particular use to which the property may be dedicated, and to see that the proceeds of sale are invested or used for the like uses; and the order of the court in such cases, authorizing the sale, is permissive only, and not mandatory. An absolute sale and conveyance, and a ratification afterwards, might not be upheld, but an agreement to sell, subject to the approval of the court, will be sustained. (Bowen v. The Irish Presbyterian Congregation of the City of New York, 6 Bosw. 245.)

§ 273. The trustees of a religious society have power to remove their house of worship from one lot to another, without any application to the court. No authority which the court could confer would make that power more perfect. The trustees possess this right to remove their house of worship, from the authority given them under the general act for the incorporation of religious societies. An application to the court is necessary only in case the trustees desire to sell the lot from which they propose to remove the building. (Matter of Second Baptist Society in Canaan, 20 How. Pr. R. 324.)

§ 274. The trustees may mortgage the real estate of the society, in good faith, to secure an honest debt of the cor porate body, without applying to the court for its assent. The executing of a mortgage is not a sale within the provisions of the general act in regard to religious societies, nor in the ordinary and popular acceptation of the term, nor, indeed, in the strict legal sense. A sale embraces the idea of a transfer of the legal title of the property sold, from the vendor to the vendee, for a consideration passing from the latter to the former. A sale, to be complete, requires the delivery of the possession of the thing sold. It was sales in this sense by trustees of religious societies that the statute was designed to restrain and regulate. But

there is nothing in the spirit or policy of the statute which forbids the giving of a mortgage, or creating a lien upon the real estate of a religious society, by the voluntary confession of a judgment, to secure a debt legally contracted. Manning v. Moscow Presbyterian Society, 27 Barb. 52.)

§ 275. A corporation, whether trading or religious, may, at the common law, assign its property in trust for the payment of its debts, unless restrained by its charter, or by some other statute. It is the duty of the trustees of a religious corporation to cause its debts to be paid, and there is no legal objection to their adopting the form of a general assignment of the corporate property to effect it; though, as to the real estate, the society must obtain the assent of the court. (DeRuyter v. St. Peter's Church, 3 Comst. 238.)

§ 276. Under the general act for the incorporation of religious societies, the power to sell the real estate of a religious corporation is vested in the court and not in the trustees. Neither is it a power in the corporation. The court may, therefore, order that the sale be made by a referee or other person duly appointed, and the sale thus made and the conveyance executed by the referee or other person, will be just as valid as though made by the trustees with the assent of the court. (Ib.)

§ 277. The petition for leave to sell real estate of a religious corporation may be in the following form:

To the Honorable the County Court of the County of Oswego:

The petition of the undersigned respectfully shows that they are the trustees of the religious society known as "The First Presbyterian Church, Fulton," a religious incorporation organized under and in accordance with the laws of the State of New York, having no personal property except their church furniture, and no real estate except the

lot on which stands their house of worship, and one other piece or parcel of land situate in the village of Fulton, in the county of Oswego, bounded as follows: (Add description.) That said last mentioned piece or parcel of land is of the value of about one thousand dollars. That the said society has incurred a debt in necessary repairs recently made upon their house of worship of about the sum of eight hundred dollars, and they have not the means of paying the same except by a sale or other disposition of their real estate, and they therefore ask leave of this court to sell the said parcel of land hereinbefore specifically described, and owned by said society, and with the proceeds pay the said indebtedness, and apply the balance in making other necessary improvements in and about their house of worship. And this petition further shows that at the regular annual meeting of the said society, held at their said house of worship on the day of 18 at which there were present and voting a majority of the legal voters of the said religious corporation, a resolution was unanimously passed instructing the said trustees to make this application and effect a sale of said parcel of land; and that, at a meeting of your petitioners as a board of trustees, a resolution was unanimously passed to make this application in accordance with the expressed wish of the said religious society. A. B., &c., Trustees.

§ 278. The petition should be verified by affidavit, which may be in the following form:

County of Oswego, ss.

M. M., being sworn, says that he is the clerk (or presi dent) of the board of trustees of the religious incorporation known as "The First Presbyterian Church, Fulton." That he has read the foregoing petition signed by the said trustees, and knows the contents thereof, and that the same is true of his own knowledge or belief. That he was present at the annual meeting of the society referred to in said petition, and kept the minutes thereof, and that what is stated in said petition in relation thereto is true to his own knowledge, and that the signatures to the foregoing petition are all genuine, and that the signers thereof are all the trustees of said incorporation.

Sworn, &c.

M. M.

§ 279. The order of the court in the matter may be in the following form:

At a term of the county court of the county of Oswego, held at the court-house, in the city of Oswego, on the day of

18

:

Present-Hon. J. C. Churchill, County Judge.

IN THE MATTER OF THE APPLICATION OF
RELIGIOUS SOCIETY KNOWN AS THE
FIRST PRESBYTERIAN CHURCH, FUL-
TON," FOR LEAVE TO SELL THEIR REAL
ESTATE.

Application having been made by the trustees of the above named religious society, on behalf of the said society, for leave to sell their real estate or a part thereof, on motion of Mr. C. H. D., of counsel for said petitioners, it is hereby ordered that the said trustees be authorized to sell and convey the parcel of land specifically described in said petition for a sum not less than one thousand dollars, and that they appropriate the proceeds as requested in the said petition.

CHAPTER XXII.

RELIGIOUS SOCIETIES IN NEW YORK-CHANGE OF CHURCH GOVERNMENT-HOW EFFECTED- -TRUSTEES CONTROL THE RELIGIOUS EXERCISES THE RIGHT TO VOTE NOT AFFECTED BY THE DOCTRINES OF THE VOTER-TITLE TO THE OFFICE OF TRUSTEE, HOW TRIED.

280. As has been intimated in a previous chapter, corporations formed under the general act for the incorporation of religious societies in the State of New York have no denominational character, and none can be engrafted upon them. The legal character of the corporation is not affected

by the existence or non-existence, or ecclesiastical connection, doctrines, rites or modes of government of a church or churches formed by the corporators. Religious societies usually maintain public worship according to some specified denominational usage, but the corporation and the church, although one may exist within the pale of the other, are in no respect correlative. The objects and interests of the one are moral and spiritual; and the other deals exclusively with things temporal and material. The existence of the church proper, as an organized body, is not recognized by the municipal law. (Petty v. Tooker, 21 N. Y. Rep. 267.)

§ 281. The corporators of a religious society may not only select their own officers, and thus control their own property, but they may change their faith and form of worship, or their discipline at their pleasure, and there is no legal power to interfere, or to prevent it. They may pass from a Congregational church to an organization in connection with the Presbyterian body, and vice versa. In a word, the society has the entire control of the question as respects the form of religious worship which shall be promoted by the church property. In the strong language of the courts, "it was the intention of the legislature to place the control of the temporal affairs of these societies in the hands of a majority of the corporators, independent of priest, bishop, presbytery or synod, or other ecclesiastical judicatory. This is the inevitable effect of the provision giving to the majority, without regard to their religious sentiments, the right to elect trustees, and to fix the salary of the minister." (Robertson v. Bullions, 11 N. Y. Rep. 243; Parish of Bellport v. Tooker, 29 Barb. 256.)

§ 282. The trustees of a religious society can determine, by their control of the corporate property, who shall conduct the religious exercises in the house of worship of the society.