Statement of case. 73 82 110 41 73 82 129 280 THE MADISON AVENUE BAPTIST CHURCH, Appellant and Respondent, v. THE BAPTIST CHURCH IN OLIVER STREET, Appellant and Respondent. 73 82 138 457 73 82 139 120 73 82 140 44 It seems, that the jurisdiction of the court under the act providing for the incorporation of religious societies (§ 11, chap. 60, Laws of 1813; 3 Edm. Stats., 687), to make an order authorizing the sale by such a society of its real estate, depends upon the facts before it when the order was made; it cannot be upheld by proof that facts existed which would have justified the order, but which were in no way placed before the court, or brought to its attention at the time. An unauthorized conveyance by a religious corporation of its real estate cannot be held valid, because it has been executed and delivered, the purchaser put in possession, and the corporation paid the consideration therefor. In such case, however, when the corporation seeks to repudiate the conveyance, and to recover possession of the property, as a condition of recovery it will be required to restore to the purchaser all that he has paid upon the faith of the title supposed to have been conveyed, and of the possession and enjoyment of the property. A mortgagee lawfully in possession of the mortgaged premises can retain possession against the mortgagor, after default upon the mortgage, until any and all sums due have been paid. To authorize such retention the possession need not to have been given under the mortgage, or with a view thereto. (Russell v. Ely, 2 Black [U. S.], 575, distinguished.) The general rule requiring a mortgagee in possession to account for the rents and profits, when the mortgagor seeks to redeem, is not in all cases controlling. A court of equity may give redress, according to the circumstances of the case, and will not apply the rule when it will work injustice. Plaintiff and defendant, both religious corporations, for the purpose of effecting a union, entered into an agreement in substance as follows: That plaintiff should convey all of its property, real and personal, to defendant; the latter to assume all of the debts of the former, and to take its corporate name, its corporators and congregation, and plaintiff thereupon was to be dissolved. Upon petition stating these facts an order was granted by the Supreme Court directing the conveyance of plaintiff's real estate to defendant. A conveyance was accordingly made. Defendant took possession of the real estate, using it for the purpose of religious services, assumed and paid plaintiff's debts, most of which were liens upon the property, including several mortgages thereon. Defendant conducted regular religious services in the church edifice, upon the property so conveyed, most of plaintiff's former corporators and mem Statement of case. bers attending and participating. In an action brought to recover possession of the real estate, held, that the facts stated in the petition did not show a sale, and did not give the court jurisdiction to grant the order; that the order, and the conveyance under it, were void, and that plaintif was entitled to redeem; but that as a condition of restoration of the property plaintiff should refund to defendant the sums the latter had paid in cancellation of the indebtedness of the former. Also, held, that as it appeared that the costs and expenses of maintaining religious services were more than the amount received by defendant for pew rent, the latter was not chargeable therewith; that for the use of the premises defendant should bear all the expenses while it was in possession, and should also lose the interest accruing during that period on the sums paid by it upon plaintiff's debts. The cause of action stated in the complaint was simply ejectment. The answer, among other things, set up payment of plaintiff's debts to an amount specified; also a purchase and assignment to it of a mortgage upon the property, and claimed a right to retain possession until reimbursed the sums paid; and also asked for a foreclosure of the mortgage. By supplemental answer defendant set up the purchase by, and assignment to it, subsequent to the commencement of the action of another mortgage, and asked a judgment of foreclosure thereon. It also claimed to hold, as assignee, certain bonds of plaintiff, secured by a third mortgage, and alleged payment of other debts. Plaintiff, by a supplemental complaint, claimed, in case it should be adjudged that defendant acquired any right of possession or foreclosure under the mortgages, then that an account should be taken of rents and profits, and that defendant should be charged therewith. Held, that by the answer and subsequent proceedings, the title being found in plaintiff, the action was substantially turned into one to redeem on the part of plaintiff, and on the part of the defendant to foreclose the mortgages, and that in adjusting the equitable rights of the parties the court was not limited to the time of the commencement of the action, but the relief should be brought down to the close of the litigation. (Argued February 18, 1878; decided March 19, 1878.) APPEAL by both parties from judgment of the General Term of the Superior Court of the city of New York, affirming a judgment, entered upon a decision of the court at Special Term. (The decision upon a former appeal is reported in 46 N. Y., 131.) (Reported below, 9 J. & S., 369.) This was an action of ejectment, commenced July 30, 1863, to recover possession of certain real estate situate upon Madison avenue, in the city of New York, with a church edifice thereon. Statement of case. The answer alleged in substance that the defendant entered into possession of the premises in October, 1862, under a deed from the plaintiff, executed in pursuance of an order of the Supreme Court, upon the plaintiff's petition. The petition and deed were the result of a plan of union previously adopted by the two