The question of Martin’s liability to the plaintiff and to the other subscribers to refund the money is not here. The only question is whether an action is stated against Badeau and Bennett.
A point is made by these defendants that there is a misjoinder in making Martin a defendant with them; also that there is a misjoinder in not making Delong and Wright parties who appear to •have the title to the premises. These are points, especially the latter, which are by no,means free from difficulty. On the face of the complaint it would seem that Delong and Wright still h.ad the title, and a decree establishing rights iri the real estate should not be made in the absence of the persons having apparently the legal title. But it is best to examine the case on the merits.
The conveyance to Martin gave him the fee. Nothing in the deed declared that he held as a trustee. He never executed any writing (aside from his conveyance to Delong and Wright) which declared a trust in the land; and no trust could be declared except by a writing. (2 R. S., 134, 135, §§ 6, 7; Laws 1860, chap. 322.)
But, again, if we could consider the subscription paper as a declaration that the land purchased by Martin was held, or to be held, on a trust therein indicated, other difficulties arise. Suppose that paper be construed to declare a trust, in substance, to hold the lands for the use of the Baptists and for the use of the Universalists when not needed by the Baptists, then, first, such a trust is not authorized by the Revised Statutes (1 R. S., 728, § 55); second, it would create a perpetuity. (Adams v. Perry, 43 N. Y., 499.) Martin then held the fee charged with no trust.
Next Martin conveyed to Delong and Wright, describing them as trustees of the First Baptist Church of Schenevus. There was no such corporation; and therefore this conveyance was not a conveyance to the corporation, as it probably might have been con*257strued to be had any corporation been in existence. The words, therefore, “trustees, etc.,” were merely descriptive, and the fee vested in the grantees absolutely. Their knowledge of the subscription paper could have no more effect than Martin’s knowledge of the same paper. The words “ their successors in office ” had no effect, for there was no such office, and therefore there could be no successors.
The plaintiff urges that they took no title, and cites Laws of 1855, chapter 230. The object of that statute is well known. It was to put an end to a custom which had existed in respect to the churches of the Bomish faith. It had been customary to convey churches and other property to the bishop of the diocese and his successors. And the object of the statute was that, in future, such property should, as in other denominations, be held by the religious corporation and not by any person holding an ecclesiastical office. The statute however was repealed. (Laws of 1862, chap. 147.)
If it should be urged that the conveyance to Delong and Wright might be construed to be for the use of the Baptists or partly for the Universalists, then the answer is that the conveyance would vest nothing in the grantees, because it was not made to a corporation organized under the statutes. The title would remain in Martin. A conveyance for the benefit of a congregation or society for the purpose of 'religious worship must be made directly to that congregation or society, if it be incorporated, and not to any person for its benefit. If the congregation or society is not incorporated, there is no authority for holding real estate in trust for it. But even without deciding whether the title is in Martin or. in Delong or Wright, we remark that the plaintiff claims to enforce an alleged trust in the land for the benefit of himself and his associates. And the plaintiff urges, in his behalf, the doctrines which have been applied in England and elsewhere to charitable uses. But such uses in land are abolished in this State, except as preserved and modified by the statute. (1 B. S., 727, § 45; Holmes v. Mead, 52 N. Y., 332.) . The doubt on this point, sustained by the case of Williams v. Williams (8 N. Y., 525), no longer exists. If, then, it be claimed that Martin or Delong and Wright, or Badeau and Bennett hold this land, on the trust to permit the plaintiff and others of his associates to hold meetings there for worship,
33 *258the difficulty is that such a trust in land cannot be lawfully created under the statute, and cannot be enforced as a charitable use.
We regret that the defendants refuse to carry out the terms on which the plaintiff and others contributed money. It would seem that the religious instruction which they have received in this church edifice has not taught them ordinarily fair dealing; and certainly has not impressed on them the rule to do unto others,as they would have others do to them. But, for the reasons above given, we think that the plaintiff cannot have the relief he has sought against Badeau and Bennett in this action.
The judgment is reversed and judgment for the defendants given ■on the demurrer, without costs, with leave to plaintiff to amend on payment of costs.
Present — Learned, P. J., Ruhsey and Osborn, JJ.' Judgment reversed and judgment for defendants oh demurrer, without costs, with leave to plaintiff to amend complaint on payment of costs.