The assignment or supposed conveyance by the plaintiff, Samuel Voorhees, to Betsey his 'wife, on the 1st day of January, 1840, transferred no right to her. The right to a pew is an interest in real estate. (First Bap. Ch. of Ithica v. Bigelow, 16 Wend. 82, Vielie v. Osgood, *1058 Barb. 150.) And the husband cannot convey immediately to the wife. (Co. Litt. 3 a, 112 a, and Harg. notes, 3 a. Clan. Rights of Mar. Women, 1., 4 Cruise, 22. 2 Kent, 129. Beard v. Beard, 3 Atk. 72. Moyse v. Gyles, 2 Term. R. 385.) The husband may create a trust in favor of the wife; and equity will sometimes enforce his contract for her benefit. (2 Stor. Eq. Jur. §» 1374,1375.) The wife therefore, was not a proper party. Perhaps if the case turned upon that point, the misjoinder could be corrected by amendment. (Code, §§ 173, 274.)
There can be no doubt that the act to provide for the incorporation of religious societies, passed on the 5th of April, 1813, is in force, notwithstanding the subsequent revisions of the constitution and the statutes. (Tucker v. St. Clements Church, 3 Sandf. S. C. R. 242. Robertson v. Bullions, 9 Barb, 87.)
The learned judge, in giving his opinion in this case at special term, was inclined to believe that, under the 4th section of the act, the intent of the legislature was to give effect, even to a parol trust in favor of a religious corporation, and that the statute requiring declarations of trust to be in writing, did not apply to trusts in favor of a religious society. (8 Barb. 141.) And it was held by Assistant Vice Chancellor Sandford, that the revised statutes relative to uses and trusts do not apply to charitable uses. (Shotwell v. Mott, 2 Sandf. Ch. R. 46.) With all deference, I think both propositions unsound. The statute “ of uses and trusts.” is express, positive and distinct, and abolishes every use and trust, except as authorized and modified by the same article. (1 R. S. 727.) The opinions of Wright, J, in Yates v, Yates, (9 Barb. 324,) and Duer, J. in Ayres, v. The Meth. Ch. (3 Sandf. S. C. R. 351,) on this point, are very able; and show that there is no qualification or exception, express or implied, in favor of public trusts or charitable uses, lío stronger or broader language could well be used, than that “ uses and trusts, except as authorized and modified in this article, are abolished.” Any specification or enumeration would, almost necessarily, have weakened its effect. Subsequent enactments, authorizing certain trusts and charitable institutions, are also evidence of the intention of the legislature, (Laws of 1840, *106ch. 318. Laws of 1839, ch. 174 and 184. Laws of 1841, ch. 261. Laws of 1848, ch. 319.) Nor could the trust claimed to exist in this case, be created by parol, unless the transaction came within the exceptions of the statute. (2 R. S.134, § 6, 1 Id. 728, §§ 51, 2, 3.) Resulting trusts may arise by payment of the purchase money, or a portion thereof, by a third person, in favor of the creditors of the latter ; also, where the alienee takes the deed by mistake, or in fraud, or in violation of a trust. The first answer states that De Forest and his associates were to receive the conveyance in trust for the corporation; and after reimbursing the “ stockholders,” and indemnifying themselves by the sale of the pews, &c. they were to convey to the corporation. The answer, a copy of which is found at the end of the paper book in this case, and which it is stated the defendants “ claimed to incorporate into the original answer,” charges that Do Forest and his co-grantees took the conveyance in their own names, without the knowledge or consent of the corporation and society, and in violation of the trust which they had asr sumed. It is also stated this answer is to be deemed to have “ been replied to.” But supposing it to form a part of the pleadings, there is not any proof whatever, to sustain the above allegation. On the contrary, the proof is, that only part of the expense of building the church was paid by the subscription, and the pews were sold and the proceeds applied to that purpose; the purchase money also applying on the subscription of the purchaser. And the subsequent deed from De Forest and others to the corporation, in which a consideration of $5000 is expressed, and which contains covenants for quiet enjoyment, excepts and reserves “to the owners of the pews and slips,” “the right to use the same in perpetuity.” There was, therefore, no resulting trust. (Bodine v. Edwards, 10 Paige, 504. Ostrander v. Livingston, 3 Barb. Ch. R. 416. Norton v. Stone, 8 Paige, 222.) Nor, indeed, any evidence that any was intended by the parties. A religious corporation may take and hold property, for the purposes of its corporate existence. And the donor or grantor may specify to what particular use it shall be appropriated, if it be one of the objects of the incorporation. In *107Tucker v. St. Clement’s Church, the grant to the corporation Was upon condition that the income of the property should be applied to the maintenance and support of their own rector and minister. The grant being directly to the corporation, there was, in reality, no trust, as the supposed trustee was, in fact, the cestui que trust; the grant being for the benefit of the corporation, and for a purpose to which, without such condition, it ought very properly to be applied.
From the pleadings and proofs in this case, it is very clear to my mind that there was a verbal arrangement with the corporation, the subscribers, and De Forest and his associates, who were selected as a building committee, that the latter should take the avails of the old church and the subscriptions, and purchase a site, and build a house, and sell the pews, allowing subscribers to purchase on their subscriptions; being in fact an agreement for the purchase and sale of pews: and when all they should advance had been repaid to them, they were to convey to the corporation. If A. builds a church on his own land, verbally declaring that he intended it for the use of a particular religious society, the latter obtains no title, legal or equitable, by such declaration. In this state, in cases in which they can hold real estate, a trust cannot arise, be created, or declared, in favor of incorporated religious societies, by parolj except in those cases where it could arise, be created or declared, in favor of a private person. They have the same rights, and no other, in this respect, as others. The same rule as to uses and trusts, as to the statute of frauds, and the mode of acquiring real property, applies to them.
