dissenting. The deed to the High Dutch Reformed Church of Schoharie conveyed the entire fee of the premises, reserving to one of the grantors the right to grant to certain parties the right to build a basement, to be used “ for the purpose of keeping a select and other schools in only.” Under this conveyance the church took a title subject to the use of the basement as provided. When the basement ceased to be used for the purposes specified, there was no authority, upon the part of the trustees of the school to whom it was conveyed, to use the same for any other purpose. The defendants, therefore, had no right whatever to use or occupy the property, and have not even a claim of title.
As to the plaintiff’s right, it is founded upon the action of the High Dutch Reformed Church of Schoharie. In June, *2121844, when at a meeting of the consistory and congregation, of which, the plaintiff constituted a part, a resolution was passed, by which it was organized as a separate and distinct church; and it was declared that the building and church at Gallupsville, “ with the appurtenances thereunto belonging, shall henceforth belong to and be the exclusive property of that part of the congregation hereinbefore designated as a separate and distinct congregation, to have and to hold the same to them and their successors in office.”
Under this resolution the new church took possession, and in this edifice have the congregation worshipped from that time until this action was brought without any disturbance and without any question being raised as to their right. It is true that the plaintiff had no deed or written title, absolute and direct upon its face, in legal form, but it had a claim or color of title by virtue of the resolution under which it entered, took possession and occupied for upward of twenty-five years without any interruption and adversely to any claim of the-mother church, from which it has separated, and to the whole world. This occupation was not only under a claim of right, but with the knowledge and acquiescence of the original owner. (Flora v. Carbean, 38 N. Y., 111; Howard v. Howard, 17 Barb., 663; La Flombois v. Jackson, 8 Cow., 589.) It matters not whether the title was a good one or otherwise, and is quite enough that the possession was under color and claim of title, exclusive of any other right. This is all which is required. (Mosher v. Yost, 33 Barb., 281 ; Jackson v. Newton, 18 John., 355; Jackson v. Ellis, 13 John., 118.) Concede that there was no lawful conveyance to the plaintiff and that the High Dutch Reformed Church of Schoharie, being a religious corporation, could not divest itself of title without an order of the court; yet as the plaintiff held possession adversely under a claim of title, it acquired a title which no one could disturb. The High Dutch Church, under whom they claimed to hold, would be precluded from recovering the premises by the adverse possession and estopped, I think, by the resolution by which they *213surrendered all their rights. Ho action, then, could be successfully maintained against the plaintiff by any party for the recovery of the property, and it held it by possession under a claim of title. It had an equitable title, at least, which could not be disturbed, and was entitled to maintain an action fur any interference with its rights.
. The plaintiff having title to the church, subject to the right to the use of the basement for school purposes, had for about fifteen years prior to the time when the defendants took possession of the basement, been in the actual and.continued possession of the same. It had been abandoned for school purposes by the trustees, and suffered to remain unoccupied and to decay. It was taken possession of by the church officers, repaired, put in order, the property of the church kept there, and by the permission of the officers a school at times was kept there. The sexton of the church all the while kept the key and the officers of the church exercised acts of ownership over it, until the defendants, without permission or authority, took possession of the same. Independent of any absolute title, the possession of the plaintiff under a claim of ownership was sufficient to maintain this action as against the defendants, who were trespassers and intruders, and who had no title or claim of right whatever. Where neither party has title, the one showing the prior possession shall recover unless the last possession has been adverse for twenty years. (Jackson v. Hubble, 1 Cow., 613; Jackson v. Harder, 4 John., 202; Jackson v. Rowland, 6 Wend., 671; Clute v. Voris, 31 Barb., 511, 515, 516.) As was said in the last case cited by Emott, J., “ The first or oldest possession which can be shown affords a presumption which can only be overreached by proof of title or a subsequent adverse holding long enough to bar an entry.” There is no title or adverse holding of the defendants in this case which in any way interferes with the first and oldest possession of the plaintiff. Under the resolution which separated the plaintiff from the mother church, it took possession and claimed title to the church property, and after the trustees had ceased to use and occupy the basement *214as a school under the reservation, by virtue of the title to the church property, claimed title to the basement and reduced the ¿ame to possession. It therefore cannot be claimed that the plaintiff had no such prior possession of the basement, claiming to ovm it, as would raise a presumption of ownership. (See Smith v. Lorillard, 10 John., 338; Jackson v. Denn, 5 Cow., 200.) Nor can it be said that the rule invoked does not apply because the plaintiff shows title in a third person, the High Dutch Reformed Church of Schoharie, for it is manifest that the last named party had no legal title whatever, as it had parted with and disposed of the same, subject to the reservation of the privilege to use the basement as a school, which, having ceased, became vested in the plaintiff" as the owner of the church, and by adverse possession under a claim or color of title.
As the plaintiff was in possession, claiming title, and the defendants had no right whatever, the court properly refused the motion for a nonsuit and committed no error in directing the jury to find a verdict in favor of the plaintiff.
Some other questions were made upon the trial, but none of them require discussion. As there was no error upon the trial, judgment should be ordered upon the verdict in favor of the plaintiff with costs.
New trial granted.