Earl, J.
• Several objections were made by Lynch and McBey.nolds to the title tendered them by Pfeiffer, and it is proper that the objections should be examined in detail:
(1.) The title to the land comes through mesne conveyances-from the Manhattanville Presbyterian Society, which purchased and took a conveyance of the land in June, 1882. It
is objected that that society was not regularly organized, and that it could not, therefore, hold or convey land. It was organized under the act chapter 60 of the Laws of 1813, providing for the formation of religious associations. That act specifies particularly how societies of this kind could he organized, and, so far as we can perceive, all of its provisions were complied with.
It is recited in the certificate of incorporation that the meeting at which the organization was perfected, was composed of the male members of the congregation; and it is objected that the meeting was illegally organized if confined to the male members, as all the members of the congregation, both male and female, were entitled under the act to take part in the meeting. The organization was perfected the 15th of August, 1851. It is claimed, on the part of PfeifEer, that the statute prescribed that none hut male members of legal age could participate in the meeting. We are referred to no statute making such a provision. But if we assume that all the members of the congregation of lawful age had the right to participate in the meeting, it is not shown that any were excluded. While it is recited in the certificate that the meeting was composed of the male members of the society, for aught that appears the female members may have absented themselves, and if they did the male members had the right to constitute the meeting. Certainly there is nothing to show that any female member was excluded from the meeting.
The statute provides that on the day of the election two of the elders shall preside, and if there be no such officers, then two members of the congregation shall preside at the election. The certificate recites that “ there being no minister, elders or deasons present at said meeting, David Stevens was appointed its chairman,B. C. Andrews, assistant chairman, and William B. Dunshee, secretary.” There is no implication, from this language, that there were any elders, and there is no proof that there were any. Hence it was perfectly proper for the members of the congregation present to select two of their number to preside at the election of trustees.
The certificate further recites that “ by general consent the society is to continue to be known as the Manhattanville Presbyterian Society.” That is a perfect compliance with the provision of the statute, which requires that in the certificate of the incorporation “the name or title by which the said trustees and their successors shall forever thereafter be called and known, shall be particularly mentioned and described.”
We are satisfied, therefore, that the 'Manhattanville Presbyterian Society was legally organized.
(2.) It appears that the Manhattanville Presbyterian Society made a conveyance of this land by deed dated May 15, 1875, to the Presbytery of New York, a corporation authorized to take and hold real estate. But it is claimed that the society was not authorized to make that conveyance, and hence that it was void and no title passed to the Presbytery. It was provided in the act of 1813 that the chancellor, to whose powers the Supreme Court has succeeded, in case he should deem it proper, could make an order for the sale of real estate belonging to a religious corporation, and- direct the application of moneys arising therefrom by the corporation. In pursuance of that provision, in May, 1875, the trustees presented a petition to the Supreme Court in which they represented that the Manhattanville Presbyterian Society was seized in fee of the land in question; that in 1857, by virtue of an order of the court, the trustees executed a mortgage to one Yan Allen upon which there was then due and unpaid the principal sum of $1,500, and interest from June, 1871; that that mortgage, through several mesne assignments, was then held by the trustees of the Presbytery of New York; that there were unpaid assessments upon the land for improvements, bearing interest at the rate of twelve per cent from the date of confirmation; that the church membership of the society and congregation was so reduced in numbers as to make it impossible to meet the current expenses of sustaining their church property and religious worship therein; that they had no income except from the rental of pews and that that was wholly insufficient for the purposes aforesaid; that they
had no means of paying the incumbrances except by a sale of the premises; that besides a floating debt of about $300, the church building required expensive repairs, which they were unable to make; that the location of the property was such as to expose it, from time to time, to other assessments for street openings or other objects; that at a meeting of the congregation, regularly called, it was resolved to transfer the church property to the trustees of the Presbytery of New York, and that the trustees of the church be authorized to take all measures necessary for a legal transfer of the same ; and they prayed that an order might be entered authorizing them to execute and deliver to the trustees of the Presbytery of New York a deed in fee simple conveying to them and their successors and assignees the premises described, subject to all existing incumbrances, -the amount of which, together with the floating debt, should constitute the consideration to be expressed therein. The court thereupon made an order that the trustees of the society be authorized to execute and deliver to the trustees of the Presbytery of New York a deed in fee simple of the land described in the petition; that such deed be subject to all existing incumbrances, and that the amount thereof, together with the floating debt of $300, constitute the consideration to be expressed in the deed. In pursuance of that order, on the 18th day of May, 1875, the society executed a deed to the trustees of the Presbytery of the premises described, reciting a consideration of $3,736, “lawful money of the United States of America, to it m hand paid by the party of the second part.” The deed contained the usual full covenants and was made in terms subject to the Van Allen mortgage. Thereafter, on the 7th day of November, 1881, the trustees of the Presbytery of New York, by a deed containing no covenants, conveyed the same land to Pfeiffer, and Pfeiffer, to secure a portion of the purchase-price, executed to them a mortgage for $12,500.
