
    RICHARD STOKER v. SAMUEL SCHWAB.
    
      Corporations de facto—power to take and convey real estate—effect of omission of seal on certificate made under 2 B. S., 7th ed., p. 1654.— Estoppel.
    
    The absence pf seals from the record under 2 B. S., 7th ed., p. 1654, of the certificate of incorporation of a church (the original certificate being lost, and there being no evidence whether or not seals were affixed to the original), does not so far invalidate the organization of the church as a corporation as to prevent it, as such corporation, from passing title to real estate, the organization of the church being in all other respects regular, the purchase of the real estate having been for church purposes, and the sale made in pursuance of an order of court allowing it.
    Under such circumstances, the church is a corporation de facto at the least capable of taking real estate and conveying with the permission of the court.
    The grantor, of such church, having received the consideration of the deed from his grantee as a corporation, would be estopped from asserting that it was not a corporation.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
    
      Decided June 20, 1888.
    Submission of a controversy upon an agreed state of facts.
    The facts appear in the opinions.
    
      Ferdinand Kurzman, for plaintiff:—
    I. The church by its corporate name of “ St. Paul’s African Methodist Episcopal Church in Morrisania,” on or about the first day of January, 1869, acquired said property, and continued in possession thereof, using the same as a place of worship for said church until about the first of July, 1873, when by its said corporate name it conveyed the premises to the plaintiff.
    II. The certificate purports to have been sealed from its termination which is “witness our hands and seals” etc. This of itself raises a presumption that the seals were affixed, and if so affixed, the fact that the certificate as recorded does not appear to have had seals, whether such fact is due to the mistake of the recording officer or to the loss of the seals after the execution of the instrument is not fatal to its validity. Trustees, etc., v. Bly, 73 N. Y. 323.
    III. The record of the certificate is not made evidence by the statute. It must be proved and recorded before the society becomes incorporated, but if it becomes necessary to prove the incorporation, the original must be produced or its loss proved and parol evidence given of its contents. Jackson ex dem. Wolton v. Leggett, 7 Wend. 379. The fact that seals were attached to certificate must be proved the same as any other part of the contents thereof, and no presumption of their omission arises from the absence of seals on the record.
    IY. The corporation having assumed to be duly organized and accepted a conveyance of the premises by its corporate name and subsequently conveyed it by the same name, could not set up the defect in its certificate of incorporation, neither could Waddrop who was one of the trustees named in the certificate, and who conveyed the property to the church by its corporate name, and who, as it appears, as president of the church corporation, executed the deed to plaintiff. Methodist Episcopal Church v. Pickett, 19 N. Y. 482; Morawetz on Private Corporations, § 753, and cases cited.
    
      Maurice Rapp, for the defendant:—
    I. The statute requires that the returning officers shall certify under their hands and seals certain matters, which certificate shall be recorded, and thereupon, the trustees shall be a body corporate. 2 R. S., 7th ed., p. 1654. Until that is done there is no corporation.
    II. Evidence of mere user, however long continued is not enough to prove the existence of a private corporation. Methodist Ep. Ch. v. Pickett, 19 N. Y. 482.
    III. The original certificate is undoubtedly the best evidence to prove the incorporation; but a certified copy is admissible, if on notice the original is not produced. Abbot's Trial Evidence, ed. 1885, p. 25.
    IY. The register of Westchester county, in whose office the certificate was recorded, being a public officer, is presumed to have done his whole duty. Accordingly the record must be presumed to be a correct and true copy of the original. And as the record does not contain any evidence that a seal was affixed to the original, the original, in the absence of proof to the contrary must be presumed to have had no seals. Unless it is shown that there were seals on the certificate, which before recording were lost or that the recording officer made a mistake in recording, the incorporation is not consummated, and until such consummation, there is no corporation either to take or to pass title. Trustees of St. Jacobs Lutheran Church v. Bly, 73 N. Y. 323.
   By the Court.—Sedgwick, Ch. J.

The question is whether the plaintiff had a title which he could convey. The objection is, that his right comes through a deed by a grantor called St. Paul’s African Methodist Episcopal Church, and that such grantor was not a corporation with legal capacity to take and convey real estate. There was a charter providing for the formation of such religious corporation, a certificate was filed, in pursuance of statute, which would have legally created the corporation, if it had in all respects complied with the statute, and the corporation acted ás a corporation under the statute and the certificate. It was therefore, a corporation de facto at the least capable of taking real estate and conveying with the permission of the supreme court. In this case the permission was obtained. The only defect indicated is that the certificate was not sealed, as it is said is required by the statute. This does not prevent the creation and continuance of a corporation defacto.

No one has an interest in the title excepting by supposition the grantee of the corporation. Having received the consideration of the deed, from the grantor as a corporation, he would be estopped from asserting that it was not a corporation.

The plaintiff should have judgment with costs.

Truax, J., concurred.

Freedman, J. (dissenting)

This is a submission of a controversy upon an agreed state of facts, and the sole question is whether the St. Paul’s African Methodist Episcopal Church in Morrisania as a corporation can pass a good and sufficient title to real estate in the absence of evidence that there were seals affixed to the original certificate of incorporation, such original certificate having been lost and the record failing to show that there was a seal or seals affixed and there being no evidence whatever that a seal or seals had ever been affixed. The certificate in question appears to have been signed by two of the members of the church. It was also acknowledged by them before a notary public, and then recorded in the office of the clerk of the county of Westchester. The record contains no mark or marks indicating that there was a seal or seals affixed.

The statute (2 R. S., 6th ed., p. 413, § 4; 7th ed., p.1654), prescribes that the two members of the church who preside at the first election of trustees, shall as returning officers certify under their hands and seals certain matters, which certificate shall be recorded, and thereupon such trustees and their successors shall be a body corporate. Until that is done there is no corporation.

The fact that the certificate as recorded does not appear to have had seals, is not necessarily fatal. Parol evidence may be given that the certificate was in fact executed under seal, and in the case of The Trustees of the St. Jacob’s Lutheran Church of the town of Eden v. Bly, 73 N. Y. 323, upon which the plaintiff here relies, such parol evidence was given.

There being no such evidence in the case at bar, the defendant is entitled to judgment with costs as prayed for in the submission.  