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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 141 It was not disputed on the argument before us that the High Dutch Reformed Church of Schoharie was properly incorporated, and that it took title to the premises upon which the church was erected at Gallupville by the deed of Gallup and Wheeler, dated April 15, 1835. That corporation built a church upon the premises and continued to occupy them, using both the church at Schoharie and Gallupville until June, 1844, when, at a meeting of its consistory, proceedings were taken to divide the congregation represented by the corporation, and a division was made setting off from the parent congregation that portion of the congregation residing at and near Gallupville, so that a distinct society might there be organized according to the rules and constitution of the Reformed Dutch Church. At the same meeting of the consistory, a resolution was also adopted dividing the property of the corporation and setting off and transferring to the society at Gallupville the church and premises there covered by the deed above mentioned. This resolution could not operate as a conveyance for at least two reasons. There was no grantee, or no individual was named as grantee, and there was no corporation to take, and the conveyance was not authorized by the chancellor or any law. Probably the only *Page 144 way by which the corporation could have divided its real estate and vested a portion thereof in a part of the congregation set off from the parent organization, would have been by act of the legislature. (Madison Avenue Baptist Church v. Baptist Churchin Oliver Street, 46 N.Y., 131; Laws of 1813, chap. 60, § 11.)
Hence the High Dutch Church of Schoharie was not divested of the premises in question by the act of its consistory. But the imperfect and invalid conveyance attempted by the consistory was sufficient to lay the foundation of an adverse possession. Possession under an invalid conveyance, with a claim of title, is adverse to the grantor, and if continued for twenty years will bar the grantor's right of entry or recovery. (Bradstreet v.Clarke, 12 Wend., 602, 674; Clapp v. Brumagham, 9 Cow., 530; La Frombois v. Jackson, 8 id., 589; 3 Wn. on Real Prop., 148.) It is the possession under claim of right to which the law attaches most significance, and if such possession commenced under a written instrument of any kind, however imperfect it may be, it may be looked to for the purpose of showing the character and extent of the possession and claim, and the intent with which the entry was made.
The society at Gallupville took possession of the premises in 1844, and thereafter occupied them, claiming to own them, until April, 1869, about twenty-five years, and then it was regularly incorporated, and the plaintiff as such corporation succeeded in the possession of the premises. The society manifestly claimed and possessed just what was conveyed to the High Dutch Church of Schoharie, and during the whole time the society held adversely to that church; and while there was no formal conveyance to the plaintiff, it was so far in privity with the society that it has the benefit of the former possession. The corporation, when formed by virtue of section 4 of chapter 60 of the Laws of 1813, succeeded without any formal conveyance to all the property of the society and to all property held for its use. (BaptistChurch in Hartford v. Witherell, 3 Paige, 296.) The case must be treated *Page 145 as if the society organized the corporation and transferred to it all the right and possession which it had. In such a case, as the law is settled in this State, there is such a continuity and privity of possession and estate as will enable the last possessor to tack to his possession the prior possession, so as to establish his title by adverse possession. (Jackson v.Moore, 13 Johns., 513; Jackson v. Thomas, 16 id., 294;Simpson v. Downing, 23 Wend., 316; Winslow v. Newell,19 Vt., 164; Smith v. Chapin, 31 Conn., 530; Ang. on Lim., § 414.) In 2 Smith's Leading Cases, 600, the American editors say "that in New York, Vermont and Massachusetts possessions may be tacked, if one comes in under the other and the possessory estates are connected and continuous."
It is objected to the views here expressed that prior to the incorporation of the Gallupville society the voluntary unincorporated society could not acquire title by adverse possession. This is doubtless true. A society of persons which could not take title by grant could not acquire it by adverse possession; but the individuals who compose such a society may acquire title by adverse possession. This society was, from 1844 to 1869, composed of the same individuals or persons claiming in succession under the same title, and in the same right. It at all times had officers, either the same or in succession, who managed its affairs and actually controlled and possessed its property, and could have been sued in an action of ejectment. Such officers could at any time have taken a grant for the benefit of the society, and could acquire title by adverse possession for the benefit of the society. When the corporation was formed in 1869, all difficulty was removed, and it had the benefit of the prior possession, and took the title.
