majority">By the Court, Balcom, J.

The plaintiffs are not named as grantees in the deed of the land in dispute, that was executed by Hughston and wife in 1828; nor have the grantees named in that deed ever conveyed the land to the Huntsville or Otego Baptist Society; and the plaintiff's counsel has conceded that the plaintiffs and their associates are not legally incorporated. His position is that they are trustees of the society, notwithstanding its lack of a corporate existence, and that they have all the rights that the grantees named in the deed from Hughston and wife took under and by virtue of that conveyance; in other words, he insists that the plaintiffs can maintain the action, as trustees de facto of the society, though it has never been incorporated, if they truly represent the religious faith of those members of the Baptist denomination of Christians who took the deed from Hughston and wife and erected the meeting house on the land therein described. This position is clearly untenable. The defendants are in the actual possession of the land and the meeting house thereon, under a claim that they represent a corporation that owns the same; and in no view of the case can it he said that the plaintiffs have any more than a moral right to the possession thereof.

If the society had been legally incorporated, and" the plaintiffs were its trustees and entitled to the possession of the land *34and meeting house thereon, the action should have been brought in the corporate name of the society. (3 R. S. 2d ed. 208, § 4. The People ex rel. Fulton v. Fulton, 1 Kern. 94.) For the plaintiffs do not set up any claim to the land or meeting house in their individual characters, but only as representatives or trustees of the society; and trustees of religious societies cannot sue, as such, except “by their corporate name or title.” (3 R. S. 2d ed. 208, § 4.)

It is unnecessary to determine whether the defendants are trustees of the Otego Baptist Society, or whether they lawfully represent it; for the reason that the plaintiffs have no legal or equitable title to the land in dispute, and no legal or equitable right to the possession or use of the meeting house thereon.

The legal title to the land is probably in the grantees named in the deed from Hughston and "wife; but if the defendants and their associates were duly incorporated in 1856, as they claim to have been, and truly represent the society named in that deed, perhaps they could compel the grantees therein named to convey the land to the society, by an action to be brought in its corporate name. (See Robertson v. Bullions, 9 Barb. 64; 1 Kernan, 94; 3 R. S. 2d ed. 208, § 4.) But that question need not be decided. It is enougli to defeat this action that the plaintiffs have no title to the land, and no legal or equitable right to the possession thereof or the meeting house thereon.

It will, not be expected that I should cite authorities to establish that a deed of land to trustees de facto of an unincorporated religious society conveys no title to the society. It is sufficient to say that neither the decision of the supreme court, nor that of the court of appeals, in Robertson v. Bullions, (1 Kernan, 243,) relied upon by the plaintiffs’ counsel, shows that an unincorporated religious society can acquire title to land by such a deed.

It is a settled rule of the common law that a community, not incorporated, cannot purchase and take property in succession. (See Jackson v. Cory, 8 John. 385; 9 id. 73.)

*35[Tioga General Term,January 4, 1859.

Mason, Balcom and Campbell, Justices.]

We are not required to determine the moral rights or religious duties of the parties, touching the matters in controversy ; therefore nothing more need he said in the case, except to announce the conclusion that.the judgment in the action should be-affirmed, with costs.

Decision accordingly.

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