one construction.

But if any doubt has heretofore existed on this subject, it is now removed by the decision of the Court of Appeals in the case of Robertson v. Bullions (1 Kern., 243). That court holds that the society and not the trustees constitute the body corporate ; that the societies are themselves incorporated ; that their members are the corporators; and that the trustees are the managing officers of the corporation. That “ the provision giving to every member of the corporation the privilege of voting, and the entire omission of any requirement in respect to the religious views or opinions of the persons to be elected as trustees, afford unmistakable evidence that no very rigid adherence to any particular creed or doctrine was contemplated, so far as concerned the management of the temporal affairs of the society, but that it was intended to leave all this to be regulated and controlled by the members of the corporation through the exercise óf their legitimate corporate powers. That the trustees can execute no trust except such as is acceptable to the majority of the congregation.” That “ the whole act shows that it was the intention of the Legislature to place the control of the temporal affairs of these societies in the hands of the majority of the" corporation, independent of priest or bishop, presbytery, synod, or other ecclesiastical judicatory.”

These views, I think, are also sustained by section 11 of the act, to which particular reference will be made in another connection. Chancellor Kent in his Commentaries (2 Kent, 314), holds that the powers given to the trustees of religious societies incorporated under this act, are limited to purchase and hold real estate, and then to demise, lease, and improve the same for the use of the congregation.

It was an incident at common law to every corporation to have a capacity to purchase and alienate lands and chattels, unless they were specially restrained by their charter or by statute.

Independent of positive laws, all corporations have the absolute jus disponendi of lands and chattels, neither limited as to objects, nor circumscribed as to quantity. And this common-law right as to disposition continued in England until it was taken away by several restraining statutes. These statutes were passed in the reign of Elizabeth, and one in the first year of her successor, restraining alienations of church property by religious corporations, and restricting the power of leasing the same for a longer period than twenty-one years, or three lives, or below the accustomed rents. (See 1 Evans' Stat., 381-390.)

These disabling acts have not been re-enacted in this State ; but the better opinion upon the construction of the statute for the incorporation of religious societies, is that no religious corporation can sell in fee any real estate without the chancellor’s order (2 Kent's Com., 314).

Chancellor Walworth holds (in De Ruyter v. The Trustees of St. Peter’s Church, 3 Barb., 122) that “ these statutes, forming part of the law of England at the time of the settlement of this State by colonists from England, under the charter of the Duke of York, were probably brought hither by those emigrants, and became a part of the laws of the colony, although they were not re-enacted here. For it is a natural presumption, and therefore adopted as a rule of law, that on the settlement of a new territory by a colony from another country, and when the colonists continue subject to the government of the mother country, they carry with them the general laws of that country, so far as those laws are applicable to the colonists in their new situation.”

The chancellor thereupon holds that there was a common law existing, in this State restraining religious corporations from alienating church property, aud that the same could not be done until the Legislature passed the act of March, 1806, authorizing the chancellor, upon the petition of the Corporation, to make an order for such sale. (See also case of Bogardus v. Trinity Church, 4 Paige, 198.)

Such being the state of the law, the act of March, 1806, was passed, making it lawful for the chancellor of this State, upon the application of any religious corporation, in case he shall deem it proper, to make an order for the sale of any real estate belonging to such corporation; and this is the language of section 11 of the act relative to the incorporation of religious societies before referred to (3 Rev. Stats., 1 ed., § 11, 298). This court having, since the constitution of 1846, succeeded to all the powers and authority vested in the Chancellor, the application is now necessarily to be made to this court. But it cannot escape observation that the application can only be made by the corporation, and that this' court has no power to make such order, except on such an application. We have seen that no such authority is conferred upon the trustees of any religious corporation. That the application must be made by the corporation, and that the corporation consists of “ every member of the congregation having the privilege of voting,” and “ that it was the intention of the Legislature to place the control of the temporal affairs of these societies in the hands of the majority of the corporators.”

The order of this court, giving its consent to a sale of said church, was made on the petition of a majority of the then board of trustees of said society. It was not then alleged, nor is it now asserted in the defendants’ answer, that such application was authorized by a majority of the corporators thereof, and the answer does not deny that the same was presented in pursuance of a resolution adopted by said board of trustees at a meeting held on April 9,1855, which declared “that in the judgment of this Board it is expedient and proper to make a sale of the church property in John-street as speedily as possible, and to erect new church buildings in or near Madison-square.”

If the previous conclusions arrived at are sound, the judgment or views of the board of trustees in reference to a sale of the church property, were of no moment except so far as they were the expression of the opinion of that number of members of the society. It was only the judgment and opinion of a majority of the members of the corporation, which carried weight, and gave force and effect to the proceeding. Those who spoke the ascertained opinions of such majority, were only authorized to make such application for them, and it was then only that the corporation spoke and acted.

It might perhaps have been assumed that the trustees did represent the views of the corporation in making the application, and that there was apparent authority for granting the consent of this court.

The order is yet in fieri, not having been executed, and no rights having been acquired under it, is still under the control of the court, and it is therefore competent for this court to revoke its consent to such sale.

