By the Court, Brown, J.
The justice who tried this action at the special term pronounced with his decision an elaborate and carefully drawn opinion, which is decisive, I think, of all the questions involved in the controversy. It would be but a repetition of what he has already said, and a reiteration of arguments stated with clearness and precision, and which lead logically and necessarily to the conclusions at which he arrives, were 1 to enter at large upon [272]*272a re-examination of the questions. The fallacy of the plaintiffs’ case, if it he a fallacy, consists in the idea that pervades it throughout, that the religious corporation known as the Parish of Bellport, and the congregational church which they represent, are one and the same. Assuming, and I think it may be regarded as indisputable, that the congregation at Bellport, and from which all parties claim descent, was originally a congregational church, it by no means follows that it was to remain such through all time ; and that the corporators or congregation had no power to change its doctrine and discipline and profession of faith, or to place themselves in connection with any other religious body without a forfeiture of their property and franchises, and leaving them all to the absolute enjoyment and disposition of the minority, however small, who chose to adhere to the old forms of faith and church government. This view, doubtless, prevailed with the legal profession and the public, to some extent, until the learned and searching examination of the rights, duties and obligations of religious corportions formed under the act of 1813, by the court of appeals, reported in Robertson v. Bullions, (1 Kern. 243.) And I am not able to read the proceedings and testimony in this action, and resist the apprehension that the jdaintiffs and their counsel shared in this mistaken opinion. The conclusions at which the learned judge (Selden) arrives in the case to which I refer, deserve to be remembered, because they cannot do less than remove from the tribunals of justice a fruitful and endless source of controversy and litigation upon the subject of church government, faith and religious belief, which the judges are not qualified by education and habits of thought to determine, and refers them for settlement to the individual conscience and judgment of those composing the corporate body. They are these : That a religious corporation, under the statute, consists not of the trustees alone, but of the members of the society. That the [273]*273society itself is incorporated, and its members are the corpora-tors. That the relation of the trustees to the society is not that of a private trustee to the cestui que trust, but they are its officers, with the powers of the officers of other corporations. That such societies do not belong to the class of ecclesiastical corporations, in the sense of the English law, but are to be regarded as civil corporations governed by the rules of the- common law. That the trustees of a religious corporation cannot take a trust for the sole benefit of members of the church, as distinguished from other members of the congregation, nor for the benefit of any portion of the corporators to the exclusion of others. That the trustees of a religious corporation “cannot receive a trust limited to the support of a particular faith or a particular class of doctrines, for the reason that it is inconsistent with those provisions of the statute which give to a majority of the corporators, without regard to their religious tenets, the entire control over the revenues of the corporation.” Upon the authority of this decision, the right of a majority of the corporators of the Parish of Bellport to change their form of church government and pass from a congregational church to an organization in connection with the presbyterian body, was unquestionable. And no other question remained for the determination of the judge, at the special term, but to ascertain who were the rightful trustees of the corporation of the Parish of Bellport—the persons named in connection with the corporation itself as plaintiffs in this action, or those named as defendants, if it was competent to determine that question in an action brought to recover possession of the corporate property. The weight of the evidence upon this point is with the defendants. Indeed there are some undisputed facts in the case, the force of which cannot be overcome by any considerations suggested upon the other side. The defendants deduce their title as trustees by regular succession and election, from the time of the incorporation of the society down to the time of the commencement of this action. During all this time they and their predecessors have been in the actual possession [274]*274of the church edifice and property, holding it for the corporation and its members, and exercising without interruption the usual functions of corporation officers. On the other side, four of the persons named as plaintiffs, in connection with the corporation, deduce their title to their office as trustees, from a meeting held on the 24th February, 1852, by that part of the corporators who adhered to the congregational organization, at which four trustées were elected—two to fill vacancies occasioned by the expiration of the official terms of two of the trustees, and two to supply the places of those who united with that part of the corporation in connection with the presbyterian organization. From the time of their election to the time of the commencement of this action they have not had possession or control of the church edifice or corporate property, and except for a very brief season may be said to have been excluded therefrom, and from the exercise of all functions as officers of the corporation of the Parish of Bellport. The judge, therefore, could do no less, under the evidencé, if he entertained the question at all, than to determine that the defendants were the rightful officers of the corporation of the Parish of Bellport,
I think it right, however, to consider, very briefly, whether the right to the office of trustees could properly be entertained' and determined in this action. In form and in substance it is an action of ejectment, brought to recover the church edifice and lands mentioned in the complaint, upon the ground that the corporation, known as the Parish of Bellport is the owner in fee, and entitled to the possession from which it has been wrongfully excluded by the defendants. The prayer of the complaint is that the plaintiffs may be adjudged to be the owners of the premises claimed, in fee simple, and may recover the possession of the same against the defendants, with damages, &c. The title and right of possession is said to be in the corporation; and if the real purpose was to try the title and recover the possession, the action should have been brought in the corporate name alone, and the sole issue would have [275]*275been upon the title of the corporation, and whether the defendants had wrongfully withheld from it the possession. This would have been a simple issue, and the proof would have followed the allegations of the complaint. Now, however, we have as plaintiffs, in addition to the church corporation, the six congregational trustees, and they propose, in addition to trying the title to the lands, to try also the title to the office of corporate trustees, and that too in the absence of any allegation that the plaintiffs are wrongfully excluded therefrom, or that the defendants have wrongfully intruded themselves therein. The answer denies that the plaintiffs Edmund Petty, Alfred Petty, William C. Beal, Charles N. Homan, Nathaniel Beeve and William A.
