Parker, J.
This is a motion for a new trial npon exceptions taken upon the trial and ordered to be heard in the first instance at the General Term.
The action was ejectment to recover a tenement, to wit, the basement story of a church in the town of Wright, in the county of Schoharie. Upon the trial the court directed a verdict for the plaintiff.
The building, consisting of the church occupied by the plaintiff, and the basement thereof in question, is situated at a place called Gallupville, formerly a part of the town of Schoharie; and the people, now constituting the religious society called “ The Reformed Church of Gallupville,” were formerly part of a religious society known as the High Dutch Reformed Church of Schoharie, whose house of worship was and is at Schoharie court-house.
The said building, church and basement in question was erected by two several parties in the years 1835 and 1836 by voluntary contributions, the basement, under the direction of persons acting as trustees of a voluntary society for the use of a school, and the church over the basement by persons acting for those who contributed therefor, for the use of the High Dutch Reformed Church, of Schoharie, particularly such portion thereof as could attend church there more conveniently [208] than at Schoharie court-house; the same clergyman officiating in both places.
The title, under which those who erected this building, basement and church claimed and acted, is derived from Ezra Gallup and John Wheeler, the former owners of the lot on which it was built, through a deed dated April 15th, 1835, executed by them to the High Dutch Reformed Church of Schoharie, conveying the said grantee the premises (about half an acre) on which it stands, which deed contains the following reservation, reserving a right and privilege to Ezra Gallup, above named, to grant a right in the above named and described premises, by his indenture, to a certain company, on the following conditions : “ To build a basement story on the premises of a description therein specified for the purpose of keeping a select and other schools in only. * * * The said basement to be built under the High Reformed Church to be built on said above named and described premises, within the term of three years, * * * and said church to be built on the walls of said basement story above mentioned ; of which company John Wheeler, Robert Coats, and John P. Becker, were unanimously chosen trustees for- building said basement story, &c.,” and at the same time with the execution of said conveyance, the said Ezra Gallup executed to the said Wheeler, Coates and Becker, trustees, &c., the deed contemplated by said reservation. Pursuant to these deeds, the basement and the church edifice over -the same were built.
The church was used as a house of worship by the High Dutch Reformed Church of Schoharie until 1844, when a portion of said church and society was authorized by the consistory thereof to form a separate church and society, which was formed, and has continued to use said church down to the present time, having been incorporated in April, 1869, just before the commencement of this suit, under the name of The Reformed Church of Gallupville. The basement was from time to time occupied for schools, but has recently come to be occupied by a division of the sons of temperance of [209] whom defendants are a part. The plaintiff having by its consistory resolved to dispossess them, and they having refused to quit, this suit was commenced.
Irrespective of any question under the reservation, it is difficult to see how the plaintiff has made out any right, in itself, to maintain this action.
The deed from Gallup and Wheeler conveyed the land to the High Dutch Reformed Church of Schoharie, a religious corporation then in existence, and which under the deed occupied the church until 1844; no conveyance of the land or any interest in it has ever been made by this corporate body. True, in 1844 a resolution of the consistory of that church was passed, authorizing.that part of the church and society which has since been organized under the name of the Reformed Church of Gallupville, to separate from the parent or mother church, “ and become a distinct church and congregation,” and resolving that.“the building or edifice called the Gallupville Church,” which then belonged to the High Dutch Reformed Church of Schoharie, “ shall hereafter belong to and be the exclusive property of that part of the congregation hereinafter designated as a separate and distinct congregation.” It is under this action of the “mother church” that the plaintiff’s counsel claim that the title to the lot conveyed by the deed has come to the plaintiff.
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Parker, J.
This is a motion for a new trial npon exceptions taken upon the trial and ordered to be heard in the first instance at the General Term.
The action was ejectment to recover a tenement, to wit, the basement story of a church in the town of Wright, in the county of Schoharie. Upon the trial the court directed a verdict for the plaintiff.
The building, consisting of the church occupied by the plaintiff, and the basement thereof in question, is situated at a place called Gallupville, formerly a part of the town of Schoharie; and the people, now constituting the religious society called “ The Reformed Church of Gallupville,” were formerly part of a religious society known as the High Dutch Reformed Church of Schoharie, whose house of worship was and is at Schoharie court-house.
The said building, church and basement in question was erected by two several parties in the years 1835 and 1836 by voluntary contributions, the basement, under the direction of persons acting as trustees of a voluntary society for the use of a school, and the church over the basement by persons acting for those who contributed therefor, for the use of the High Dutch Reformed Church, of Schoharie, particularly such portion thereof as could attend church there more conveniently [208] than at Schoharie court-house; the same clergyman officiating in both places.
