網頁圖片
PDF
ePub 版

L. 1871, ch. 12, § 1, sub. 5; R. S., 8th. ed., 1891

L. 1888, ch. 459, § 1; R. S., 8th ed., 1913.

The first portion of the section as to the correction of conveyances, enlarges materially the cases in which the correction can be made. By the present law, the name of the grantee in the original conveyance must contain the principal words of the true corporate name, whereas this section of the revision allows the correction to be made if the conveyance is intended to be made to the corporation and no part of the corporate name appears therein, as well as when the corporate name is incorrectly stated. The contents of the statement are materially amplified chiefly by the requirement that it shall set forth the reasons for believing that the corporation was intended to be the grantee, but the effect of the statement is limited. The act of 1888, now provides that from the filing of the statement the true corporate name shall be deemed to have been expressed in the original conveyance. This section of the revision makes the statement presumptive evidence of the truth of its contents.

The last paragraph of this section as to the confirmation of conveyances, extends to all churches the provisions of the acts of 1863 and 1871 which are now applicable only to Roman Catholic churches and Greek churches.]

§ 11. Sale, mortgage and lease of real property of religious corporations.-A religious corporation shall not sell or mortgage any of its real property without applying to and obtaining leave of the court therefor.

The trustees of an incorporated Protestant Episcopal church shall not vote upon any resolution or proposition for the sale, mortgage or lease of its real property, unless the rector of such church, if it then has a rector, shall be present.

The trustees of an incorporated Roman Catholic church shall not make application to the court for leave to mortgage, lease or sell any of its real property without the consent of the archbishop or bishop of the diocese to which such church belongs, or in case of their absence or inability to act, without the consent of the vicar-general or administrator of such diocese.

The petition of the trustees of an incorporated Protestant Episcopal church or Roman Catholic church shall, in addition to the matters required by the Civil Code to be set forth therein, set forth that this section has also been complied with

But lots, plats or burial permits in a cemetery owned by a religious corporation may be sold without applying for or obtaining leave of the court.

No cemetery lands of a religious corporation shall be mortgaged while used for cemetery purposes.

[See form, No. 5.

L. 1813, ch. 60, § 1, sub. 15, § 11; R. S., 8th ed., 1882, 1888.

L. 1890, ch. 424; R. S., 8th ed. (supp.), 3291.

L. 1842, ch. 215, § 1; R. S., 8th ed., 1895.

L. 1879, ch. 310, § 1; R. S., 8th ed., 1947.

The special provision as to Roman Catholic churches is new, and is inserted at the request of the authorities of that church. The act of 1813 as originally enacted and also as amended by the act of 1890 provided that the corporation shall make the application. This section of the revision, therefore, makes no change in that respect, and is in harmony with § 3391, sub. 5 of the Civil Code, as added by L. 1890, ch. 95, which act also provides in detail the procedure for obtaining leave of the court.

The last clause of § 11 of the act of 1813, prohibiting the sale of "gospel lots," granted by the state, is omitted, as practically obsolete. There are no other material changes of substance.

Power of alienation.-Under the English common law religious corporations had the power to alienate their property without restriction, but in the reign of Elizabeth several statutes were enacted, restraining the alienation of church property. These statutes became part of our common law, and, therefore, without statutory authority religious corporations have no power to sell their real property. M. Ave. Baptist Ch. v. Baptist Church in Olive St., 46 N. Y. 131; Bogardus v. Trinity Church, 4 Paige, 178; De Ruyter v. St. Peter's Church, 3 Barb. 119; S. C. 3 N. Y. 238.

Power to mortgage.-It has been held that a religious corporation may make a mortgage without leave of the court. Manning v. Moscow, etc., Society, 27 Barb. 52; South Bap. Soc. v. Clapp, 18 Barb. 35; that a mortgage was not a sale within the meaning of the statutes of Elizabeth, and the decisions holding that statutory authority to sell was necessary. Compare Battell v. Torrey, 65 N. Y. 294, and Riggs v. Parsell, 66 N. Y. 193.

Prior to 1890, the supreme court was accustomed to grant to religious corporations authority to mortgage real property, on the theory that the mortgage was a conditional sale. In 1890, ch. 424, the power was expressly granted to the court, and has been re-enacted in § 11. Matter of Church of the Messiah (Sp. T.), 25 Abb. N. C. 354, and note.

While there may be doubt as to the necessity of the authority of the court, it will be much safer to secure it.

Where application is made.-The "court" referred to in this section is either the supreme court of the district or the county court of the county in which the real property or some part thereof is situated. (Code Civil Procedure, §§ 340 and 3391ff, in pursuance of which the proceedings are to be conducted.) See sections of code following annotations to this section.