The statute of limitations, as to real estate, is founded upon public policy. It is a statute of repose, and intended to quiet and settle titles, and operates against corporations as well as natural persons, and even against the State. As enacted in our State, its terms are very sweeping, and it would include all owners of real estate but for the exceptions of natural persons *Page 146 under the disabilities mentioned in the statute; and mere incapacity, for any reason, to convey is not the foundation of any of the disabilities. It is said, in 2 Greenleaf's Cruise on Real Property (454), "that ecclesiastical corporations, and generally all ecclesiastical persons, seized in right of their churches, being restrained from alienation by several positive laws, are not quoad the estates whereof they are seized in right of their churches, within any of the statutes of limitations, and therefore cannot bar their successors by neglecting to bring actions for recovery of their possessions within the time prescribed by these statutes; but an ecclesiastical person who is guilty of this neglect will himself be barred." The only authority cited to sustain this text is theMagdalen College Case (6 Coke, 67). In that case, the master of the college conveyed a certain house to Queen Elizabeth in the seventeenth year of her reign, notwithstanding the statute passed in the thirteenth year of the same reign, which enacted "that from thenceforth all leases, gifts, grants, feoffments, conveyances or estates to be made, had or suffered by any master and fellows of any college, dean and chapter of any cathedral or collegiate church, master or warden of any hospital, parson, vicar, or any other having any spiritual or ecclesiastical living, or any houses, lands, titles, tenements or other hereditaments, being parcel of any such college, church, cathedral, hospital, rectory, vicarage, or any spiritual living, etc., to any person or persons, etc., shall be utterly void and of no effect, to all intents, constructions and purposes." Subsequently the queen conveyed, and her grantee conveyed to the Earl of Oxford, and he being seized thereof, one Broughton and wife levied a fine of the house to him with proclamations, and the question was, whether his title thus became good against the college. It was held that the conveyance to the queen was in violation of the statute, and that the title was not perfected in the earl by the fine. The decision was based upon the ground that the fine was a conveyance "permitted or suffered" by the master and fellows of the college, and that the statute was violated not only when they suffered a recovery against themselves, *Page 147 as parties thereunto, but generally, according to the letter of the statute, when they suffered others to levy a fine with proclamations. The decision was based upon the letter of the statute, that a conveyance was "suffered" — a fine being a feoffment of record. A person who takes title to real property by adverse possession cannot be said, in any proper sense, to take it by conveyance or grant. Such a person simply takes the position which the law assigns him. The law, in effect, gives him a title, and protects him against the person otherwise having the title by depriving such person of any remedy. It was said, in that case, to be against the public policy of England for ecclesiastical corporations and persons to convey their real estate, and thus defraud their successors and deprive the public of the benefit of such property, and hence alienations by them were totally prohibited. What was there said about public policy had reference to the construction to be given to the statute of Elizabeth under consideration. It was claimed, on behalf of the title of the Earl of Oxford, that the statute did not prohibit an alienation to the queen, because she was not named therein, according to the general canon of construction, that the sovereign being a part of the legislative power, was not bound by any act of parliament, unless named therein by special and particular words; but it was held that that statute, founded upon public policy, and made to preserve important public rights, should be construed to prohibit alienation to the sovereign as well as to private individuals. It was not decided that because the alienation in that case was against public policy, therefore the statute of limitations should not apply. It was simply decided that the alienation to the queen was within the prohibition of the statute, and that the fine was a species of conveyance suffered and permitted, and hence that that did not give the Earl of Oxford title.
It is probably true that the restraining statute of Elizabeth became a part of the common law of this State, and that, prior to our general law upon the subject, no religious corporation could convey its real estate without an act of the legislature. *Page 148 (Madison Avenue Baptist Church v. Baptist Church in OliverStreet, supra.) But since our statute authorizing the sale of the real estate of religious corporations upon the order of the chancellor, it cannot be said to be against public policy for such corporations to sell their real estate, for such sales are expressly permitted. Such sales are simply against public policy, unless authorized by the proper tribunal, in the same way that the sale of the lands of infants is against public policy, unless authorized by some court.
But suppose it be conceded that the sale of the real estate of religious corporations is against public policy, and to be, on that account, absolutely prohibited, could they not still lose title by adverse possession? As above stated, the statute of limitations is founded upon public policy. It has been part of the public policy of all civilized nations (except the Jewish), that long continued possession of the soil, under claim of right, should bar a recovery by the true owner, and no legislative action has been more universally sanctioned by the practice of nations and States, and popular approbation, than that exercised for quieting a long, undisputed possession of the soil. (Angell on Lim., §§ 8, 9.) The common-law maxim, Nullus tempus occurritregi, has, for more than 200 years, ceased to be fully operative in England. The repose of titles is considered more important than the sovereign right of States and kings. Here are two laws, one prohibiting the alienation of real estate by religious corporations, and the other providing that "no action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained, unless it appears that the plaintiff, his ancestors, predecessor or grantor was seized or possessed of the premises in question within twenty years before the commencement of such action." (Code, § 78.) Both laws are founded upon public policy. There is no collision between the two. The latter applies to corporations as well as individuals, and why should it not have effect according to its terms, and the policy upon which it is founded in all cases be upheld? Who shall determine that it is more important to the public *Page 149 that such corporations shall forever retain their lands than it is to uphold the title to lands long in undisputed possession? I can perceive no just reason for engrafting an exception upon the statute which its language clearly does not warrant. The legislature has incorporated in the statute all the exceptions which were deemed important, and the courts should not add to them upon any supposed reason of public policy. If public policy requires that religious corporations should be exempted from the operation of the statute of limitations, the legislature, and not the courts, should provide for the exemption.
