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History of Orange County
Town of Newburgh
Page 29
SPENCER, J. The plaintiff having been nonsuited at the trial, it becomes a question, whether a title has been deduced under either of the demises. The first demise is from the religious incorporation, formed under the statute; on the 4th November, 1805, and their title is supposed to have commenced, at the time of the incorporation, and to extend to such real estate, as the original trustees, Colden and Albertson, held under the grant, of the 26th March, 1752. Upon the principles of the common law, this religious incorporation could take such property only, as had been granted to it, by its corporate style, and not being in esse, when the first grant was made, it could not acquire any interest by relation. If, therefore, it became invested with any property in the land, granted to Colden and Albertson, it can only be under the provisions of the general statute. To acquire a title by that statute, it is necessary, that the grant should have been to the corporation, to the congregation, or society, or to Colden and Albertson, for their use. By a reference to the charter, it will be seen, that although Colden and Albertson were trustees, they were not trustees exclusively, for the benefit of that society, but for the benefit of a minister of the church of England, and a schoolmaster, in the proportion which the trustees shall think meet and convenient; so that the trustees had a discretionary control over the fund, the profits of which they could distribute as they thought proper. It appears to me, that under the charter, therefore, it cannot be contended, that the corporation acquired any legal interest in the land itself, they not being cestui que trusts, for the entirety, nor for any definite proportion of it.
The second and third demises involve the same question, except so far as respects Cave Jones, and that is, whether the election of the 4th November, 1805, was a valid election, and conferred on the lessors, the legal estate to the land in controversy. The case states, that a large majority of the inhabitants of the German patent, who assembled to vote, were not episcopalians, and for this reason only, their votes were refused, and that none but episcopalians, who did not compose one-tenth part of the inhabitants, were allowed to vote at that election. The right of election is expressly given by the charter, to all male inhabitants of the German patent, who are above the age of twenty-one years. The trustees, when elected, have the disposal of the revenues of the glebe, and are to distribute them, as they think meet, between the minister and schoolmaster; the minister is required, by the charter, to be of the church of England, and has the care of souls of all the inhabitants on the patent, whilst the schoolmaster may be of any religious denomination, and it is his duty to instruct the children of all the inhabitants.
From this statement, it would seem to me, most conclusively, that no court of law, called upon to pronounce, not to make the law, can hesitate in saying, that all the inhabitants of the German patent, have an important right secured to them by the charter, of electing trustees, to make, not only the selection of a schoolmaster, but to decide on his salary. Of this right, they ought not to be deprived, from a supposed inconsistency, that persons of various religions, may, under the words of the charter, interfere in the choice of an episcopalian clergyman, or may be averse to the employment of one of that order.
It must have been foreseen, when the charter was granted, that there would be persons of different modes of religious worship on the German patent; yet, still, they were to be admitted to a participation in the elections. It cannot be requisite to advert to other parts of the charter, to enforce the propriety of the opinion I have formed; if it was necessary, my opinion would receive additional force, from that part of the charter which enables the trustees to hold fairs, in which, am well as in the choice of a schoolmaster, all the inhabitants have a vested interest, by the charter, and consequently, cannot, and ought not to be deprived of the right of choosing their trustees, on the propriety, and fidelity of whose conduct their rights, in a great measure, depend.
With respect to the demise from Cave Jones, there is no pretence to say, that he acquired any legal title to any portion of the lands, under his induction and settlement. The only claim he had, was to such part of the revenue of the glebe, as the trustees thought proper to give him.
The plaintiff having failed to show any title, the defendant cannot be disturbed in his possession. This view of the case renders it unnecessary to consider the objections raised to the act of the 6th April, 1803. My attention has not been particularly directed to the consideration, whether the legality of the election of trustees, can be tried in this collateral way, inasmuch as both parties have considered the validity of the election of November, 1805, fairly before the court, without any objection to the manner in which it has been presented. In my opinion, the nonsuit ought not to be confirmed; and that, consequently, the plaintiff must take nothing by his motion.
KENT, Ch. J. and Thompson, 3. having been absent, from indisposition, on the argument of the cause, gave no opinion.
Rule refused.
3 John Rep. 115.