This is an action of ejectment brought by the plaintiff to recover the possession of the basement of a church edifice in Gallupville, Schoharie county.
I think that the High Dutch Reformed Church of Schoharie, under which the plaintiff claims, must be deemed to be incorporated. There has been an exercise of corporate powers so long and continuous that it must be deemed to have a charter by prescription. (1 Black. Com., 473; 2 Coke's Inst., 330; Angell and Ames on Corp., §§ 69, 70, and cases cited.) The use of corporate powers dates back to a period of fifty years before the American revolution, when the common-law doctrines of prescription must be presumed to have been recognized.
This organization had the title to the locus in quo. The conveyance of Gallup and Wheeler of April 15, 1835, conveyed *Page 152 the premises on which the basement stands, reserving a "right or privilege to the grantor, Gallup, to grant a right in the above-named premises, by his indenture to a certain company, on the following conditions: To build a basement story on the above-named premises, of prescribed dimensions, for the purpose of keeping a select or other school only, with a privilege on said lot for the scholars, teachers, etc., to pass and repass over said land; the basement story to be built on the premises within three years, and the church to be built on the basement." The basement story was not to be occupied for holding religious meetings of any kind. The High Dutch Church was to have the right to purchase the basement at first cost and interest.
At the same date (April 15, 1835), Gallup conveyed to three persons, named as trustees of a corporation, according to the reservations in the conveyance to the High Dutch Church.
Under these conveyances it cannot be doubted that the land, before any building was erected, belonged in fee to the High Dutch Church. That body took it burdened with a right or privilege to have a basement story erected upon it by others, and with an obligation to erect a church structure over the basement;prima facie, these were merely restrictions upon the mode of use of the land, and did not change the ownership otherwise existing in the church. It is, of course, true that one person may own the basement of a building and another may own the superstructure, each owning in fee; whether this is true in any particular case is a question of construction upon the instrument. The reasonable interpretation of the present deed is that it simply conveys an easement. No estate is reserved to the grantor, but only a right to convey to the trustees. The trustees have no exclusive use of the property as would be natural in conveyances of the fee. They can use the basement for school purposes only. The scholars and teachers have but a privilege to pass over the land to approach and resort to the school room. Taking the whole transaction together, the trustees had but an easement, which could only be claimed for the exact purposes pointed *Page 153 out in the grant. The present defendants had no rights in the basement, and were clearly trespassers. Having denied the rights of the plaintiffs, they are liable to an action of ejectment, providing that the plaintiffs have any rights in the premises. If the title is still in the High Dutch Church of Schoharie, the action must, of course, be brought in its name. In further support of the view that this is an easement, it should be noticed that the trustees of the school do not have exclusive possession. When that is the case, the grant of the use may, in some cases, be equivalent to the grant of the soil. Thus, inKing v. Inhabitants of All Saints (5 M. S., 90), it was considered that an exclusive right to take the sand and gravel from the bed of a river constituted a tenement. So Lord COKE says: "If a man grant to another to dig turves in his land and to carry them away at his will and pleasure, the land shall not pass, because but part of the profit is given, for trees, vines, etc., shall not pass; but if a man, seized of land in fee, by his deed granteth to another the profit of those lands, to have and to hold to him and his heirs, the whole land doth pass; for what is the land but the profits thereof?" In another place he says: "By the grant of a `boillourie' of salt, it is said that the soil shall pass, for it is the whole profit of the soil." (1 Coke upon Littleton, 4 b; see, also, Earl of Bute v. Grindall, 2 H. Bl., 265; King v. Tolpuddle, 4 T.R., 675; Bent v.Moore, 5 id., 322.)
