of the Methodist Episcopal church of the United States of America, according to the rules of and discipline which, from time to time, may be agreed upon and adopted by the ministry and preachers of the said church at their general conference in the United States of America; and in further trust and confidence that they shall at all times forever hereafter permit such ministers and preachers, belonging to the said church, as shall, from time to time, be duly authorized by the general conference of the ministers and preachers of the said Medodist Episcopal church, or by the annual conference, to preach and expound God's holy word therein." This deed was recorded May 12, 1853, and a house of worship was erected upon the land described in it, mainly from the contributions of the trustees and members of their families, though small sums were contributed by others. After the house of worship was erected it was used for the purposes of the Methodist Epicopal church, without, so far as we are informed, any dispute or controversy respecting the right, until some time in the year 1866. It was also at times used for the religious meetings of other denominations, with the consent of the trustees, and we have no information of any want of harmony between the trustees and the society.

On the first of November, 1866, however, for reasons not sufficiently explained, James Clark, Thomas Clark and Thomas Walker, three of the trustees, got together and assumed to audit and allow claims in favor of those who had contributed to the erection of the house of worship, and to execute a mortgage on the church lot to John Clark for moneys to meet these allowances, and to make certain necessary repairs. The amount of the mortgage was $1,456.79. When the existence of this mortgage was made known, James Clark and Thomas Clark, who were members of the church, were brought to trial on a charge of immoral conduct connected with the transaction, and were expelled. Thereupon the Clarks, claiming title to the lot, proceeded to close the house of worship against the church. Rev. A. R. Bartlett was then officiating as pastor for the society, and on one occasion he was locked out of the house and preached to his assembled congregation from the steps in front of it. Subsequently an arrangement was made, which is explained by Mr. Bartlett, as follows:

"I proposed to the defendants that, as they claimed title, and as the trustees of the church claimed title, they, the defendants, should refrain from interrupting the services, take v3-14 (no. ii) (209)

off the irons they had put upon the doors, and that we should go there when we pleased; that we should not ask them to go there, and that they should not ask permission of the trustees to go there, and that the occupancy of the church should not be to the prejudice of either party; and, if they would consent to these conditions, we would refrain from the further prosecution for disturbances of our meetings previous to that. The defendants claimed title to the property and the right to close the house. * * The defendants assented to the propositions I made to them."

This seems to have been in October, 1867. It incidentally appears from the record that there was then a suit pending against defendants for disturbing religious meetings in the house, and Mr. Bartlett says: "It was agreed that the trial should go on, and the question of title should be decided in a court of law, and if it was decided that the title was in the defendants, the trustees would let it alone; and if the title should be decided to be in the trustees, the defendants should let it alone, and that the keys should be surrendered to the party having the title." The suit at law we understand to have terminated before this bill was filed, but we are not informed what was decided by it, and as neither party claim anything under it, and it is only mentioned by bare allusion, the inference is that nothing important to this controversy was decided.

Another witness, speaking of the arrangement respecting the occupation of the house to which Mr. Bartlett testified, says: "It was agreed that the obstructions should be removed, and the church occupied by each party without prejudice to either party." It is undoubted that when this arrangement was made the defendants had possession of the housewhether rightfully or wrongfully we do not now decide.

In filing this bill the complainants claim to do so in a corporate character; and it now becomes important to know how they acquired that character. The bill avers that complainants are a corporation "duly organized under and by virtue of the laws of the state of Michigan Of Religious Societies,' chapter 68 of the Compiled Laws, and acts amendatory thereto, including an act to provide for the appointment of trustees in certain cases, approved February 17, 1857, and other acts amendatory of said chapter, and the laws relating to religious societies." The reference here is to the Compiled Laws of 1857. The earliest law embraced in that chapter, under which a religious society could be incorporated, was the

act of February 13, 1855, and from the reference to the act of February 17, 1857, we are to understand, we think, that the organization relied upon took place after that date. But neither in the bill nor by the testimony are we informed of any proceedings taking place between the time when Mr. Brown gave the certificate already recited, and the giving of a somewhat similar one by Mr. Bartlett in 1868, as hereinafter shown, which could operate as an incorporation, or have any tendency to show that an actual incorporation had taken place within that period.

It is, however, provided by an act passed in 1869, (Comp. L. 1871, § 3089,) "that whenever any religious society or corporation shall have exercised the franchises and privileges of a corporation for the term of ten successive years, the same shall be presumed to have been legally organized in pursuance of the laws of this state.”

Complainants claim the benefit of this provision, and are entitled to it if they show that they come within it. Unfortunately we do not find in the record the evidence that they had exercised the franchises and privileges of a corporation for the period named, or for any period whatever, except since the certificate given by Mr. Bartlett created a corporation, in fact, as will be presently shown.

