congregation. Upon that supposition, if Elder Witherell is permitted by the trustees to inculcate a different doctrine in his public discourses in this church, I presume Lord Eldon would consider it such a departure from the original establishment as to justify his interference. Even in that case, however, he would require the facts to be stated in the bill, so that the defendants might take issue thereon. Where this court is obliged to administer a trust, the chancellor can not put his conscience into the keeping of any ecclesiastical or other tribunal. But the nature of the original trust, and the particulars in which it has been violated, must be stated in the pleadings, so that the court may see in what that violation consists. For aught that appears on this bill, the council of the association may have decided against Elder Witherell because he preached some other doctrine from the pulpit, as inconsistent with the original foundation of the society as anti-sabbatarianism; but which this court might consider a political rather than a religious heresy. I confess I have always entertained serious doubts whether any civil tribunal in this state could interfere to prevent the majority of the corporators in a religious society from introducing such changes in the doctrines or modes of worship in their churches as they might deem expedient, and which they could introduce through their trustees, elected in the manner prescribed by law.

For myself, although my opinions are fixed and settled as to the essential doctrines of Christianity as taught in the church to which I belong, I am unwilling as a civil judge to assume the responsibility of deciding upon the correctness of the religious tenets of others, either in matters of faith or otherwise. Neither am I prepared to say that it would be right, or expedient, to adopt the principle of Lord Eldon here, where all religions are not only tolerated, but are entitled to equal protection by the principles of the constitution. Upon Lord Eldon's principle a society of infidels, who had erected a temple to the goddess of reason, could not, upon the conversion of nine tenths of the society to Christianity, be permitted to hear the word of life in that place where infidelity and error had once been taught. And upon the same principle, the newly created equity jurisdiction in a neighboring state might find itself constrained to order some of the parishes within its limits to employ religious teachers who should inculcate the doctrine of witchcraft as it was taught in their churches at the time of their first organization. If courts are unwilling to go these lengths they must

abandon the principle, or assume the responsibility of deciding for the consciences of others what are and what are not essential differences of opinion in matters of faith, as well as of practice.

Without pursuing this subject further, it is sufficient for the decision of this application to say there is nothing in this bill to authorize the court to grant the relief which is now asked for against these defendants.

The motion for an injunction is therefore denied, with costs.

PROPERTY IN PEWS.-See Daniel v. Wood, 11 Am. Dec. 151, and note to Gay v. Baker, 9 Id. 161. A pew-holder's rights are subject to the power of the trustees to alter and repair the church: Voorhees v. Presbyterian Church, 5 How. 74; 17 Barb. 108. His interest is a qualified one; it does not entitle him to rise from his pew during service to interrogate the pastor and fix a quarrel upon him: Wall v. Lee, 34 N. Y. 149.

PEW-HOLDER'S ACTION FOR DISTURBANCE.-See Gay v. Baker, 9 Id. 161, and note, and Daniel v. Wood, 11 Id. 151. He may bring trespass for a disturbance of his possession: Shaw v. Beveridge, 3 Hill, 28; McNabb v. Pond, 4 Bradf. 10.

Cited, in regard to what extent charitable or religious uses are sanctioned by the written law of New York, in Church of the Redemption v. Grace Church, 6 Hun, 171; Pearsall v. Post, 20 Wend. 118; Robertson v. Bullions, 9 Barb. 79; S. C., 11 N. Y. 249, where it is stated that property may be granted or dedicated to the use of a body incapable of holding it in its own right; and as deciding that the corporation formed under existing laws succeeded without any formal conveyance, to all the property of the unincorporated society, and to all property held for its use: Reformed Church v. Schoolcraft, 65 N. Y. 144; Trustees of the South Baptist Church v. Yates, 1 Hoff. Ch. 143; Bowen v. Irish Pres. Cong. of N. Y., 6 Bos. 267; Matter of Trustees N. Y. P. E. Pub. Schools, 31 N. Y., 592. The principal case is further referred to upon the authority of the tribunals of law to interfere to prevent changes in the doctrines of a church: Miller v. Gable, 2 Denio, 523; S. C., 10 Paige, 647; Kinckern v. Lutheran Churches, 1 Sandf. Ch. 510, the authority being based upon the power of chancery to oversee the performance of trusts and prevent the employment of trust funds for objects other than those of the trust. But the mere denominational character of a church may be changed by its corporators at pleasure: Madison Av. Baptist Church v. Baptist Church in Oliver St., 1 Abb. (N. S.) 226; S. C., 3 Rob. 594.