corporations parties hereto, which provided for the extinction of the plaintiff's corporation, the surrender of all its property to the defendant, the transfer of its name and of all its members to the defendant's society. The answer set forth the plan of union, the petition, the Supreme Court order, and conveyance under it, possession under the deed with plaintiff's conscnt, and claimed the fee thereunder, and that its possession be confirmed. It also alleged payment by defendant of plaintiff's debts to the amount of $16,154.23, and purchase by and assignment to it of a bond and mortgage given by plaintiff for $12,500; also claimed the rights of mortgagee in possession, under said mortgage, and foreclosure in case its title in fee was not sustained, and also reimbursement for the moneys paid by the defendant on plaintiff's account while in possession. The petition signed by the plaintiff's trustees stated in substance. that the plaintiff was the owner of the lots in question, and had erected a church edifice thereon, the whole costing $122,000. That their present indebtedness was $73,000, sixty-one of which was secured by mortgages upon the property. That from various causes stated in the petition it was unable to pay its liabilities or meet the current expenses of the church. That the plaintiff and defendant (a religious corporation under the laws of the State, located in Oliver street, and which for some time had contemplated disposing of its property, and moving up-town,) had formed a plan and made arrangements for uniting the two churches upon the following terms: That the plaintiff should convey all its property to the defendant, and that the members of the Madison Avenue Baptist Church were to become, and be members, of the Oliver Street Baptist Church, and thereupon the regular services of the united churches were to be Statement of case. held in the house of worship then owned by the plaintiff. That the trustees of the defendant were to resign, and a new election of trustees had by the united church and congregation. That thereupon the defendant was to take the corporate name of the plaintiff. That the real and personal property of both was to become liable for the indebtedness of both. An agreement for disposing of the pews in the edifice of the plaintiff after the union was consummated. That the plan of union had been agreed to by both corporate bodies. That the defendant owned property over and above its indebtedness of the value of from $50,000 to $65,000 which, upon the consummation of the union, would become applicable to the payment of the debts of the plaintiff, and that by the union the creditors of the plaintiff would obtain that amount of additional security for the payment of their debts. That the two churches had obtained subscriptions for about $15,000, to be applied to the payment of the floating indebtedness of each. Then follows a statement of a number of pew owners and pew hirers concurring in the application, that the others favor it, and that the rights of pew owners and holders will be protected. Defendant put in a supplemental answer setting forth the purchase by and assignment to it, October 17, 1863, of another bond and mortgage, executed by plaintiff, of $30,000, the whole of which was due, and averred that defendant was lawfully in possession of the premises under said mortgage. It alleged, also, that it held, as assignee, certain bonds then due, executed by plaintiff, secured by a trust mortgage on the premises, and alleged payment of other debts of plaintiff, not set forth in the answer, to the amount of $2,224.18. Judgment of foreclosure upon the $30,000 was demanded. Plaintiff put in a supplemental complaint, claiming that if it should be adjulged that defendant acquired any right of foreclosure or of possession under the mortgages, or any right of lien for the reimbursement of sums paid out on account of plaintiff's debts, that an account should be taken of rents and profits, and defendant should be charged there Statement of case. with, and be adjudged to surrender the premises upon being paid the balance, if any. The further facts appear sufficiently in the opinion. There was (1 Kyd 103, 157; Geo. F. Comstock and Addison Brown, for plaintiff. Defendant had no equitable lien. (Carter v. Rockett, 8 Paige, 437, 438; Wheaton v. Gates, 18 N. Y., 395, 403; Mad. Ave. Bap. Church v. Bap. Church, 46 id., 140; Weaver v. Whitney, Hopk., 12; Ottley v. Browne, 1 B. & B., 360; Ex parte Mather, 3 Ves., 373; Coman v. Sedgwick, Hoff. Ch., 60; Jarvis v. Lobdell, id., 479; Ewing v. O'Baldiston, 2 My. & Cr., 88; Mickles v. Dillaye, 17 N. Y., 83, 93.) no valid implied contract to sustain such a lien. Corp., 120-122; Co. Litt., 9 a; 2 Black. Com., 27 Barb., 54; 62 N. Y., 425.) The mortgages upon the property do not aid defendant's possession. (Runyon v. Mesereau, 11 J. R., 534; 21 N. Y., 347; 23 id., 531; 54 id., 608; 2 Barb. Ch., 135; 14 Wend., 236; Trim v. Marsh, 54 N. Y., 604; Ten Eyck v. Craig, 62 id., 421, 422.) Defendant, as mortgagee in possession, should be charged with the fair cash rental value of the premises during its occupancy. (4 Kent,* 166; Bell v. Mayor. etc., 10 Paige, 73; Calkins v. Calkins, 3 Barb., 313; 20 N. Y., 154; Van Beuren v. Olmsted, 5 Paige, 12; Holmes v. Davis, 19 N. Y., 495; Vandervoort v. Gould, 36 id., 646; Worrall v. Munn, 38 id., 144; 53 id., 136; Ruckman v. Astor, 9 Paige, 520; Vroom v. Ditmas, 4 id., 434; Gordon v. Lewis, 1 Sumn., 143; Quinn v. Britain, Hoff. Ch., 358; Jackson v. Wood, 24 Wend., 443; Low v. Purdy, 2 Lans., 426; Jeffries v. Cochrane, 48 N. Y., 671; Murray v. Ballou, 1 J. Ch., 576–579; Layfield v. Layfield, 7 Sims., 172; 1 Paige, 147; 9 id., 469; 3 Abb., 298; Story's Eq., § 1016, b; Winchester v. Paine, 11 Ves., 194.) William R. Martin and Samuel Hand, for defendant. It was not necessary that the facts conferring jurisdiction to order a sale should appear upon the record. (Chemung |