In re Church of Messiah

25 Abb. N. Cas. 354

• Court: New York Supreme Court
• Decided: September 15, 1890
• Status: Published

Opinion

Barnard, P. J.

[holding that the application was properly made under the Act of 1890]—

Ordered : That the said trustees be and they are hereby authorized to mortgage said real estate for the sum of twenty-five thousand dollars ($25,000) and to execute and ■deliver a mortgage therefor in the usual form; said real ■estate is described in said petition as follows:

[Description J]

It is further ordered : That the proceeds of said mortgage loan be applied by said trustees as follows, viz. ; To complete the chapel now being erected on said premises and to fulfill the terms of the petitioners’ contract for the ■construction of said chapel.

It has long been the practice of the supreme court to entertain applications of this nature under the provision of the act of 1813, authorizing the chancellor to grant leave to sell, the mortgage being regarded merely as a conditional sale. Any questions which may have existed as to the power of the court to grant leave to mortgage, the necessity of obtaining such leave, the proceedings and the scojrie of the order directing disposition of the proceeds, are set at rest by the act of 1890.

The new act took effect May 1, 1890, and the regularity of sales, etc., under proceedings commenced since then, is to be tested by the new act.

The act of 1890 amends the act of 1813 to read as follows :

§ 11. Any religious corporation may make application to the supreme court, at any special term thereof held in and for the district where the property of said corporation is located, or to the county court in and for the county where the property of said corporation is located, for leave to mortgage or sell any real estate belonging to such corporation, and upon obtaining such leave said corporation shall have power to mortgage or sell its real estate as shall be provided by the order of the court made upon such application : provided that this act shall not extend to any of the lands granted by this State for the support of the gospel.