
    
      In re First Presbyterian Church of Buffalo
    
      (Court of Appeals,
    
    
      Filed June 21, 1887.)
    
    1. Religious Corporations— Sale op church.
    Where the deed of property to a church was absolute and without condition or reservation, there is no trust imposed upon it thereby which will prevent a majority of those constituting the corporation from obtaining an order for a sale and directing that the proceeds be applied to the puruose of providing another place of worship.
    2. Same—Consent of presbytery.
    Where the presbytery declined, on request of the minority, to interfere, but gave its consent to the sale, provided a majority of the congregation should so decide in public meeting assembled, which they did, and petitioned the court for the sale, Held, that in granting the order no rule or usage of the Presbyterian denomination was violated. As to whether the presbytery had any jurisdiction, qumre.
    
    -3. Same—Lack op proper registry.
    Full notice of the meeting was given, and a chance given to every one entitled to vote. Held, that in such a case the mo.e and manner of making the registry was of very little importance.
    
      4. Same.
    This court has no concern with the merits of such a controversy, and will not decide whether the sale is wise or prudent.
    Appeal from supreme court, general term, fifth department.
    
      J. M. Humphrey, for app’lt; Spencer Clinton, forresp’t.
   Finch, J.

Upon the petition of a majority of those who constitute the religious corporation known and organized as the “First Presbyterian Church of the Town of Buffalo, ” the supreme court has made an order consenting to a sale of its real estate, and directing the proceeds to be applied to the purpose of providing such other place of worship as the society shall direct. On the appeal from this order, four different reasons are submitted as furnishing just cause for a reversal

It is first claimed that the property cannot be sold, and a good title to_ it cannot be given, by reason of a trust imposed upon it. The deed to the corporation is absolute, and without condition or reservation. It created no trust beyond that general duty which the law puts upon a corporation of using its property for the purposes contemplated in its creation. That sort of trust is not one which fastens upon the land and inheres in the title, going with it where it passes or restraining alienation, but founded solely upon' the corporate character of the grantee, and so justifying the control which the statute gives to the courts. The title of the church is an absolute fee, which it can transmit to a vendee with the judicial consent and approval. When that occurs, the proceeds take the place of the land, and become the corporate property, which the court, by a suitable direction, devotes to the proper uses and purposes which the corporation was framed to subserve, ana to accomplish which its property was bestowed. It is in no respect diverted from the religious corporation, or even from its denominational uses, and, so far as there is an element of trust, a sale is consistent with and not destructive of it.

It is next said that the acts of 1875 and 1876 have so far changed the then existing law as to prevent a transfer of the property except in accordance with the rules and usages, of the denomination, and that those rules and usages require the precedent approval of the presbytery. Before those amendments were made, it had been settled that a religious corporation held its temporalities wholly free from the domination of any ecclesiastical authority, and by a tenure so independent that it could change its creed and denominational character without losing its hold upon its property. Doubtless, the acts of 1875 and 1876 were intended to restrain in some degree that sort of diversion of church property from one set to another, for the provision is that the trustees shall hold ánd administer it according to the rules and usages of the denomination to which the church members of the corporation belong, and shall not divert it to the support of some other disconnected institution. It is not important to take the measure of this new legislation, or even to challenge the construction which the general assembly has apparently put upon one of its own canons, for no authority in the church has ever held or pretended that a society could not sell its land with the precedent consent of the presbytery, The interference of that, body was sought by the minority of the society in the present case. The majority declined to appear or to recognize the authority invoked.

The presbytery determined that it “ was thus left to makeup a deliverance by such light as it had,” and decided two things: First, “that it is not certain that the sale and. removal of the church would necessarily be attended with disastrous results if a large majority of the congregation should vote in favor of removal,” and the presbytery “ cannot, therefore, interfere to prevent a sale of the property * * * but it would advise the majority to proceed with caution and tenderness;” and, second, that an application to the court for leave to sell without a previous vote of a majority of the society in favor of such action is not in accordance with Presbyterian usage,” and that no further-steps should be taken “unless authorized by a vote of the congregation in public meeting assembled.”

Waiving, therefore, the interesting question whether the presbytery had jurisdiction at all, it is enough to say that it. gave its consent to proceeding with the sale, provided only that a majority of the congregation should so decide in public meeting assembled, and that the steps in that direction should be taken “with caution and tenderness.” The-majority took the advice, if they did not concede the jurisdiction. The pending application to the court was withdrawn. The trustees called a meeting of the congregation to consider and decide the question of a sale. Notice of that meeting was read from the pulpit for three successive Sundays prior thereto. At the meeting two of the elders presided. The vote was by ballot, and the qualification of the voters that provided by statute. Of these there were-137 entitled to vote. Eighty-five votes were cast, of which sixty-six were in favor of sale and nineteen opposed. Fifty-two members of the society entitled to vote did not do so; but twenty-four of those signed a paper of approval, produced with the petition to the court. It is upon that petition, presented after the vote, that the order here assailed. rests. It is entirely clear that in granting it no rule or usage of the Presbyterian denomination was violated; the presbytery itself having so determined.

But it is said, thirdly, that the vote was illegal for want of a proper register. There is no force in this objection, for a very obvious reason. Full and formal notice of the meeting and its purpose was given, as we have seen. Everyone entitled to a vote had opportunity to offer it, and the case shows that but one vote offered was refused, and there is not a particle of evidence that such vote should have been received, not a word of proof that any vote received should have been rejected. In such a case, the mode and manner of making the registry is of very little importance. It only becomes so when it excludes a lawful vote, or admits hn unlawful one. No such question is presented.

It is finally argued that the meditated sale is unwise and imprudent, and likely to. bring disaster upon the church. That opens the merits of the controversy, with which we can have no concern. The courts below have exercised their discretion upon the facts presented, and with their conclusion we must be content. Undoubtedly, much may be said for and against the wisdom of the proposed sale and removal. Removing an old church has something of the peril of transplanting an old tree. It may take kindly to the new soil, or the roots may be so torn as never to heal; but the risk is with the majority of the society, whose interests are immediately involved, and whose judgment fairly formed and ascertained should prevail. Since we ought not to decide upon the merits, we shall not obtrude our advice.

The order should be affirmed, with costs

All concur.  