[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 276 The parties hereto are religious corporations, formed under the act "to provide for the incorporation of religious societies," passed April 3, 1813. The plaintiff claims title to the property in question, under section 4 of that act, which provides that the trustees of every church, congregation or society, organized under the act are authorized "to take into their possession and custody all the temporalities belonging to such church, congregation or society, whether the same consist of real or personal estate, and whether the same shall have been given, granted or devised directly to such church, congregation or society, or to any other person for their use;" and also, to receive, hold and enjoy all churches and estates "belonging to such church, congregation or society in whatsoever manner the same may have been acquired or in whose name soever the same may be held, as fully and amply as if the right or title thereto had originally been vested in the said trustees." *Page 277
The difficulty with plaintiff's case is, that there are no facts upon which it can base its claim. To bring a case within that section the property must have been given or granted to the society, or for its use; and then, upon its incorporation, its trustees may take possession and control of it. Here, the funds with which the real estate was purchased, and the edifice erected, were contributed by the members of the defendant's congregation, for its use and benefit, before the congregation which subsequently organized, the plaintiff, had any existence. The funds were intended to be used by the defendant in establishing and maintaining a mission church and school; but there was no intention on the part of the donors that the property should vest in the persons connected with the mission church and school, or that they should in any way control it.
The act passed in 1850 (chap. 122) does not aid the plaintiff, even if it be assumed to be applicable to this case. Upon that assumption the defendant had authority under that act to purchase the site, build the church, and forever thereafter hold and manage the property. There is nothing in the act which in any way divests the defendant of its property. And the fact that defendant consented to plaintiff's incorporation can make no difference. Such consent did not divest it of the property and vest it in the plaintiff. It could consent upon such terms as it saw fit. It is clear that it did not intend to vest the property in the plaintiff, as it retained possession and control of a portion thereof, and simply permitted the plaintiff to use and occupy the balance under a lease.
We are, therefore, of opinion that the judgment should be affirmed, with costs.
All concur.
Judgment affirmed. *Page 278