We see no reason to-doubt that the deed from the Manhattanville Presbyterian Society to the trustees of the Presbytery of New York was duly authorized and in all
respects adequate and sufficient to convey a good title to the premises. The petition was sufficient to give the court jurisdiction to make the order, and although the deed recites that the consideration was the sum of $3,766, in hand paid, yet it would not be invalid if the consideration had not in fact been paid, but had been agreed to be paid. In reaching the conclusion as to the validity of that conveyance we come in conflict with nothing decided in
Madison Avenue Baptist Church
v.
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Earl, J.
• Several objections were made by Lynch and McBey.nolds to the title tendered them by Pfeiffer, and it is proper that the objections should be examined in detail:
(1.) The title to the land comes through mesne conveyances-from the Manhattanville Presbyterian Society, which purchased and took a conveyance of the land in June, 1882. It
is objected that that society was not regularly organized, and that it could not, therefore, hold or convey land. It was organized under the act chapter 60 of the Laws of 1813, providing for the formation of religious associations. That act specifies particularly how societies of this kind could he organized, and, so far as we can perceive, all of its provisions were complied with.
It is recited in the certificate of incorporation that the meeting at which the organization was perfected, was composed of the male members of the congregation; and it is objected that the meeting was illegally organized if confined to the male members, as all the members of the congregation, both male and female, were entitled under the act to take part in the meeting. The organization was perfected the 15th of August, 1851. It is claimed, on the part of PfeifEer, that the statute prescribed that none hut male members of legal age could participate in the meeting. We are referred to no statute making such a provision. But if we assume that all the members of the congregation of lawful age had the right to participate in the meeting, it is not shown that any were excluded. While it is recited in the certificate that the meeting was composed of the male members of the society, for aught that appears the female members may have absented themselves, and if they did the male members had the right to constitute the meeting. Certainly there is nothing to show that any female member was excluded from the meeting.
The statute provides that on the day of the election two of the elders shall preside, and if there be no such officers, then two members of the congregation shall preside at the election. The certificate recites that “ there being no minister, elders or deasons present at said meeting, David Stevens was appointed its chairman,B. C. Andrews, assistant chairman, and William B. Dunshee, secretary.” There is no implication, from this language, that there were any elders, and there is no proof that there were any. Hence it was perfectly proper for the members of the congregation present to select two of their number to preside at the election of trustees.
The certificate further recites that “ by general consent the society is to continue to be known as the Manhattanville Presbyterian Society.” That is a perfect compliance with the provision of the statute, which requires that in the certificate of the incorporation “the name or title by which the said trustees and their successors shall forever thereafter be called and known, shall be particularly mentioned and described.”
We are satisfied, therefore, that the 'Manhattanville Presbyterian Society was legally organized.
(2.) It appears that the Manhattanville Presbyterian Society made a conveyance of this land by deed dated May 15, 1875, to the Presbytery of New York, a corporation authorized to take and hold real estate. But it is claimed that the society was not authorized to make that conveyance, and hence that it was void and no title passed to the Presbytery. It was provided in the act of 1813 that the chancellor, to whose powers the Supreme Court has succeeded, in case he should deem it proper, could make an order for the sale of real estate belonging to a religious corporation, and- direct the application of moneys arising therefrom by the corporation. In pursuance of that provision, in May, 1875, the trustees presented a petition to the Supreme Court in which they represented that the Manhattanville Presbyterian Society was seized in fee of the land in question; that in 1857, by virtue of an order of the court, the trustees executed a mortgage to one Yan Allen upon which there was then due and unpaid the principal sum of $1,500, and interest from June, 1871; that that mortgage, through several mesne assignments, was then held by the trustees of the Presbytery of New York; that there were unpaid assessments upon the land for improvements, bearing interest at the rate of twelve per cent from the date of confirmation; that the church membership of the society and congregation was so reduced in numbers as to make it impossible to meet the current expenses of sustaining their church property and religious worship therein; that they had no income except from the rental of pews and that that was wholly insufficient for the purposes aforesaid; that they
had no means of paying the incumbrances except by a sale of the premises; that besides a floating debt of about $300, the church building required expensive repairs, which they were unable to make; that the location of the property was such as to expose it, from time to time, to other assessments for street openings or other objects; that at a meeting of the congregation, regularly called, it was resolved to transfer the church property to the trustees of the Presbytery of New York, and that the trustees of the church be authorized to take all measures necessary for a legal transfer of the same ; and they prayed that an order might be entered authorizing them to execute and deliver to the trustees of the Presbytery of New York a deed in fee simple conveying to them and their successors and assignees the premises described, subject to all existing incumbrances, -the amount of which, together with the floating debt, should constitute the consideration to be expressed therein. The court thereupon made an order that the trustees of the society be authorized to execute and deliver to the trustees of the Presbytery of New York a deed in fee simple of the land described in the petition; that such deed be subject to all existing incumbrances, and that the amount thereof, together with the floating debt of $300, constitute the consideration to be expressed in the deed. In pursuance of that order, on the 18th day of May, 1875, the society executed a deed to the trustees of the Presbytery of the premises described, reciting a consideration of $3,736, “lawful money of the United States of America, to it m hand paid by the party of the second part.” The deed contained the usual full covenants and was made in terms subject to the Van Allen mortgage. Thereafter, on the 7th day of November, 1881, the trustees of the Presbytery of New York, by a deed containing no covenants, conveyed the same land to Pfeiffer, and Pfeiffer, to secure a portion of the purchase-price, executed to them a mortgage for $12,500.
