On the argument, several nice, and delicate questions were raised for pqr decision, The property in dispute is understood to be valuable, and being appropriated for religious and other beneficial public pur-, poses, it is desirable that a compromise should bp effected, between the parties, upon principles, qf mutual concessjqn, whereby the ends qf the original grant may in some way, "be attained. My opinion, will leave the door to compromise open, and if the parties shall not avail themselves qf this opportunity to adjust the controversy, by amicable arrangement among thems.elves, tfiey must abide the consequences of such decisions as the, coyrt shall, in the course of future litigación, feel itself bound to pronounce.
The lessors of the plaintiff found their right to. a recovery, upon the legality and validity of the election of trustees, in November, 1805, conducted, as they contend, in conformity to the original charter. They deny the right of the legislature to make the law of 1803 ; but even conceding that the legislature had the right, they allege that the law was obtained by fraud and misrepresentation, and ought, therefore, to be avoided.
The defendant denies the legality of the election of 1805, inasmuch as episcopalians, exclusively, were permitted to vote thereat. But, admitting that the charter gave to episcopalians only the right to vqte, he says, that the act of 1803 has altered and modified the charter, and that lie derives his possession from tfie trustees chosen pursuant to that act.
The trustees of the parish, of Newburgh are a body corporate, and it is taken fpr granted, on all hands, that the title to the land in controversy is vested in that corporation, or those claiming under it. And, in my- view of the subject, the only question presented by the case is, who are the members composing this corporation.
To determine that question, the counsel on both sides have proceeded on the idea, that a decision as to the validity of one or both of the elections of trustees, is necessarily involved. I think differently. The question *134in this action is not,-, who are the trustees dejure, but who - are the trustees' dé facto. As long as the conflicting claims of these different sets of trustees, both elected under colour of right, to the exercise of the corporate rights, remain undetermined, so long the possessions held under either, ought not to be disturbed. I am satisfied, that in the present suit, these claims cannot be tried. If an inquiry into the qualifications of the persons who were permitted to vote at the election of 180S, can be made, the same inquiry is equally proper, as to the qualification of those who voted at the election of 1803. In fact, the regularity of every part of the elections would be open to investigation. This would be, not only an unprecedented mode of proceeding, but contrary, in my opinion, to known and well settled rules. z
The defendant is in possession, under the trustees elected, pursuant to the act of1803. I intend, that he is in possession under a lease, sealed with the corporate seal; and those trustees, as it respects this portion, at least, of the lands belonging to the corporation, must be regarded as the trustees defacto. They were elected before the other set of trustees, under an existing law of the legislature, and until they are ousted, the court is bound to protect the possession of their tenant.
The only way in which the legality and regularity of these elections can be settled, is by information, in the nature of quo warranto, under our statute. This is the appropriate remedy, in all cases of contested corporation elections ; and either of the present parties may resort to it, to have their rights fully investigated, and finally determined.
Until it shall have been determined by this mode of proceeding, who are the rightful and legitimate representatives of the corporation, I shall be unwilling to disturb the possessions of either of the parties. My opinion, accordingly, is, that a new trial ought to be denied.
*135Spencer, J.The plaintiff having been nonsuited at the trial, it becomes a question, whether a title has been deduced under either of the demises. The first demise is from the religious incorporation, formed under the statute, on the 4th November, 1805, and their title is supposed to have commenced, at the time of the incorporation, and to extend to such real estate, as the original trustees, Golden and Albertson, held under the grant, of the 26th March, 1/52. Upon the principles of the common law, this religious incorporation could take such property only, as had been granted to it, by its corporate style, and not being in esse, when the first grant was made, it could not acquire any interest by relation. If, therefore, it became invested with any property in the lands granted to Colden and Albertson, it can only be under the provisions of the general statute. To acquire a title by that statute, it is necessary, that the grant should have been to the corporation, to the congregation, or society, or to Golden and Albertson, for their use. By a reference to the charter, it will be seen, that although Golden and Albertson were trustees, they were not trustees exclusively, for the benefit of that society, but for the benefit of a minister of the church of England, and. a schoolmaster, in the proportion which the trustees shall think meet and convenient ; so that the trustees had a discretionary controul over the fund, the profits of which they could distribute, as they saw proper. It appears to me, that under the charter, therefore, it cannot be contended, that the corporation acquired any legal interest in the land itself, they not being cestui que trusts, for the entirety, nor for any definite proportion of it.
The second and third demises, involve the same question, except so far as respects Cave Jones, and that is, whether the election of the 4th November, 1805, was a valid election, and conferred on the lessors, the legal estate to the lands in controversy. The case states, that a large majority of the inhabitants, .of the German patent, who assembled to vote, were not episcopalians, and for *136this reason only, their votes were refused, and that none but episcopalians, who did not compose one-tenth part of the inhabitants, were allowed to vote at that election. The right of election is expressly given, by the charter, tó all the male inhabitants of the German patent, who are above the age of twenty-one years. The trustees, when elected, have the disposal of the revenues of the glebe;, and áre to distribute them, as they think meet, between the minister and schoolmaster ; the minister is required, by the charter, to be of the church of England, and has the care of souls of all the inhabitants on the patent, whilst the schoolmaster may be of any religious denomination, and it is his duty to instruct'the children of all the inhabitants.
From this statement, it would seem to me, most conclusively, that no court of law, called upon to pronounce, not to make the law, can hesitate in saying, .that all the inhabitants of the German patent, have an important right, secured to them by the charter, of electing trustees, to make, not only the selection of a schoolmaster, but to decide on his salary.. Of this right, they ought not to be deprived, from a supposed inconsistency, that persons of various religions, may, under the words of the charter, interfere in the choice of an episcopalian clergyman, or may be averse to the employment of one of that order.
It must have been foreseen, when the charter was granted, that there would be persons of different modes of religious worship on the German patent; yet, still, they were to be admitted to a participation in the elections. It cannot be requisite to advert to other parts of the charter, to enforce the propriety of the opinion I have formed j if it was necessary, my opinion would receive additional force, from that part of the charter which enables the trustees to hold fairs, in which, as well as in the choice of a schoolmaster, all the inhabitants have a vested interest, by the charter, and consequently, cannot, and ought not, to be deprived of the right of choosing their trustees, on the propriety, and *137fidelity of whose conduct, their rights, in a great measure, depend.
With respect to the demise from. Cave Jones, there is ño pretence to say, that he acquired any legal title to any portion of the lands, under his induction and settlement. The only claim he had, was to such part of the revenues of the glebe, as the trustees thought proper to give him.
The plaintiff having failed to show any title, the defendant cannot be disturbed in his possession. This view of the case, renders it unnecessary td consider the objections raised to the act of the 6th April, 1803. My attention has not been particularly directed to the consideration, whether the legality of the election of trustees, can be tried in this collateral way, inasmuch as both parties have considered the validity of the election of November, 1805, fairly before the court, without any objection to the manner in which it has been presented. In my opinion, the nonsuit ought to be confirmed; and that, consequently, the plaintiff must take nothing by his motion.
Kent, Ch. J. and Thompson, J. having been absent, from indisposition, on the argument of the cause, gave ne opinion.
Rule refused.