According to this principle, if the party does not have an exclusive right, but enjoys possession with the general owner, the case is one of an easement. This is true of the case at bar. The trustees could only hold the room for school purposes. The church had the right of use for every other purpose except that of holding religious meetings. There was no exclusive possession by the school trustees. Their right closely resembled that of pew-holders in a church. It is perfectly consistent with ownership in the church authorities to have the right or easement of keeping school held by another. Thus, a town may have an easement in a parish meeting-house to hold public meetings therein. (Medford v. Pratt, 4 Pick., 222; Washb. on Easements, 573.) *Page 154
If the title to the property were still remaining in the church corporation as it stood in 1835, an action of ejectment would lie against the defendants claiming ownership. The next inquiry is, whether that has been transferred to the present plaintiff. It is urged by the appellant that it acquired the title of the Reformed Dutch Church in Schoharie, by the resolution of the consistory of that church in 1844.
There had been an application in behalf of the eastern part of the congregation (worshipping at the Gallupville church) to be separated and set apart, that they might be organized into a separate congregation. On careful consideration, it was resolved that all that part of the congregation east of a certain line should be separated from the parent or mother church and be organized into a separate and distinct congregation, according to the constitution of the Reformed Dutch Church, and that the building or edifice called the Gallupville church and its appurtenances be the exclusive property of that part of the congregation, to have and to hold to them and their successors in office forever. There were certain other provisions to effectuate the separation not necessary to be detailed. The classis were then requested to meet as soon as practicable for the purpose of ratifying the proceedings. It was subsequently reported to the consistory (July 29, 1844) that the request to the classis had been granted.
It may be conceded, for the purposes of this case, that the resolutions of the consistory, with the stipulations of the respective parties, were sufficient to give an equitable title to the plaintiff, provided that it had then been competent to take a title. This title would not be sufficient on which to base an action of ejectment, as the plaintiff must recover on the strength of his title in a court of law.
To make out a legal title the plaintiff relies on the statute of limitations. It asserts that it took by color of title, under the resolutions already referred to, all of the title of the parent church, and has held possession adversely for more than twenty years. It has thus, according to this claim, a valid title against all mankind, on which it can bring an action of ejectment. *Page 155
There are two questions to be considered here: One is, whether an unincorporated association can hold adversely; the other, whether the statute of limitations can be applied to the title of a church? Can the statute of limitations be set up as against the Reformed Dutch Church of Schoharie?
In examining the first point it will be necessary to consider whether the unincorporated association which the plaintiff now represents could set up the statute of limitations as an affirmative claim. Suppose that the plaintiff had not been incorporated at all (though it was in 1869), could it at the present moment have urged that it had obtained a title by adverse possession? I think not, either by general rules of law or by the provisions of the Code of Procedure. By general rules of law the act of obtaining a title by adverse possession is a species of purchase, and gives a perfect title, thus having the effect of a regular conveyance. (Washb., vol. 3, pp. 145, 146.) It is so ranked by all the text-writers, and must be so from the nature of the case, there being but two modes of acquiring title to land — descent and purchase. There could not be a purchaser without legal capacity to take a title. It is well settled that an unincorporated association cannot take a legal title, whatever may be true of its capacity to be a beneficiary or cestui quetrust. (Thomas v. Marshfield, 10 Pick., 367, 368; Dr.Ayray's Case, 11 Rep. [Coke], 21; Jackson v. Corey, 8 Johns., 388; Hornbeck v. Westbrook, 9 id., 74; Harriman v.Southam, 16 Ind., 190; 14 id., 89.) It could not have been fairly claimed that the grant would have inured to the benefit of individuals attending the church, as they were not named, and the intent plainly was that the use of the property should appertain to the respective attendants upon the church services from time to time. Conceding that this was a valid trust, a trustee must be found or appointed. The existence of such a trustee would be fatal to an action of ejectment brought by the beneficiaries in their own name.
If these principles are correct, it is impossible to claim that the society could get a title by force of the statute of limitations. It is of the essence of adverse possession that the *Page 156 rightful owner should be kept out of possession by some person claiming title, and against whom he could bring an action to regain possession. Says Washburn: "If there is any period during the twenty years in which the person having the right of entry could not find an occupant on the land against whom he could bring or sustain an action of ejecment, technically called the `tenant to the præcipe,' that period cannot be counted against him as part of the twenty years." (Vol. 3, 125 [3d ed.].) Whom could the Reformed Church of Schoharie have sued in the present case? Certainly not the unincorporated association, which for this reason cannot claim the benefit of the statute of limitations.