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By the Court, Brown, J.
The justice who tried this action at the special term pronounced with his decision an elaborate and carefully drawn opinion, which is decisive, I think, of all the questions involved in the controversy. It would be but a repetition of what he has already said, and a reiteration of arguments stated with clearness and precision, and which lead logically and necessarily to the conclusions at which he arrives, were 1 to enter at large upon [272]*272a re-examination of the questions. The fallacy of the plaintiffs’ case, if it he a fallacy, consists in the idea that pervades it throughout, that the religious corporation known as the Parish of Bellport, and the congregational church which they represent, are one and the same. Assuming, and I think it may be regarded as indisputable, that the congregation at Bellport, and from which all parties claim descent, was originally a congregational church, it by no means follows that it was to remain such through all time ; and that the corporators or congregation had no power to change its doctrine and discipline and profession of faith, or to place themselves in connection with any other religious body without a forfeiture of their property and franchises, and leaving them all to the absolute enjoyment and disposition of the minority, however small, who chose to adhere to the old forms of faith and church government. This view, doubtless, prevailed with the legal profession and the public, to some extent, until the learned and searching examination of the rights, duties and obligations of religious corportions formed under the act of 1813, by the court of appeals, reported in Robertson v. Bullions, (1 Kern. 243.) And I am not able to read the proceedings and testimony in this action, and resist the apprehension that the jdaintiffs and their counsel shared in this mistaken opinion. The conclusions at which the learned judge (Selden) arrives in the case to which I refer, deserve to be remembered, because they cannot do less than remove from the tribunals of justice a fruitful and endless source of controversy and litigation upon the subject of church government, faith and religious belief, which the judges are not qualified by education and habits of thought to determine, and refers them for settlement to the individual conscience and judgment of those composing the corporate body. They are these : That a religious corporation, under the statute, consists not of the trustees alone, but of the members of the society. That the [273]*273society itself is incorporated, and its members are the corpora-tors. That the relation of the trustees to the society is not that of a private trustee to the cestui que trust, but they are its officers, with the powers of the officers of other corporations. That such societies do not belong to the class of ecclesiastical corporations, in the sense of the English law, but are to be regarded as civil corporations governed by the rules of the- common law. That the trustees of a religious corporation cannot take a trust for the sole benefit of members of the church, as distinguished from other members of the congregation, nor for the benefit of any portion of the corporators to the exclusion of others. That the trustees of a religious corporation “cannot receive a trust limited to the support of a particular faith or a particular class of doctrines, for the reason that it is inconsistent with those provisions of the statute which give to a majority of the corporators, without regard to their religious tenets, the entire control over the revenues of the corporation.” Upon the authority of this decision, the right of a majority of the corporators of the Parish of Bellport to change their form of church government and pass from a congregational church to an organization in connection with the presbyterian body, was unquestionable. And no other question remained for the determination of the judge, at the special term, but to ascertain who were the rightful trustees of the corporation of the Parish of Bellport—the persons named in connection with the corporation itself as plaintiffs in this action, or those named as defendants, if it was competent to determine that question in an action brought to recover possession of the corporate property. The weight of the evidence upon this point is with the defendants. Indeed there are some undisputed facts in the case, the force of which cannot be overcome by any considerations suggested upon the other side. The defendants deduce their title as trustees by regular succession and election, from the time of the incorporation of the society down to the time of the commencement of this action. During all this time they and their predecessors have been in the actual possession [274]*274of the church edifice and property, holding it for the corporation and its members, and exercising without interruption the usual functions of corporation officers. On the other side, four of the persons named as plaintiffs, in connection with the corporation, deduce their title to their office as trustees, from a meeting held on the 24th February, 1852, by that part of the corporators who adhered to the congregational organization, at which four trustées were elected—two to fill vacancies occasioned by the expiration of the official terms of two of the trustees, and two to supply the places of those who united with that part of the corporation in connection with the presbyterian organization. From the time of their election to the time of the commencement of this action they have not had possession or control of the church edifice or corporate property, and except for a very brief season may be said to have been excluded therefrom, and from the exercise of all functions as officers of the corporation of the Parish of Bellport. The judge, therefore, could do no less, under the evidencé, if he entertained the question at all, than to determine that the defendants were the rightful officers of the corporation of the Parish of Bellport,