It follows, therefore, that while the High Dutch Reformed Church of Schoharie did not, by any proper conveyances, divest itself of the title to the premises at Gallupville, it lost its title by adverse possession, and the plaintiff acquired the title. What title to the premises did the plaintiff get? I answer, the same which was conveyed to the High Dutch Reformed Church of Schoharie by the deed of April 15, 1835. Neither it nor the society which preceded it, so far as I can discover, ever claimed more. Upon the argument before us plaintiff's counsel did not claim more, and I do not understand that defendants' counsel disputed that if plaintiff had any rights they were such as the High Dutch Reformed Church of Schoharie would have had if it had continued in possession of the premises, and had been plaintiff. It therefore becomes necessary to construe the deed to that church. That deed, excepting as reserved therein, conveys the premises described to the High Dutch Reformed Church of Schoharie. The reservation is of a "right or privilege" to Ezra Gallup, Jr., one of the grantors, "to grant a right" in the premises to a certain company, upon certain conditions, to wit: To build a basement story on the premises, of certain dimensions, to be used for the sole purpose of keeping school therein, with the right of passage to and from the basement over the lot for teachers, scholars and others to go to and from the school room; the basement to be under the church, and the religious society to build the church on the walls of the basement. The deed also contains a provision *Page 150 that if the church society should at any time desire to purchase the basement story, it could do so by paying the cost of the same. Taking all the provisions of the deed together, I entertain no doubt that the fee of the lands described was vested in the grantee, and that the reservation was of an easement to build upon the land the basement story, and use and occupy the same for school purposes until such time as the grantee should desire to purchase the basement, when, upon payment of the cost thereof, the rights reserved should be conveyed and cease. The church had no right to possess or use the basement room for any purpose. The possession and use of that was under the control of the school trustees. The right to the basement was not forfeited or lost by any omission to use it. Neither was it forfeited by any use of it for other than school purposes. The church could, probably, by injunction, restrain any other use of it, and could doubtless sue any person who passed over their land to the basement to use it for any other purpose. The fee and the possession of the land was in the plaintiff, subject to the easement, and any use of the premises for any other purpose than that mentioned in the reservation was a wrong to the plaintiff, to be redressed in a proper action.
The school trustees had no interest in the land, except the right to have the basement and school room remain there, and to have access thereto. When the scholars and teachers were in the school room, they were upon plaintiff's premises, in the enjoyment of the easement reserved. When defendants were there they were upon plaintiff's premises without any right, and I am of opinion that they could be removed by action of ejectment. Suppose a merchant should open a store in the basement or a family should move in for residence, what is the plaintiff to do in such a case? I entertain no doubt that it would have a remedy by ejectment. It is true that an action of ejectment will lie only in case the plaintiff had at the time of the commencement of the action a right of entry into the premises claimed and the right to the possession thereof. But the owner of the fee of a public highway in *Page 151 which the public have an easement for travel may maintain ejectment to recover the land within the limits of the highway, against any one who has appropriated the same to a purpose not authorized by the easement, and in such action the sheriff can execute the judgment by delivering possession subject to the easement. (Goodtitle v. Alker, 1 Burrows, 133; Etz v.Daily, 20 Barb., 32; Brown v. Gulley, Lalor's Sup. to H. D., 308; Wager v. Troy Un. R.R. Co., 25 N.Y., 526; Lozier v. The N.Y.C.R.R. Co., 42 Barb., 465.) In this case the defendants were upon plaintiff's premises, possessing and withholding the same, and as they did not in any way connect themselves with the easement or the owners thereof, it was proper to award the possession of the premises to the plaintiff.
The possession of the defendants at the time of the commencement of the action was alleged in the complaint, not denied in the answer, and was therefore admitted. I am, therefore, of opinion that the verdict directed at the Circuit was right, and that the order of the General Term should be reversed and judgment ordered upon the verdict for plaintiff, with costs.