Jackson, ex rel. Walton v. Leggett

7 Wend. 377

• Court: New York Supreme Court
• Decided: July 15, 1831
• Status: Published

Opinion

By the Court,

Savage, Ch J.

The first question is whether the proper evidence was produced to prove the incorporation of the church. I am opinion that the best evidence was not produced. The defendant objected to the record: the original certificate was higher evidence, and should have been produced, or its absence accounted for. The statute which directs the mode of proceeding to incorporate religious societies, does not make the record evidence, nor even the certicate, unless proved in court. Deeds proved according to the statute are made evidence without further proof, and if recorded, the record is evidence ; but there is no such provision as to the certificate of incorpation. The certificate must be proved and recorded before the society becomes incorporated, but that does not dispense with the production of the certifi- ' cate. As the cause stood when the plaintiff rested, he should have been nonsuited: but if the defendant chooses to go into his defence, and supplies the evidence which the plaintiff ought to have produced, the reason for setting aside the verdict no longer exists. The defendant did so in this case; he did not produce the certificate, but he proved by parol, without objection, that the congregation had long existed, and was in corporated anew in 1809. This is a sufficient answer to the objection to the plaintiff’s evidence. It is an assertion by the defendant that the fact was as stated by his witness.

The next question in the case is whether the defence set up of an entry by reason of a purchase from Mr. Sellon, should have been received. The legal estate was in Walton, and in a court of law the legal estate must prevail. The only exception to the rule, of which I am aware, is in the case of a resulting trust; in such case the trust may be proved by parol and the estate of the cestui que trust may be sold on execution, and has been so far considered the property of the cestui que trust, as to be a defence in an action of ejectment, 3 Johns. R 216 : 16 id. 199; and Jackson v. Matsdorf, 11 id. 97; in which last case the cestui que trust was said by Ch. J. Thompson to be the real owner. So also in Jackson ex dem. Ketchum, v. Townsend, (not reported) where money was sent by the defendant to purchase lands of the surveyor-general, and the deed was taken in the name of Ketchum; in an action of ejectment by Ketchum to recover possession, we held that Townsend being the real owner was entitled to retain the possession against his trustee. That question, however, is not raised by this case; the purchase money here was not paid by Mr. Sellon, the rector, but by his father; a trust results therefore in favor of the father—not the son, though it was said that Walton was trustee for the son; such a trust is not a resulting trust, nor can it be proved by parol, nor is it necessary to say any thing as to the rights and remedies of the trustee and cestui que trust. It is sufficient for our purpose that Walton is the legal owner of the property in question# anc| entitled to the possession.

It is said, however, that the plaintiff cannot recover on the demise of Walton, because he conveyed to Dubois, the other lessor, before suit brought; and that there can be no recovery on Dubois’ demise, because the deed to him was executed when the defendant’s possession was adverse. But the title must be in one or the other; if it did not pass to Dubois by reason of the defendant’s possession, it remains in Walton; if it passed from Walton, then it is in Dubois or his trustees. The conveyance by Dubois after suit brought does not prevent a recovery in his name. In Frier v. Jackson, 8 Johns. R. 507, it Was held that where all the lessors died pending the suit, the suit did not abate,- but might be prosecuted for damages and costs.

The plaintiff is entitled to judgment.