The title, under which those who erected this building, basement and church claimed and acted, is derived from Ezra Gallup and John Wheeler, the former owners of the lot on which it was built, through a deed dated April 15th, 1835, executed by them to the High Dutch Reformed Church of Schoharie, conveying the said grantee the premises (about half an acre) on which it stands, which deed contains the following reservation, reserving a right and privilege to Ezra Gallup, above named, to grant a right in the above named and described premises, by his indenture, to a certain company, on the following conditions : “ To build a basement story on the premises of a description therein specified for the purpose of keeping a select and other schools in only. * * * The said basement to be built under the High Reformed Church to be built on said above named and described premises, within the term of three years, * * * and said church to be built on the walls of said basement story above mentioned ; of which company John Wheeler, Robert Coats, and John P. Becker, were unanimously chosen trustees for- building said basement story, &c.,” and at the same time with the execution of said conveyance, the said Ezra Gallup executed to the said Wheeler, Coates and Becker, trustees, &c., the deed contemplated by said reservation. Pursuant to these deeds, the basement and the church edifice over -the same were built.
The church was used as a house of worship by the High Dutch Reformed Church of Schoharie until 1844, when a portion of said church and society was authorized by the consistory thereof to form a separate church and society, which was formed, and has continued to use said church down to the present time, having been incorporated in April, 1869, just before the commencement of this suit, under the name of The Reformed Church of Gallupville. The basement was from time to time occupied for schools, but has recently come to be occupied by a division of the sons of temperance of [209] whom defendants are a part. The plaintiff having by its consistory resolved to dispossess them, and they having refused to quit, this suit was commenced.
Irrespective of any question under the reservation, it is difficult to see how the plaintiff has made out any right, in itself, to maintain this action.
The deed from Gallup and Wheeler conveyed the land to the High Dutch Reformed Church of Schoharie, a religious corporation then in existence, and which under the deed occupied the church until 1844; no conveyance of the land or any interest in it has ever been made by this corporate body. True, in 1844 a resolution of the consistory of that church was passed, authorizing.that part of the church and society which has since been organized under the name of the Reformed Church of Gallupville, to separate from the parent or mother church, “ and become a distinct church and congregation,” and resolving that.“the building or edifice called the Gallupville Church,” which then belonged to the High Dutch Reformed Church of Schoharie, “ shall hereafter belong to and be the exclusive property of that part of the congregation hereinafter designated as a separate and distinct congregation.” It is under this action of the “mother church” that the plaintiff’s counsel claim that the title to the lot conveyed by the deed has come to the plaintiff.
Manifestly this action of the church of Schoharie did not and could not operate as a deed to convey the lot or the church in question, and I do not understand the plaintiff’s counsel to claim that it did. They however insist that here was a farol partition between the old church and the new one, by which this property became the property of the plaintiff*. This view of the learned counsel, it seems to me, is erroneous, for two reasons. First, there was never any tenancy in common of this or any property between the old church and the new one. The religious corporation, which we have called the old church, was the sole owner of this property and the church property at Schoharie court-house. The persons authorized to form a separate church and con[210] gregafcion were but individual members of the corporation. Between the corporation and its members there was no tenancy in common of the lands to which the corporation had title, and there could be no partition of such lands between the corporation and any of its members. They had no title in the lands, and there could be no severance by which they could obtain a several interest and right of possession. The idea that the plaintiff became vested with a title to the real estate in question or any part of it by a paroi partition, is, therefore, a wholly mistaken one, and that position for the reason above assigned an untenable one. Again, the High Dutch Reformed Church of Schoharie being a religious corporation, was incapable of divesting itself of the title to this property without the order of the court. (§§ 4 and 11 of the act of April 5, 1813, on Religious Incorporations; 3 R. S., 206, 2 ed., 23 Barb., 327; 1 Abb. H. S., 312; 27 Barb., 52.) It is also insisted by plaintiff’s counsel that such action of the church of Schoharie is sufficient as a color of title on which to found a claim, which by adverse possession has ripened into a good title. So far as the church built upon the basement in question is concerned, this may perhaps be true, for the church has been occupied under that resolution more than twenty years. It is to be kept in mind, however, that the premises in question in this suit are the basement story, as distinguished from the church built upon it. It has not been shown by any evidence in the case that ¿Ms has been held adversely by the plaintiff, or any person or persons to whose right it has succeeded for twenty years. On the contrary, it appears by the testimony of Chester Rosson, one of the consistory of the church of G-allupville and one of plaintiff’s witnesses, that within twenty years the consistory has recognized a separate ownership of the basement by the trustees of the association by whom it was built, and at a time when no school was being kept in it, and when it was becoming a nuisance to the occupants of the church from being a resort of evil-minded persons, that the said consistory formally [211] applied to the only remaining trustee for leave to close it up and nail the windows. This is uncontradicted. Clearly the plaintiff has made out no title by adverse possession.
It is also suggested that even if the plaintiff has shown no title in itself, yet, as against the defendants, who claim no title, plaintiffs ought to be allowed to recover upon its prior possession. In the first place, plaintiff has had no such prior possession of this basement, claiming to own it, as would raise a presumption of ownership (Smith v. Lorillard, 10 John., 338; Jackson v. Denn, 5 Cow., 200), and then the rule invoked by the plaintiff cannot apply when the plaintiff itself shows title in a third person, as it does in this case in The High Dutch Reformed Church of Schoharie. The plaintiff having thus failed to show any title in itself to the premises in question, we must hold without considering the other questions raised, that the court erred in denying plaintiff’s motion for a nonsuit, and that defendant’s exception to such decision of the court was well taken.
The defendant’s motion for a new trial must therefore be granted, with costs to abide the event.
James, J., concurred.