Warner v. Winslow.

and as such it should prevail. In this view, and leaving the naked legal title out of the question, Winslow stands as a bona fide purchaser of the estate by a parol agreement, having gone into possession, and paid the whole consideration to the owner, for a title which upon the the record was discharged from Darley's mortgage. The complainant by neglecting to record his assignment, has enabled Schenck to sell the estate to Winslow free from any lien. I think that in equity, a vendee in a contract of sale who has paid the consideration, should be held to be a purchaser within the 37th section of the chapter of the Revised Statutes relative to the recording of deeds, &c. (1 R. S. 762.) This alone would not protect the vendee, under the 1st section of the same chapter, in case the outstanding conveyance were recorded before such vendee procured and recorded his deed, unless the taking o possession should be deemed notice to the prior grantee, and an equitable equivalent to recording.

It is unnecessary to pursue the inquiry on this point, for on the other I feel no hesitation or doubt.

The bill must be dismissed with costs.

Kniskern v. The Lutheran Churches of St. John's and St. Peter's, and others.

KNISKERN and others v. THE LUTHERAN CHURCHES OF ST. JOHN'S AND ST. PETER'S, PHILIP WIETING, and others.

The jurisdiction of courts of equity, in cases of charities directed to religious purposes, proceeds upon the ground of a trust. In such charities, as well as in those for purposes purely civil, it is the duty of the courts to give effect to the intent of the founder, if that be legal. To that end, their aim is to ascertain the scope and objects of the charity, and then to enforce its proper and faithful

administration.

The difficulties which environ the subject of religious charities, arising from the lapse of time since the foundation, and from the subtleties involved in the alleged perversion of the trust, are not permitted to prevent the proper exercise of this jurisdiction.

Where a trust is created by deed, for the use of a congregation of Christians, designating such congregation by the name of a sect or denomination, without any other specification of the religious worship intended, the intent of the donors or founders in that respect, may be implied from their own religious tenets, from the prior and contemporary usage and doctrines of the congregation, and from the usage, tenets, and doctrines of the sect or denomination to which such congregation belongs.

In ascertaining the early and contemporary usage and doctrines of such sect, resort may be had to history, and to standard works of theology of an era prior to the existence of the dispute or controversy.

When it is shown what such prior usage and doctrines were, it is incumbent on those who allege a departure therefrom in the founders of the particular congregation, or the donors of its temporalities, to prove such departure.

Where a church is endowed with property for the support of a particular faith, and is subsequently incorporated, it is not competent for a majority of the church, the congregation, or the corporators, or of a majority of each combined, to appropriate such property for the maintenance of a different faith.

The question of the particular religious faith or belief is not material in such cases, except so far as the court is called upon to execute the trust, and to that end it merely inquires what was the faith or belief, to maintain which the fund was bestowed. The court does not animadvert upon the religious belief of either party, or assume to determine that either is in itself right or wrong.

A grant of lands was made in 1789 to the trustees of an evangelical Lutheran congregation, consisting of two churches, "for the common use and benefit of the said Lutheran congregation forever."

Prior to 1800, with other donations, a house of worship was erected by each church, and other temporalities were acquired. Each church became incorporated under the general statute. At the time of these endowments, their standard of faith and doctrine was the Augsburgh Confession of Faith. In 1830, they became a

Kniskern v. The Lutheran Churches of St. John's and St. Peter's, and others.

part of the Hartwick Synod of the Evangelical Lutheran Church. In 1837, the trustees of the two churches, in connection with the pastor and the church councils, dissolved their connection with the Hartwick Synod, and united with other churches in forming a new synod, which adopted a declaration of faith, essentially variant in three principal and cardinal doctrines, from the Augsburgh Confession. Held, that these proceedings of the trustees were a perversion of their trust, and an unlawful diversion of the property of the churches from the objects and purposes for which it was originally contributed. And they were decreed to account for the rents and income thus perverted.

Held also, that those members of the congregations who adhered to the Augsburgh Confession, and continued their connection with the Hartwick Synod, were entitled to have such trustees removed, and to have a decree for the application of the property to the objects for which it was given. And the corporate organization of such members having been continued, pending the suit, their trustees were held entitled to receive the temporalities of the churches.

Whether the separation from the Hartwick Synod alone was ground for relief. Quere. The court of chancery in this state has not under the statute relative to corporations, any visitorial power over religious corporations. But it retains the common law jurisdiction of chancery over the subject of charitable uses, which existed prior to the Statute 43 Eliz. ch. 4, of Charitable Uses, and continued, independently of that statute.