The same result is reached by an examination of the Code of Procedure. All of the sections there refer to a person as claiming title. (§§ 78, 79, 81, 83, 85-88). According to all ordinary rules of construction, the word "person" here means an individual, corporation or association, qualified to appear as such in court, as, e.g., a joint-stock company under the statute. It can by no reasonable principles of construction be extended to an unincorporated religious body, like the church organization in question before incorporation. For these reasons, I think that the statute of limitations did not begin to run until the plaintiff was incorporated.
There is another difficulty in the case at bar. The law of this State does not permit a religious society to alienate its lands without the consent of the court. (M.A. Baptist Church v.Baptist Church in O. St., 46 N.Y., 141.) While no such restriction may have existed at common law, statutes were passed in the reign of Queen Elizabeth expressly taking away from ecclesiastical corporations the power to sell or alienate their land. The case above cited holds that these restraining statutes were, in fact, introduced into the Colony of New York, and became operative as a part of the common law of the colony. (See, also,Bogardus v. Trinity Ch., 4 Paige, 178; De Ruyter v.Trustees of St. Peter's Ch., 3 Barb. Ch., 119; S.C.,3 N.Y., 239.) The statute law of the State permits the court to authorize a sale. This, however, is a sale in *Page 157 the ordinary sense of the term. It does not mean a consolidation of the property of two churches, even of the same denomination, into one (see Baptist Church Case above); nor by parity of reasoning would it include the present case, where the main object of the transfer was to divide a single church into two distinct organizations. Such a transaction can in no proper sense be regarded as a sale
The present transfer could only be authorized by the legislature; being in its nature wholly void as opposed to public policy, the transfer by the resolutions gave no title. The statute of limitations, for a like reason, could not bar the title of the Reformed Dutch Church of Schoharie. Where there is no capacity to sell on grounds of public policy, the statute of limitations does not attach. This has been expressly held under the statute of Elizabeth restraining alienation by ecclesiastical corporations. (2 Greenlf. Cruise Dig., 262, par. 47.) It is there laid down that ecclesiastical corporations, and generally all ecclesiastical persons, seized in right of their churches, being restrained from alienation by several positive laws, are notquoad 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 the recovery of their possessions within the time prescribed by those statutes. (Citing Magdalen College Case, 11 Coke, p. 78, b; see, also, Plowd., 358.)
The Magdalen College Case arose under the statute of 13 Elizabeth (chap. 10), restraining ecclesiastical and collegiate corporations from making conveyances of land. One question in the case was, whether a fine and proclamation in the nature of a statute of limitations would bar the title? It was held that it would not. The court said that it would have been of none effect to have prohibited them to bar the right of their colleges by conveyances made by the master and fellows, etc., and to have left them power by their permission or sufferance and non-claim to bar it. (11 Coke, p. 78, b.) I do not see but that this reasoning is applicable to the condition of our own law. The doctrine of the Baptist Church *Page 158 Case (46 N.Y., 141), declaring that sales or transfers of church property are void unless sanctioned by the court or the legislature, as the case may be, can only be fully carried into effect by declaring that these bodies cannot indirectly transfer their property by permitting an intended transferee to hold adversely, and thus set up the statute of limitations. In the present case, if that were allowed (all the parties being assumed to know the law), there would be a transparent evasion of the restraining law.
On the whole, the plaintiff has no legal title in the case at bar sufficient to enable it to maintain an action of ejectment. This result makes it unnecessary to consider the other questions discussed in the argument
All concur with EARL, C., for reversal, except DWIGHT, C., dissenting.
Order reversed, and judgment ordered for plaintiff on verdict.