GRIMSTONE v. CARTER.

[3 PAIGE CH. 421.]

ALLEGATIONS POSITIVELY SWORN TO IN A BILL, and not substantially denied in the answer upon the defendant's own knowledge, must be taken as true.

WHERE THE EQUITIES ARE EQUAL, and neither has the legal title, the one who has the prior equity must prevail.

CHANCERY WILL NOT PERMIT THE PARTY having the subsequent equity to protect himself by obtaining possession of the legal title after he has either actual or constructive notice of the prior equity.

A BONA FIDE PURCHASER must aver that he not only paid the purchase money, but that he obtained the legal title before he had notice of the prior equity.

POSSESSION IS SUFFICIENT TO PUT ON INQUIRY as to the actual rights of the possessor, and is good constructive notice of those rights.

BETWEEN A PURCHASER IN GOOD FAITH under the recording act, and a bona fide purchaser within the decisions of the courts of equity, there is no distinction.

THE OBJECT OF THE RECORDING ACT was to protect a subsequent bona fide purchaser against a previous conveyance of the legal estate.

ABSOLUTE DEED WITH A DEFEASANCE SHOULD BE RECORDED in the book of mortgages, otherwise no benefit is derived from the recording of the instrument.

APPEAL from the decision of a vice-chancellor, dissolving an injunction. Grimstone being possessed of a nine-acre tract and a large lot, which was incumbered by mortgages to the sum of one thousand seven hundred dollars, conveyed them both to Carter by warranty deed, in consideration of the discharge of the mortgages. Carter entered into a written agreement with Grimstone to reconvey the nine-acre tract whenever requested, and the north half of the large lot, No. 54, on receiving the balance of the mortgage moneys after deducting one thousand six hundred dollars and interest. The complainant continued in possession of the north half of No. 54. Carter subsequently conveyed the whole of that lot to Seymour and Wells for a full consideration; they knew that Grimstone was in possession of a part, but thought him Carter's tenant at sufferance, and had no actual notice of the circumstances under which Carter held until after their purchase.

M. T. Reynolds and A. S. Alexander, for the complainants. A plea of purchase for valuable consideration, without notice, must aver that the vendor was in possession, and that the purchase money was actually paid: Jewett v. Palmer, 7 Johns. Ch. 65 [11 Am. Dec. 401]; 2 Madd. Ch. Pr. 323; Walwyn v. Lee, 9 Ves. jun. 32; Daniels v. Davison, 16 Id. 249, 252. Possession by another than the vendor is sufficient to excite inquiry, and would lead to knowledge of the occupant's claims: Galentine v. Erwin, Hopk. 48, 55, 56; Murray v. Ballou, 1 Johns. Ch. 566; Heatly v. Finister, 2 Id. 158; Smith v. Low, 1 Atk. 489. It is constructive notice to a subsequent purchaser, who must take subject to the occupant's rights: Gouverneur v. Lynch, 2 Paige, 300; Chesterman v. Gardner, 5 Johns. Ch. 29, 32 [9 Am. Dec.

265]; Allen v. Anthony, 1 Meriv. 282; 2 Ves. 437; 13 Id. 118; Daniels v. Davison, 16 Id. 249; S. C., 17 Id. 433; Tuttle v. Jackson, 6 Wend. 213, 226.

