Madison Avenue Baptist Church agt. The Baptist Church in Oliver street. agt. Gable, 2 Denio 492; Robertson agt. Bullions, 1 Kern. 242; Parish of Belport agt. Tooker, 29 Barb. 256.) In the last case the form of church government was changed from a Congregational church to an organization in connection with the Presbyterian body. The idea that the denominational or sectarian character of a church enters as an element into the act of incorporation, is exploded in the cases last cited. A society becomes incorporated as a religious, not as a sectarian body (Petty agt. Tooker, 21 N. Y. R. 267); and the same principle which allows a majority of corporators to change the articles of faith would seem to authorise a majority of two societies, entertaining the same belief, to unite and form themselves into one church. And such a union, in my judgment, cannot be improper. An example of such a union is found in the case of Cammeyer agt. The United German Lutheran Church (2 Sandf. Ch. R. 186), where one church society transferred all its real and personal property to another church society, and the united churches thereafter worshiped as one congregation. It is true of that case that neither of the societies were incorporated at the time of the union; nevertheless, the case is an apt illus tration of the propriety, as it is a pointed instance of such a union. I am not aware that any court has assumed to have jurisdiction over the spiritual body which constitutes the church, as distinguished from the temporal body, which consists of its members and is represented by its trustees. Over such spiritual body, legal or temporal tribunals do not profess to have any control; hence, all questions concerning the faith or practices of the church and its members, belong to the church judicatories in their connection; while on the other hand, such ecclesiastical judicatories cannot interfere with the temporal concerns of the society with which the church members are united. I may state in this connection, that the society long in existence, insti Madison Avenue Baptist Church agt. The Baptist Church in Oliver street. tuted to aid feeble churches, has, where it was practicable, recommended a union of weak churches, upon the conviction from long observation and experience, that the strength acquired by the union would add to the efficiency and usefulness of both. The doctrine that contracts of corporations, which are ultra vires, are void, does not receive favor with the courts. Where parties have contracted in good faith with a corpora tion, and have executed their contract, and the corporation has received and accepted the benefits, it is not to be tolerated that they can be permitted to seek exemption, on the ground that they had no power to contract. (Fuller agt. Heath, 11 Wend. 477; State of Indiana agt. Warren, 6 Hill., 33; Sherman agt. N. Y. Central R. R. Co., Barb. 239.) The only exceptions to this rule are those cases where corporations are prohibited by some express provision of law, or are required to contract in some prescribed form. (Brady agt. The Mayor, &c., of N. Y., 20 N. Y. R., 312; Bonesteel agt. The Same, 22 Id., 168.) In this view, it seems plain that the plaintiff's could have been compelled specifically to perform their contract, by procuring an order to convey, and by transferring the title to their property to the defendants. (Fry on Spec. Perf., 233.) The case of Wheaton agt. Gates, before referred to, seems to have been regarded by the learned justice at special term as controlling. It was also insisted by the respondent's counsel that it was conclusive. It is proper to say of that case, at the outset, that it was an action brought by a corporator for the purpose of having declared null and void an order of a county court, giving its sanction to a sale of church property. In that respect it differs from this case, which is an attempt to attack collaterally the validity of a similar order, which, in my opinion, can be done only by a direct action. (Clark agt. Van Surlay, 15 Wend., 436.) The petition in the case cited was verified by four only, of six trustees, and had annexed to it the concurrence of a few only of the members Madison Avenue Baptist Church agt. The Baptist Church in Oliver street. of the society. The prayer was that the church might be sold, and the proceeds, after paying debts, might be divided among the persons who held deeds of pews, in proportion to the sums paid by them. The referee, who tried the action, found as facts that there was no necessity for selling to pay debts, and that the sole object was to effect a distribution of the proceeds among a portion of the members; and he declared that the order for the sale was void, "on account of the provision for the distribution of the proceeds among the pew owners." It nowhere appeared that any considerable number of the corporators, certainly not a majority, applied for the order. It is stated that several members of the society concurred, but it is evident from the statement of the case, that only a small portion of the members and a bare majority of the trustees consented to the application. The decision of the court follows and adopts the decision of the referee that there was no necessity for a sale to pay debts; and that the division of the proceeds among the pew-holders was illegal, and rendered the order void. The decision, both of the referee and of the court, is based upon the fact that all the persons interested had not consented, and the learned judge says, "it was not in the power of the trustees, or a majority of the members, or of the court, to abolish the corporation or dissolve the society." But he seasonably adds, "if every individual having any interest in the matter should concur, it might be done." As a decision, Wheaton v. Gates sustains these general propositions: That the statute confers no power upon the court to control or manage the property of religious societies; that the whole power of administration is conferred upon the trustees, with the single qualification, that before they can sell they must apply to the court for its allowance of the transaction, and to allow or disallow the application of the moneys to such purposes, as the corporation shall represent to be most for the interests of the Madison Avenue Baptist Church agt. The Baptist Church in Oliver street. society. From these propositions, it follows, that upon an application for the sale of church property, the only duty of the court is to see-First, That sufficient reasons exist therefor, and Second, That a proper disposition of the proceeds is made, and the case decides nothing more. I have examined the case before us, upon strictly legal grounds, and have endeavored to show that the court had jurisdiction to make the order directing the plaintiffs to convey, and that the order was a proper one. It therefore becomes unnecessary to examine the other questions raised on the appeal. If I am right in the views I have expressed, it follows that the rejection of the evidence offered to establish the defence was erroneous, and the judgment for that reason should be set aside. But before concluding, I may be indulged, I hope, in a single suggestion in regard to another aspect of the case. The entire good faith of the parties who entered into this mutually beneficial agreement, cannot for a moment be questioned. The promptness with which they carried it into immediate effect, and the desire they manifested to complete, in a spirit of fairness, what they had undertaken to do, cannot fail to satisfy any one that the intentions of the parties were upright. The plaintiff's procured permission to convey, and deliv ered their deed. The defendants sold their property in Oliver street; came into the plaintiff's church and united" with them, and as one congregation engaged in divine wor ship. Debts of the plaintiffs, amounting to upwards of fifty thousand dollars, were, in effect paid, and the corporate name of the Madison Avenue Baptist Church retained. So far the parties appear to have acted in strict accordance with their engagements. They came together in a spirit of fraternal love, and conformed to the faith and submitted to the discipline of the united church. Having done this-having gone thus far, it would seem as if a Christian spirit, if not a better judgment, should have counseled acquiescence and peace. Among men who do Madison Avenue Baptist Church agt. The Baptist Church in Oliver street. not profess the Christian religion, moral obligations are not always recognized. With such, the compulsory pow er of the law alone has its terrors. But there is, nevertheless, or should be, a conscientious sense of right and justice, and of moral duty, which ought to control the actions of men, and influence them in the discharge of their obligations, even where the law exempts; and whatever may be the conceived legal rights of parties, if there is any moral duty unperformed, it should restrain them from the entanglements and consequences, always disastrous, of strife and litigation. The judgment should be reversed, and a new trial ordered, with costs to the appellants on the appeal, to abide the event. BARBOUR and GARVIN, JJ., concurred. |