Page 28
History of Orange County
Town of Newburgh
Page 28
     Cave Jones, the minister elected in 1805, cannot maintain this action.  He had not the legal estate, nor was he the cestui que use.  The use was executed in the trustees, not in Jones.  It could not be executed in Jones, for a use cannot be executed, unless there be a person seized to the use of another.*  Now, the trustees being a corporation, cannot be seized to a use.**  It was, in fact, a trust at common law, or use executed in the trustees, by the statute.*** The trustees had power to grant leases, and no other person could exercise that power.  A parson in England, is a corporation sole, and is seized of the freehold.  Here the rector is not a corporation sole, nor is he seized of the freehold.  The trustees had no right to locate the two hundred acres for the exclusive benefit of a clergyman; for the charter gives it for the joint object of a minister and a school.  It is clear, therefore, that Cave Jones had no legal estate; he was in possession, neither under the old charter, nor the new incorporation.— He was neither inducted according to the charter, nor according to the act of the legislature, relative to religious incorporations.  Again, the new religious corporation can claim nothing under the old corporation.  There is no privity between them, no legal succession or inheritance, by which the rights or property of the one can be transmitted to the other.  The trustees elected under the new incorporation, could not be the lessors of the plaintiff, for the act of 1803, had vested the estate in others, in order to carry into effect the remaining trusts of the charter.
     VAN NESS, J. On the argument, several nice and delicate questions were raised for our decision.  The property in dispute is understood to be valuable, and being appropriated for religious and other beneficial public purposes, it is desirable that a compromise should be effected between the parties, upon principles of mutual concession, thereby the ends of the original grant may, in some way, be attained.  My opinion will leave the door to compromise open, and if the parties shall not avail themselves of this opportunity to adjust the controversy by amicable arrangement among themselves, they must abide the consequences of such decisions as the court shall, in the course of future litigation, feel itself bound to pronounce.
     The lessors of the plaintiff found their right to a recovery, upon the legality and validity of the election of trustees, in November, 1805, conducted, as they contend, in conformity to the original charter.  They deny the right of the legislature to make the law of 1803; but even conceding that the legislature had the right, they allege that the law was obtained by fraud and misrepresentation, and ought, therefore, to be avoided.
     The defendant denies the legality of the election of 1805, inasmuch as episcopalians, exclusively, were permitted to vote thereat.  But, admitting that the charter gave to episcopalians only the right to vote, he says, that the act of 1803 has altered and modified the charter, and that he derives his possession from the trustees chosen pursuant to that act.
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 land in controversy is vested in that corporation, of those claiming under it.   And, in my view of the subject the only question presented by the case is, who are the members composing this corporation.
     To determine that question, the counsel on both sides have proceeded on the idea that a decision as to the validity o one or both of the election 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 defacto.  A long as the conflicting claims of these different Sets of trustees, both elected under color of right, to the exercise of the corporate rights, remain 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.  If an inquiry into the qualifications of the persons who were permitted to vote at the election of 1805, can be made, the same inquiry is equally proper, as to the qualification of those who voted at the election of 1803.  In fact, the regularity of every part of the elections would be open to investigation.  This would be, not only an unprecedented mode of proceeding, but contrary, in my opinion, to known and well-settled rules.
     The defendant is in possession, under the trustees elected pursuant to the act of 1803.  I intend, that he is in possession under a lease, sealed with the corporate seal; and those trustees, as it respects this portion, at least, of the lands belonging to the corporation, must be regarded as the trustees defacto.  They were elected before the other set of trustees, under an existing law of the legislature, and until they are ousted, the court is bound to protect the possession of their tenant.
     The only way in which the legality and regularity of those 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 present parties may resort to it, to have their rights fully investigated, and finally determined.
     Until it shall have been determined by this mode of proceeding, who are the rightful and legitimate representatives of the corporation, I shall be unwilling to disturb the possessions of either of the parties.  My opinion, accordingly, is, that a new trial ought to be denied.

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      *Cruise's Dig. 422. Tit. 9. c. 3. &7.
       **Ibid. 423. I Co. 122 a 126 a Dyer, 283 a.   
       ***Cruise's Dig. 462, 463.