The court has power to remove trustees of religious charities, who are guilty of a breach of trust, and direct the election of others, excluding as incompetent the guilty trustees and their adherents in the perverted use of the trust funds. Examination of the alleged departures in doctrine from the creed of the Founders, in respect of the Trinity, the Divinity of our Saviour, and original or inherited sin; and inquiry into the history of the Augsburgh Confession, and its authority in the Evangelical Lutheran Church, from the time of the reformation in Germany; in the opinion of the court.

Decree, declaring a perversion of the trusts of a religious corporation, removing the trustees, directing an account, and providing for new trustees to administer the fund according to the designs of the donors.

Albany, January 13, 15 and 16, 1844; New-York, July 17, 1844.

THE bill in this cause was filed on the 23d day of March, 1839, by Philip Kniskern and Daniel Angle, two members of the Lutheran Church and Congregation, or Society of New Rhinebeck, in the town of Sharon, Schoharie County, known by the corporate name of "The Ministers and Trustees of the Lutheran Church in Rhinebeck," commonly called St. Peter's, or New Rhinebeck Church; and Marcus Brown, one of the trustees, and David Sommer, a member of the Lutheran Church or Society at Durlach, in Sharon, known by the corporate name of "The Evangelical Lutheran Congregation of St. John's

Kniskern v. The Lutheran Churches of St. John's and St. Peter's, and others.

Church at Durlach, in Sharon;" in behalf of themselves and such other members of those churches and congregations, as adhere to the faith, doctrines, ordinances, discipline, and government of the Lutheran Church as declared, established and promulgated, by the confession and declaration of faith commonly called the Augsburgh Confession of Faith.

The bill set forth, that according to the history of the Lutheran Church, on the 25th of June, 1530, the sect of Protestant Christians known as Lutherans, presented to a general diet then assembled at Augsburgh in Germany a written explication of their religious system or articles of faith, which has ever since been known as the Augsburgh Confession of Faith, and religiously observed, regarded and adopted by the Lutheran Church, as containing the fundamental rules of the faith, practice, discipline and government of that church, and is the confession of faith of the church and of its adherents, and all departures from it are considered by the said church as heresies, or departures from its true faith, practice, discipline and govern

ment.

That this Confession of Faith was principally drawn up by Martin Luther, and consisted of 28 articles, the first 21 of which represented their religious opinions or faith; the others pointed out the errors and abuses which had occasioned their separation from the church of Rome, and are not generally contained in the Confession of Faith of the modern Lutheran churches; the 21 articles being all to which the members are required to conform.

That the persons professing Lutheran tenets in America are commonly known and designated in their collective capacity, as the Evangelical Lutheran Church.

The judicatories of the church consist of, 1st, the vestry of the congregation, commonly called the church council; 2d, the district or special conference; 3d, the synod; 4th, the general synod. The vestry or church council, consists of the pastor and of all the elders and deacons of a particular church. The special conferences are parts of the District Synod, formed by the synod dividing itself into two or more districts, for the purpose of increased care and vigilance over the spiritual welfare

Kniskern v. The Lutheran Churches of St. John's and St. Peter's, and others.

and condition of the churches within its district. The synod consists of all the ministers and an equal number of lay delegates within a certain district. It also comprises within itself a ministerium, composed of ministers only. The synod directs the external affairs of the church, while the ministerium regulates the internal or spiritual affairs, such as judging in doctrinal controversies, and licensing and ordaining ministers. The General Synod is denominated the Evangelical Lutheran General Synod of the United States of North America, aud is composed of deputies of ministers and lay members from the several synods or synodical conventions.

That by the constitution and government of the said church every member has the right of appeal from any decision of the church council, or of the special conference, to the synod; and from that to the General Synod.

The church council has the direction and control of all the temporalities, as well as of the spiritual concerns of the particular church, and elects the lay deputy to represent such church in the annual synodical meeting.

That long prior to 1789, there was a congregation in what is now Schoharie County, called "The Lutheran Congregation of Cobleskill and New-Durlach," which was duly organized as an Evangelical Lutheran Church, in which its sacraments and ordinances were canonically dispensed according to the Augsburgh Confession of Faith, and the constitution and government of the Lutheran Church. That the Augsburgh Confession was adopted and received by the said church and congregation, as its confession of faith; and the doctrine taught, preached and inculcated by its clergyman, was in conformity with, and founded upon the Augsburgh Confession; and its temporal and spiritual government, conformed in all respects to that of the Evangelical Lutheran Church as before stated; and that said church was founded by its members and founders, as the professors and followers of the doctrines, and tenets of the Evangelical Lutheran Church, as declared and expressed by the Augsburgh Confession of Faith, and for the sole purpose and object of having the said faith and doctrine, and no other, preached and