Who may make application.-There is a dictum of the court in the case of Wyatt v. Benson, 23 Barb. 327, that an application for the sale, mortgage or lease of the real property can only be made by the authority of the corporation, in which the legal title is vested; but the later authorities hold that a majority of the trustees as the managing agents of the temporalities of the corporation can make the application, without a vote of a majority of the corporators. Matter of St. Ann's Church (Sp. T.), 14 Abb. Pr. 424; The Madison Ave. Bap. Ch. v. Bap. Ch. in Oliver St., 46 N. Y. 131; In re St. George's M. E. Church, 21 Wk. D. 81. Application to the court is not necessary for the sale of a church edifice which has been removed from its foundations and placed on rollers. The edifice then becomes personal property. Beach v. Allen, 7 Hun, 441.

The trustees of a religious society have the power to remove their house of worship from one lot to another or from one village to another without application to the court. Matter of the Second Baptist Society, 20 How. Pr. (Sp. T.) 324.

A deed to the vendor of a right of way over lands purchased by the corporation is not a sale, requiring order of the court. Protestant Reformed, etc., Church v. Bogardus, 5 Hun, 304.

[ocr errors]

Sale of pews. A church corporation can not sell a pew absolutely without leave of the court. Matter of Reformed Church in Saugerties, 16 Barb. 237.

What constitutes sale.-There must be a valuable consideration inuring to the corporation as such. If the only consideration is a benefit to the individual incorporators, the court has no power to order the sale. Mad. Ave. Bap. Church v. Bap. Ch. in Oliver St., 46 N. Y. 131; Wheaton V. Gates, 18 N. Y. 395.

Conditional sale.-A condition in a deed of premises that if the seats of any church erected on the premises shall be "rented or sold' the premises shall revert to the grantors or her heirs, is not violated by a sale of the premises to an individual under order of the court, by a deed containing the same condition. Woodworth v. Payne, 74 N. Y. 196. Order to direct disposition of proceeds.-Upon the sale of real property of a religious corporation by leave of the court, the property can not be distributed among the corporators, but must be applied as directed by the court. Matter of the Reformed Church in Saugerties, 16 Barb. 237.

An order of the court granting leave to mortgage, should direct the application of the proceeds. In re Ch. of the Messiah, 12 N. Y. Supp. 489. Effect of order on executory contracts.- A religious corporation has power to make an executory contract for the sale of real estate, subject to the action of the supreme court, and if such approval be obtained the contract will be binding without formal ratification. Bowen v. The Irish Presbyterian Congregation, etc., 6 Bos. 245.

An executory contract for sale of land by a religious corporation, made before consent of court to the conveyance, is valid, and may be enforced after consent, even though it is not provided that the contract is made subject to obtaining consent. Such condition will be implied. Congregation Beth Elolim v. Central Presbyterian Ch. (City Ct. Brooklyn), 10 Abb. Pr. (N. S.), 484.

[ocr errors]

Effect of order as to validity of deed. An order of the court authoriz ing the sale of the real property of religious corporations is not conclusive as to the validity of the deed or the right to convey. Wardens, etc., of St. James' v. Rector, etc., 45 Barb. 356.

Arbitration.- A religious corporation not having the power to sell its real estate without the consent of the supreme court can not submit the question of sale to any other person. Wyatt v. Benson, 23 Brab. 327. Assignment.- Trustees of a religious corporation may make an assignment of the corporate property for the benefit of corporate creditors. De Ruyter v. St. Peter's Church, 3 N. Y. 238.

Sale to another corporation.-A sale may be ordered of the property of one religious corporation to another religious corporation, upon consideration of the grantor assuming the incumbrances thereon and the floating debts of the grantor. Lynch v. Pfeiffer, 38 Hun, 601.

Action to set aside sale. A corporator can not in his own name bring an action to set aside a sale, where the only objection is that the proceedings before the court were irregular. In such an action the cor poration must be made by a party. Wakins v. Wilcox, 66 N. Y. 654.]

CODE OF CIVIL PROCEDURE.

RELATIVE TO THE SALE OF CORPORATE REAL PROPERTY.

[ocr errors]

TITLE II.

Proceedings for the Sale of Corporate Real Property. Section 3390. When proceedings pursuant to the provisions of this title to be taken.

3391. Proceedings to be instituted by presentation of

petition; what to contain.

3392. Hearing of application. Notice; appointment of

referee.

3393. Order; when application for, may be opposed. 3394. Insolvent corporation or association; notice to creditors.

3395. Services of notices; how made.

3396. Practice in cases not provided for.

3397. When act to take effect.

§ 3390. Whenever any corporation or joint-stock association is required by law to make application to the court for leave to mortgage, lease or sell its real estate, the proceeding therefor shall be had pursuant to the provisions of this title.

§ 3391. The proceeding shall be instituted by the presentation to the supreme court of the district, or the county court of the county where the real property, or some part of it, is situated, by the corporation or association, applicant, of a petition setting forth the following facts:

1. The name of the corporation or association, and of its directors, trustees or managers, and of its principal officers, and their places of residence.

2. The business of the corporation or association, or the object or purpose of its incorporation or formation, and a reference to the statute under which it was incorporated or formed.

« 上一頁繼續 »