Nay, I think it is its bounden duty to withdraw its consent to the sale, it now being most apparent that such a measure is in opposition to the views of a large majority of the corporators. They have the right to say what shall be done with their own property;—not trustees, creatures of their will, and who have no existence but by their suffrages. Giving to the trustees consent to sell the property of the corporators while this large majority are opposed to the measure, is giving to the agent control over the principal, making the servant greater than his master, and permitting the agent to sell the property of his principal, in spite of his solemn protest.

The views and wishes of these corporators being now made known to this court, I deem it the duty of the court to withhold its assent to a sale of this church property.

This court has no power to direct or require the corporation to sell its property against its will (Matter of the Reformed Dutch Church in Saugerties, 16 Barb., 241).

The language of Mr. Justice Harris in that case, where the .majority were in favor of the sale, which was therefore ordered and consented to by the court, is pertinent to the case now under consideration:—

“ The remonstrants, though numerous and comprising some of the most respectable men in the church and society, are yet in a minority. It is the right of the majority to control in all civil affairs, and not less in the management of the temporalities of a religious society than in any other. This is a cardinal principle of our free institutions. It pervades the whole structure of society. Where men differ in opinion, the will of the majority must prevail. The rule is safe and equitable.

“Sometimes, though not often, the application of the rule results in individual hardship. Sometimes, too, though very rarely, it is necessary to protect the rights of a minority against the arbitrary acts of a majority. But' generally, when individuals unite their interests to accomplish a common end, they should expect and he willing that a majority of the associates should govern in all matters of common interest. They may he supposed to enter the society with the knowledge that they are to he governed by this principle.”

But the defendants plead in bar to the relief asked for by the complaint in this cause, the submission and award made by Bishop Simpson, which they insist is a final disposition of the question as to the sale of the church and who are the legally elected trustees of the corporation.

The present plaintiffs were not parties to that submission, and consequently are not bound by the award, however legal and binding it may be on the parties to it (Delafield v. Colden, 1 Paige, 139).

It was not competent, in my judgment, to submit the question, as to whether or not the church should be sold, to any tribunal, other than that pointed out by law.

We have seen that the corporation itself has no power to sell its real estate without the consent of this court. It could not, therefore, submit that question to any other tribunal, and no arbitrator can say that such real estate shall or shall not be sold. That is a matter resting solely in the discretion of this court, and cannot be lawfully delegated to any one else. The award that the property should be sold, binds no one, and gives no authority to make the sale. So an award that it should not be sold, cannot control the discretion or power of this court to consent to a sale on a proper application of the corporation for that purpose. I have no doubt, therefore, that the award of Bishop Simpson that the church should be sold, and its confirmation by an order of this court, present no obstacle to the relief asked for by the plaintiffs.

So, in like manner, the plaintiffs are not bound by the submission of the question as to who were the legally elected trustees of the corporation. A submission and award in reference to that question could not legally determine who are the duly and lawfully elected trustees of this corporation. A o proceeding on the part of the people is the only conclusive form known to the law definitely to settle that question, and an award like that interposed in this case presents, in my judgment, no obstacle to the plaintiffs calling in question the right of the defendants to act as the trustees of the First Methodist Episcopal Church. Even though the defendants be the legally elected trustees of the society, they have not, in my opinion, any right or power to institute or carry on proceedings to sell the real estate of the society without the consent of a majority of the corporatoi's.

I am therefore of the opinion that the consent of this court to the sale of said church, given on the application of a portion of the trustees, and not sanctioned by a majority of the coz’poratoi"s, should be withdrawn and revoked, and that an injunction should issue to restrain the defendants from taking any further proceedings in relation to a sale of the same.

I cannot close my investigation of this case without the expression of my deep regret at witnessing the painful and bitter state of feeling engendered in this society in reference to the removal of a portion to the upper part of the city, and their desire that the church of their fathers should be sold, and no longer be used for the holy purposes for which it has been so long consecrated. This movement, as has been seen, is most strenuously opposed by the large majority of the corporators, who yet remain, and still linger around the old house of worship. It is not surprising that they cling to its hallowed walls with affection and earnestness, and resist every effort to drive them from this cherished spot. I shall indulge the hope that some amicable mode for a fair and just division of this property among those who have, by inclination or necessity, been compelled to remove to another part of the city, and those who remain, may yet be found and adopted. It certainly cannot be difficult to devise a plan which will insure justice to all, and permit this venerable edifice yet to remain “ for the service of the Almighty God, after the manner of the people called Methodists.”

I cannot better express my own views than to use the language of Judge Harris, in the case quoted above. He says :— “ Those who prevail in this controversy should not forget that the minority. as well as themselves have their rights. These rights should be tenderly regarded, and the more so because they are the rights of the minority. It is quite evident, I think, that the parties are not likely, successfully, to maintain two distinct organizations. Under these circumstances, sound policy, as well as the more exalted principles by which all the parties profess to be actuated, require that the most enlarged forbearance should be habitually exercised, and the most liberal concessions made towards those who have hitherto opposed the action of the majority.”  