In this case, if the whole arrangement or agreement had been in writing, there would have been no difficulty. If the corporation had attempted to withhold the avails of the old church, they could have been compelled to perform or pay damages. Nor could the building committee have been restrained from a sale of the pews to obtain repayment of what ..they had advanced, even if the trustees of a religious corporation can do no more than lease the pews, except by the order of (the chancellor formerly and now of) this court or the county court, upon *108which I express no opinion. (5 Cow. 496; 8 Barb. 149 et seq.) The legal title being in De Forest and others, they could convey; and not only so,'if the subscription and payments thereon were upon those terms, they could have been compelled to perform. And so with the trustees, if they had obtained the means to purchase the site and erect the edifice upon a similar agreement. There is no rule of law by which such corporations, any more than others, can obtain and retain property in violation of their contracts, and without compensation. But all the stipulations, express or implied, except the subscriptions and the conveyances, seem to have been verbal. However, as the committee received the avails of the old church, and the sums raised by subscriptions and sales of the pews, therti was such part performance as would have authorized a court of equity to interfere, had they refused to convey. Both the corporation and the pew-owners would have been entitled to a performance, after the claims of the committee had been satisfied; Hot So much on the ground of a trust in the ordinary sense of that term; but upon the agreement. The deed to Voorhees was therefore good. Hot being attested by a witness, or acknowledged, it would not have been effectual against a purchaser or incumbrancer until acknowledged ; but was good as against the grantors. (1 R. S. 738; C. & Hill’s Notes, 1269 et seq. 2 Bl. 309 and note. 1 Barb. 531.) And, as the deed excepted and reserved the pews to the owners, I think the trustees were not purchasers, as against him, within that statute. It is riot clear that a purchase in such case, to avoid" the deed, must not he bona fide; and if so, the exception and reservation in' the deed to the trustees was sufficient io put them on inquiry; particularly as the plaintiff had been in possession under his deed about two years before the conveyance to them.
Upon the hypothesis that the deed to Voorhees was void, it is said the reservation of the use of the pews, being to strangers, is also void; (8 Barb. 147. Jackson v. Swart, 20 John. 87. Co. Litt. 47, a. 4 Kent, 468. Hornbeck v. Westbrook, 9 John. 74.) Whether this is not an exception instead of a reservation; within Doe v. Lock, (2 A. & E. 724, *109S. C. 4 N. & M. 807,) and would have passed as a grant, if the trustees had also signed the deed given to them, within Wickham v. Hawker, (7 M. & W. 63,) is not important, in the view I have taken of the deed to Voorhees. The recital of the deed to the trustees, however, may at least be considered evidence against the grantees that there were owners of pews in that church at the time. (9 Paige, 659. C. & Hill’s Notes, 1601,1235, 1258. 4 Denio, 480.)
But the deed to the plaintiff did not convey 'to him an unqualified estatea right to the soil upon or over which the pew stood. He took a limited estate; a right to use the pew as a seat in a place of religious worship, as long as the house might stand; subject to the more general right of the corporation in the soil and freehold. (Shaw v. Beveridge, 3 Hill, 26. Baptist Church v. Witherell, 3 Paige, 302. Freligh v. Platt, 5 Cowen, 494. Heeney v. St. Peter’s Church, 2 Edw. Ch. R. 608. Gay v. Baker, 17 Mass. Rep. 435. Perrin v. Levitt, 10 Id. 325. 16 Wend. 32. Hill. Ab. 4.) The plaintiff, from the very subject matter of the conveyance, nfust be presumed to have taken it subject to all the conditions and limitations incident to such property. If the edifice becomes useless by dilapidation, or is destroyed by fire or any casualty, the right of the pew-holder is gone. And so if, from decay or other injury, the house has to be rebuilt. But if for convenience or from expediency, and not from necessity, the pew is destroyed, the owner has a right to indemnity. Neither the corporation, nor a majority of the congregation, can, for mere purposes of improvement or embellishment, deprive the pew-owner of his property ; certainly not without compensation. But if, from the condition of the building or the pew, the latter becomes useless, and it becomes necessary and proper to rebuild the pews instead of repairing them, I think that it can be done without compensation to the pew-holders. And if it may, they cannot complain that another plan or arrangement of the pews is adopted^
Applying these principles to the case before us, the question is, were the defendants justified, under the circumstances, in destroying the peW of the plaintiff? One part of the relief de*110manded is, that the plaintiffs may be restored to .the possession of the pew and the place formerly occupied thereby. This cannot be done. The plaintiff cannot be allowed to occupy the pulpit, which is now there. Bub if the demolition of the pew was unauthorized the owner is entitled to compensation.
[St. Lawrence General Term, September 5, 1853.Hand, Cady and C. L. allen, Justices.]
Did the defendants show a case of necessity 1 The carpenter testified that the building needed large repairs. Some of the pews were loose and some of them were drawn away from the wall; and the house was uncomfortable in cold weather; and there was much defect and decay. That the foundation had become defective, and both of the side walls had spread out and were kept together by the weight of the roof; and that had been a subject of apprehension for years ; the chimneys were cracked so as to let the smoke and soot through, and rested on decayed planks. That some of the tie beams near one of them were burned a little; the timbers were rotted off, near one corner; the roof leaked, and the floor was shrunk and hád to be relaid ; and that, in short, it was not true economy to patch up the old building at all. If this was a true statement of its condition,his conclusion was right; probably it would have been true economy to have rebuilt entirely. But it is sufficient, for the defendants, that it was dangerous for the society to worship there, to say nothing of the inconvenience, and that from necessity the defendants were obliged to rebuild it, substantially, all but the walls.
Upon the whole view of the case, we think the judgment should be affirmed.
Judgment affirmed.