Before any action can be accepted and treated as the exercise of a corporate franchise or privilege, it must be made to appear that it is something which distinctly pertains to corporate powers. It must not be an act ambiguous in itself, and which as properly belongs to a partnership or to an unincorporated association of persons. Fredenburg v. Lyon Lake Church, 37 Mich. 476. It must be something which in itself implies an assertion of corporate existence; that shall inform those who know of it that corporate powers are claimed, so that the public authorities, if they dispute the fact, may take proceedings to have it tried; otherwise, a corporation which must owe its franchises to the grant of the state, might come into existence by mere lapse of time, without a grant, and without the previous knowledge of the public or of the authorities that anything was being done or asserted that implied a claim of such franchises.

The purpose of the statute is to put upon those who might be disposed to deny the incorporation the necessity of doing so, by effectual proceedings, within a reasonable time; and not suffer it to be delayed until the evidence may be lost by the death of those who may know the facts, the loss of papers, or

other proofs; and it is a very reasonable statute, with a commendable purpose in view. But it can have no application where no distinct claim or user of corporate rights appears.

Whatever may be the franchises and privileges of a corporation they must have this peculiarity, that they must be franchises and privileges that an unincorporated collection of people cannot possess or enjoy. In this case it is not shown that the religious body represented by the complainants has been in the possession or enjoyment of any such franchises or privileges. There has been a religious organization which has supported regular worship; debts have been contracted in its name; it has been represented in the annual conventions or conferences; it has received members to its communion, and it has tried and expelled those accused of misconduct. But these are things which unincorporated religious societies have been accustomed to do from the foundation of the Christian church to this day, and there if nothing in any one of them which can be regarded as an assertion of corporate existence or authority. A church primarily is nothing but a voluntary association of persons for religious worship; and for its main and distinctive purpose corporate powers are not important. Indeed the church, as such, is not usually incorporated; but the corporation is an associate body, composed of the congregation, who may or may not be religious persons, and who take on corporate powers for convenience in holding and transferring property, entering into contracts, etc. Where there is no incorporation those who deal with the church must trust for the performance of civil obligations to the honor and good faith of the members; whereas, in case of incorporation, they would deal with a legal body capable of binding itself; and where there is no incorporation property must be held for the church by trustees, as was intended here.

There is, however, distinct evidence that in 1858 [1868] proceedings were taken to form a corporation, which were effectual. On the sixth day of May of that year Mr. Bartlett, as pastor in charge, executed under his hand and seal, and acknowledged in due conformity to the statutes of 1855 and 1857, a certificate of the appointment of Eli Colliers and four others as trustees, therein declaring the corporate name to be "the trustees in trust for the first society of the Methodist Episcopal church of Newark," which is the name in which this suit is brought. From that time, therefore, a corporation has

existed which has been competent to hold property and bring suits. This suit was instituted in 1869.

The first question on the merits naturally arising on these facts is whether this corporation became entitled to the land conveyed in trust by John Clark, and upon which the house of worship is erected. A preliminary question is raised, however, whether the corporation can try their right in this suit. The defendants deny that the settled rules of law will permit it.

The bill is a bill to quiet title. A bill for that purpose is based upon an actual possession by complainant of the land in dispute, and when entertained it is upon the ground that complainant has no other means of bringing his title to an adjudication. Stockton v. Williams, Wal. Ch. 120; S. C. on appeal, 1 Doug. (Mich.) 546; Moran v. Palmer, 13 Mich, 367; Tabor v. Cook, 15 Mich. But the evidence in this case does not show that complainants, when they filed their bill, had the possession necessary. Whether wrongfully or rightfully, the Clarks obtained exclusive possession of the church premises when the quarrel arose, and such possession as the complainants obtained afterwards was given them by the arrangement with the Clarks. This was not an exclusive possession, and it was given and taken on the express understanding between the parties that neither should gain nor lose in legal rights thereby. But it is obvious that if the possession thus obtained could be made to support a suit in equity, the party bringing the suit would gain an important right thereby; and this seems to us so manifestly opposed to the understanding, that we are compelled to hold that, as a suit to quiet title, this suit cannot be sustained.

There is another branch to the bill, however, in its prayer that the mortgage to John Clark be set aside. For the purpose of relieving the title of an encumbrance, possession in the complainant is not absolutely essential. Jones v. Smith, 22 Mich. 360, 365. It would, therefore, be competent for us to examine and dispose of the question of the validity of this mortgage on this record, and doing that would settle the question of the title. But the title depends upon the effect of the trust deed, and the most important question connected with that has not been argued before us. While, therefore, we might express an opinion upon all the questions that could legitimately be raised in the case, we deem it hardly proper to do so upon this record, but shall proceed to indicate some of the difficulties.