I think it right, however, to consider, very briefly, whether the right to the office of trustees could properly be entertained' and determined in this action. In form and in substance it is an action of ejectment, brought to recover the church edifice and lands mentioned in the complaint, upon the ground that the corporation, known as the Parish of Bellport is the owner in fee, and entitled to the possession from which it has been wrongfully excluded by the defendants. The prayer of the complaint is that the plaintiffs may be adjudged to be the owners of the premises claimed, in fee simple, and may recover the possession of the same against the defendants, with damages, &c. The title and right of possession is said to be in the corporation; and if the real purpose was to try the title and recover the possession, the action should have been brought in the corporate name alone, and the sole issue would have [275]*275been upon the title of the corporation, and whether the defendants had wrongfully withheld from it the possession. This would have been a simple issue, and the proof would have followed the allegations of the complaint. Now, however, we have as plaintiffs, in addition to the church corporation, the six congregational trustees, and they propose, in addition to trying the title to the lands, to try also the title to the office of corporate trustees, and that too in the absence of any allegation that the plaintiffs are wrongfully excluded therefrom, or that the defendants have wrongfully intruded themselves therein. The answer denies that the plaintiffs Edmund Petty, Alfred Petty, William C. Beal, Charles N. Homan, Nathaniel Beeve and William A. Homan are the trustees of the Parish of Bellport; denies that the defendants withhold the possession, but says and insists that they, the defendants, are the trustees of the Parish of Bellport, and as such hold the premises as the property of the corporation, and for the use and enjoyment of the corporators as a place of religious worship, without excluding the plaintiffs or any other person therefrom. It is manifest that the title to the lands and church edifice is not put in issue, nor the right to the possession, but the title only to the office of trustees of the religious corporation. No two issues can possiblybe more incongruous than one upon the title of a corporation to a piece of land, and the title of a class of persons to administer its affairs as its directors and officers. The remedy for an intrusion into, and usurpation of, a public or corporate office was an information in the nature of a quo warranto, filed by and in the name of the attorney general, upon his own relation, or upon the relation of a private party. The pleadings put the right directly in issue and judgment was rendered upon the right of the defendant, and also upon the right of the person averred to be entitled. (3 Black. Com. 262. 2 R. S. 2d ed. 482.) The remedy is still substantially the same, under the code, except that it is an action in place of an information, and is still brought by the attorney general. (Code, [276]*276title 13, ch. 2.) If the plaintiffs can prevail in this action, the result will he equivalent to a judgment of ouster in the old proceeding hy information in the nature of quo warranto. It will not he worth while hereafter to resort to the substitute for that remedy provided by the code to try the title to an office. An action of ejectment for the corporate lands, or an action to recover possession of its personal estate, will bring up for trial and determination the regularity of the election of its officers and directors and their title to administer its functions. Jackson v. Nestles (3 John. 115) was an action of ejectment to recover the possession of certain lands upon a tract called the Glebe, in the town of Newburgh. The title was vested in the trustees of the Parish of Newburgh, and the lessors of the plaintiff endeavored on the trial to try the question of title to the office of trustees. Upon the motion to set aside the nonsuit and for a new trial, Mr. Justice Van Ness says: “The trustees of the Parish of Newburgh are a body corporate, and it is taken for granted, on all hands, that the title to the lands in controversy'is vested in that corporation or those claiming under it; and in my view of the subject the only question presented by the case is, who are the members composing the corporation. To determine that question, the counsel on both sides have proceeded on the idea that a decision as to the validity of one, or both, the elections of trustees is necessarily involved. I think differently. The question, in this action is not who are the trustees de jure, but who are the trustees de facto. As long as the conflicting claims of these different sets of trustees, both elected under color of right, to the exercise of the corporate rights remains undetermined, so long the possessions held under either ought not to be disturbed. I am satisfied that in the present suit these claims cannot be tried. The only way in which the legality and regularity of these elections can be settled is by .information in the nature of quo warranto, under our statute.' This is the appropriate remedy in all cases of contested corporation elections, and either of the parties may resort to it [277]*277to have their rights fully investigated and finally determined.” This case, it will he observed, is similar in most respects to that under consideration; and upon its authority, as well as upon principle, I think that as soon as it appeared upon the trial that the defendants were in possession of the premises in dispute, holding them for the religious corporation of Bell-port, under color of an election apparently regular, held in conformity with the statute, the plaintiffs should have been nonsuited.
[Dutchess General, Term,
May 9, 1859.
Lott, Emott and Brown, Justices.]
For these reasons I think the judgment should be affirmed.