Mosely v. Marshall,

property. And the life tenant, as well as the remaindermen, had an interest that such application should be made, and that the principal of these bonds and mortgages should be reduced as low as possible. The principal being reduced, the life tenant would have a less amount to pay to keep down interest, and the amount to be paid by the remaindermen would be less, when they came into possession. Considering the age of the life tenant, and the probable continuance of her life, her interest in having the principal of these mortgages reduced, was quite as great, if not greater, than the interests of the remaindermen. The direction in the will is clear, and it is not necessary to stop to inquire what the executor should have done, in case the mortgagees refused to accept payment before the mortgages became due. There was no difficulty about this. He could have kept the residue invested. But, in fact, one of the mortgages became due probably as early as the residue was ascertained. Let us proceed, and if we can ascertain the amount or value of this residue of the personal estate at the time of the testator's death, all the difficulty will vanish; for that is the sum that should have been applied to the principal of the three mortgages, and the balance then remaining, as principal upon the mortgages, would be the sum upon which the life tenant would pay interest, and the sum charged upon the remainder. The remaindermen would take the estate thus charged, and this would be all that they would be entitled to. The accounts, as clearly rendered by the executor, furnish us the means, I think, of ascertaining that sum. We have the dates of the payments of the interest, as made by the executor, and any sum paid was a portion of the residue of the personal estate, with the interest on such portion to the time of payment. We want to ascertain an amount on the day of the testator's decease, (Nov. 26, 1852,) which would produce the various payments as made by the executor, and such amount is easily ascertained, upon the principles of discount.

Manning v. Moscow Presbyterian Society.

The accounts are restated according to the views here expressed, and the decree corrected, and as corrected affirmed.

It is a proper case for the payment of the costs of the parties out of the funds in the hands of the executor.

GREENE, J., concurred.

DAVIS, P. J., dissented.

[ERIE GENERAL TERM, February 8, 1858. Davis, Greene and Marvin, Justices.]

MANNING US. THE MOSCOW PRESBYTERIAN SOCIETY.

Although a religious society, organized under the act of April 5, 1813, is prohibited from selling its real estate, except under an order of the chancellor, or of the court of chancery, yet it may, without any order for that purpose, execute a mortgage upon its land, to secure the payment of a debt.

A

PPEAL from a judgment entered in favor of the plaintiff, upon the report of a referee. The action was brought to foreclose a mortgage given by the defendants to Felix Tracy, upon certain real estate in the village of Moscow in the county of Livingston, upon which the church edifice of the defendants. was situated, bearing date May 29th, 1835, and assigned by Tracy to the plaintiff. The defendants were a religious corporation, organized under the 3d section of the act to provide for the incorporation of religious societies, passed April 5, 1813. No order was made by the chancellor or other officer or by any court, authorizing the giving of the mortgage. The other facts are stated in the subjoined opinion of the court. The ordinary judgment of foreclosure and sale was entered upon the report of the referee.

A. M. Bingham, for the appellant.

James Wood, jun. for the respondent.

Manning v. Moscow Presbyterian Society.

By the Court, WELLES, J. Prima facie evidence was given of the execution of the mortgage, to foreclose which the action was brought. The evidence of Mr. Tracy shows that the defendants were in his debt to the amount for which the mortgage was given, for advances made by him for the benefit of their church property. That the mortgage was given to secure that indebtedness, in pursuance of a vote of the trustees, and was executed by a majority of them, and by their clerk, with their corporate seal affixed, and that the mortgage has been duly assigned by the mortgagee to the plaintiff. The evidence given by the defendant does not disprove these facts so clearly as to justify the court in disturbing the finding of the referee upon any of the facts found by him.

The only question which remains to be considered is, whether the defendants had power to give the mortgage without an order of the chancellor or of the court of chancery, according to the provisions of the 11th section of the act entitled "An act to provide for the incorporation of religious societies," passed April 5, 1813. (1 R. S. 4th ed. 1179.)