We see no reason to-doubt that the deed from the Manhattanville Presbyterian Society to the trustees of the Presbytery of New York was duly authorized and in all
respects adequate and sufficient to convey a good title to the premises. The petition was sufficient to give the court jurisdiction to make the order, and although the deed recites that the consideration was the sum of $3,766, in hand paid, yet it would not be invalid if the consideration had not in fact been paid, but had been agreed to be paid. In reaching the conclusion as to the validity of that conveyance we come in conflict with nothing decided in
Madison Avenue Baptist Church
v.
Oliver Street Baptist Church
(46 N. Y. 131, and 73 id. 82.) In that case this court held upon the facts there appearing, which were very unlike those in this case, that no sale of the property was intended; that the whole scheme was to effect a union of the two churches and a dissolution of the grantor as a religious corporation, which was to reap no benefit whatever from the conveyance, and hence that it could not be regarded as a sale. Here the grantor survived as a corporation, and was to be benefited by the payment of its debts, and there was a transmission of property from one party to another for an adequate consideration, and hence in every sense there was a sale.
(3.) The Van Allen mortgage did not after the conveyance continue to be an incumbrance upon the premises, but became merged in the superior legal title which the trustees of the Presbytery took by the deed. In order to prevent a merger in such a case the grantee should have some interest to keep the mortgage on foot, and there must be an intent that the merger should not take place.
(James
v.
Morey,
2 Cow. 246 ;
Champney
v.
Coope,
32 N. Y. 543 ;
Bascomb
v.
Smith,
34 id. 320.) Here, after the conveyance to the Presbytery, so far as appears, it had no interest whatever in preserving the lien of the mortgage, and there was clearly no intention on the part of the Presbytery to keep the mortgage on foot. All the facts show that it was the intention of the parties that the Presbytery should pay the mortgage as a part of the consideration for the purchase of the property, and therefore the Yan
Allen mortgage ceased to "be an incumbrance upon the property.
(4.) It is further objected that the property was incumbered by a mortgage made by-the Manhattanville Presbyterian Society to William Gr Bull, John L. Mason, William P. Cook and Jesse W. Benedict on the 30th day of April, 1857, nearly twenty-six years before the contract of sale between Pfeiffer and McReynolds. That mortgage was payable on demand, and hence has long since apparently been barred by the statute of limitations. After the conveyance by the trustees of the Presbytery to Pfeiffer all the mortgagees named in that mortgage, or their representatives, executed releases thereof to the trustees of the Presbytery of ISTew York. It is claimed, however, that those releases were ineffectual because the Presbytery did not at the time hold any title to the premises. But it was at that time a mortgagee of the premises, and that was sufficient to uphold a release of a prior mortgage. The facts show sufficiently that it was the intention of the Presbytery by obtaining the releases to perfect the title which it had conveyed to Pfeiffer. But if the releases were otherwise ineffectual, they furnish strong evidence, together with the great lapse of time and the omission to mention the mortgage in the proceeding for the sale of the land by the Manhattanville society, that the mortgage is no longer a subsisting incumbrance or obligation, and the same if not paid or otherwise discharged is barred by the statute of limitations.
We have, therefore, reached the conclusion that the title tendered by Pfeiffer in performance of his contract was reasonably clear from any defect. The alleged defects, if any exist, are merely fanciful and not substantial, and are not sufficient to defeat an action for specific performance."
The judgment should, therefore, be affirmed, with costs.
All concur.
Judgment "affirmed.