S. M. Hopkins and H. F. Penfield, contra. The defendants are bona fide purchasers for a valuable consideration fully paid, without notice of a claim upon the estate, and they will be protected in equity: Sugd. Law of Vendors, 476; Oxwick v. Plumer, Bac. Abr., tit. Mortgage, E. 3; Frost v. Beekman, 1 Johns. Ch. 288; S. C., 18 Johns. 544 [9 Am. Dec. 246]; Jackson v. Henry, 10 Id. 185 [6 Am. Dec. 328]; Whittick v. Kane, 1 Paige, 202. This protection can be avoided only upon the ground of fraud: Sugd. Law of Vendors, 471; Jackson v. Burgott, 10 Johns. 457 [6 Am. Dec. 349]; Jackson v. Elston, 12 Id. 452; Jackson v. Van Valkenburgh, 8 Cow. 260; Hine v. Dodd, 2 Atk. 275; Jolland v. Stainbridge, 3 Ves. jun. 478; Dey v. Dunham, 2 Johns. Ch. 182; S. C., 15 Johns. 555 [8 Am. Dec. 282]; Berry v. Mutual Ins. Co., 2 Johns. Ch. 603; Brinckerhoff v. Lansing, 4 Id. 65 [8 Am. Dec. 538]. See also Eyre v. Dolphin, 2 Ball & B. 301.

The CHANCELLOR. Upon the final hearing of this cause, the complainant will be holden to strict proof of the agreement set up in his bill, on which he founds his claim to the equitable interference of this court, and if he does not succeed in establishing such agreement, his bill must be dismissed, whatever may be the result of the present application. In this stage of the cause, however, and before he has had an opportunity to examine his witnesses, every allegation positively sworn to in the bill, and which is not substantially denied in the answer, upon the defendant's own knowledge, must be taken as true. The case, then, presented on the appeal, is this: The complainant was in possession of the north half of lot No. 54, at the time of the purchase by Seymour and Welles, under a written agreement from Carter to reconvey that part of the lot to him upon the payment or security of the small balance due on the mortgages, over and above the one thousand six hundred dollars, which Carter was to pay for the south half of the lot. And these purchasers from Carter took their conveyance, and paid the purchase money for the whole lot, after they had actual notice of the complainant's possession; and without making any inquiries as to the extent of his rights, or the nature of that possession.

It is the settled doctrine of this court that where the equities of the parties are equal, and neither has the legal title, the one

who has the prior equity must prevail. Nor will this court permit the party having the subsequent equity to protect himself by obtaining a conveyance of the legal title after he has either actual or constructive notice of the prior equity: Tourville v. Naish, 3 P. Wms. 307; More v. Mayhew, Freem. Ch. 175; Wigge v. Wigge, 1 West. 680; S. C., 1 Atk. 384. To protect a party, therefore, and to enable him to defend himself as a bona fide purchaser for a valuable consideration, he must aver in his plea, or state in his answer, not only that there was an equal equity in himself, by reason of his having actually paid the purchase money, but that he had also clothed his equity with the legal title before he had notice of the prior equity. And if the person claiming the prior equity is in the actual possession of the estate, and the purchaser has notice of that fact, it is sufficient to put him on inquiry as to the actual rights of such possessor, and is good constructive notice of those rights: Chesterman v. Gardner, 5 Johns. Ch. 33 [9 Am. Dec. 265]; Allen v. Anthony, 1 Meriv. 282; Taylor v. Baker, Dan. 80, note a. These principles are all distinctly recognized by the vice-chancellor in his decision in this case; but he supposes there is a distinction between a purchaser in good faith, under the recording act, 1 Rev. Stat. 756, sec. 1, and a bona fide purchaser within the decisions of courts of equity in other cases. In reason there certaintly can be no foundation for such a distinction. And if this case depended upon the construction of the words "subsequent purchaser in good faith," as used in the recording act, the result would be the same. My opinion on that point is fully expressed in the case of Tuttle v. Jackson ex dem. Hills, in the court for the correction of errors, 6 Wend. 213, which opinion I believe was concurred in by all the members of the court who joined in the decision which was made in that

case.

I apprehend, however, that the vice-chancellor is under a mistake in supposing that this is a question of notice under the recording act. The object of that statute was to protect a subsequent bona fide purchaser against a previous conveyance of the legal estate, or of some part thereof, and which conveyance would be valid as against the subsequent purchaser or mortgagee, if the recording act had not been passed. But a subsequent bona fide purchaser needed not the aid of the registry act to protect him against a prior equity, or a mere agreement to convey. Having the legal title under his conveyance he would be able to defend his title at law; and the plea that he was a