Section 3 of the act, after providing how religious societies, other than those provided for in previous sections, shall be incorporated, provides as follows: "And such trustees and their successors shall also thereupon, by virtue of this act, be a body corporate, by the name or title expressed in such certificate." Section 11 provides that it shall be lawful for the chancellor, upon the application of any religious corporation, in case he shall deem it proper, to make an order for the sale of any real estate belonging to such corporation, and to direct the application of the moneys arising therefrom by said corporation to such uses as the same corporation, with the consent and approbation of the chancellor, shall conceive to be most for the interest of the society to which the real estate so sold did belong. It has been repeatedly held that a religious corporation organized under this act, is prohibited from selling its real estate in any other way than the statute provides. (Willard's Eq. Jur. 735, and authorities there cited. 2 Kent's

Manning v. Moscow Presbyterian Society.

Com. 281. Montgomery v. Johnson, 9 How. Pr. Rep. 232, and authorities there cited.)

But the question still remains, was the giving of this mortgage a sale of the real estate of the defendant? We are of the opinion that it was not. It was not a sale in the ordinary and popular acceptation of the term; nor, indeed, in the strict legal sense. In either 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, in general, 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. Since the revised statutes took effect a mortgage has been held to be merely the creation of a specific lien, as security for the performance of the conditions expressed, which are either the payment of money or the performance of covenants or contracts, and does not pass the title, which continues in the mortgagor until foreclosure and sale. It is on this ground, and for this reason, deubtless, that the statute prohibits the maintaining an action of ejectment upon a mortgage. (2 R. S. 312, § 57. Jackson v. Myers, 11 Wend. 533, 538. Astor v. Hoyt, 5 id. 603 to 615, 617.) A mortgagee may assign the mortgage debt by parol, which draws after and with it the mortgage; and if the title is in the mortgagee, then the title to real estate may be transferred by parol, which cannot be done.

There is nothing in the spirit or policy of the statute, nor any principle of public policy, which forbids a religious corporation giving a mortgage upon its real estate, to secure a debt legally contracted, any more than in creating a lien by the voluntary confession of a judgment, which, it is decided, may be done. (12 Barb. 67, 410.) For the foregoing reasons the judgment should be affirmed, with costs.

Ordered accordingly.

[MONROE GENERAL TERM, March 1, 1858. Welles, Smith and Johnson, Justices.]

HALL VS. THOMAS.

Where the land of M. had been sold under a judgment and execution in favor of B., and been bid off by H.; and T. as the assignee and owner of a subsequent judgment against M., for the purpose of redeeming the premises from the said sale, presented to, and left with, the sheriff, as evidence of his title to the junior judgment, his own affidavit that he was owner and assignee thereof, and a paper purporting to be an assignment of the judgment, from the plaintiffs therein, to him, which paper was not verified by the affidavit of any one; and there was nothing in T.'s affidavit by which the paper was identified as the instrument under which he claimed to own, and hold, the judgment; Held that this was not the evidence required by the statute, from a creditor coming to redeem; and that the sheriff had no power to convey the title to the premises, upon it, to T.

HIS was an action of ejectment brought to recover pos

THIS was an action of s situate in Steuben county. The

cause was referred to a referee, who found the following facts: On the 8th of August, 1850, one Flavel W. Morrow was owner of the premises in question, and on that day a judgment was docketed in Steuben county in favor of one George A. Bush, against said Morrow and others, for $379.69. On the 12th of August, 1850, an execution was issued on said judgment to the sheriff of Steuben county, by virtue of which the sheriff sold the premises to the plaintiff on the 28th of February, 1851. On the 23d of November, 1850, Thomas J. Boyd and Stephen Paul recovered a judgment against said Morrow for $99.25, which was docketed in said county on the 27th of November, 1850, which thereby became and was a lien upon said premises. The defendant being the owner of said judgment by assignment, at the proper time paid to the sheriff of said county, the sum necessary to redeem said premises and acquire the rights of the purchaser, and at the same time presented to, and left with said sheriff, a copy of the docket of said last mentioned judgment, duly certified, with the original assignment of said judgment to him, with the affidavits attached, a copy of which affidavit was set out in the report of the referee, and was as follows: