Richards a. The Northwest Dutch Church.

of the representatives of the grantee in the vault which their ancestor had purchased?

The right of burial, it seems to me, when confined to a churchyard, as distinguished from a separate, independent cemetery, although conveyed with the common formula of "heirs and assigns forever," must stand upon the same footing as the right of public worship in a particular pew of the consecrated edifice. It is an easement in, and not a title to, the freehold-and must be understood as granted, and taken, subject (with compensation of course) to such changes as the altered circumstances of the congregation or the neighborhood may render necessary.

The selection of a place of burial, in the ground forming the site of a church, we may safely say, is always made with reference to its religious associations, and with an eye to their continuance.

Suppose the edifice to be destroyed by fire without the means of rebuilding-an event not, entirely improbable or unprecedented, must the premises continue an unsightly ruin with no power anywhere to meet the emergency?

Or must we not rather, from the nature of the contract, and from the character of the subject of its provisions, infer a silent understanding between the parties (quite as operative as if expressed in words at length), that in such case the corporation of the church-in other words, the representative body of whom the pew-owners, vault-owners, and other members of the particular religious association may be said to be the constituents— should sell the real estate which had become unfit for its original object, and "with the consent and approbation of the chancellor, apply the moneys arising therefrom to such uses as they should conceive to be most for the interest of the society to whom the real estate so sold belonged."

Every deed of conveyance, whether for a pew, or a vault, or a house, is a contract between the parties, to be interpreted according to their actual or fairly to be presumed intent.

The statute, to prevent all doubt on this point, makes it in terms the "duty" of all courts of justice, "in the construction of every instrument creating or conveying any interest in land" to carry into effect "the intent of the parties." (1 Rev. Stat.,

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Richards a. The Northwest Dutch Church.

This intent the statute further provides-shall be "collected from the whole instrument," and of course from its scope, object, and subject-matter, and not from the mere letter of a particular sentence.

Although, therefore, the deed in question purports to convey a certain specific piece of ground, twenty feet by twenty, we must bear in mind that it describes the premises as belonging to a church corporation, as adjacent to a church edifice, as in a churchyard, and to be used exclusively as a place of interment, and subject to church assessments for regulation and repair.

In this view, both parties, it seems to me, the one in executing, the other in accepting the conveyance, must have considered it as the grant of a mere easement, and not of an ordinary absolute estate in fee.

And hence no order of the chancellor was applied for, and in that view, none was required-although such order, in all cases of church property is indispensable to an absolute conveyance of the soil.

Like the sale of a church pew, which gives the mere right to worship in the particular place while the church stands, and is occupied for religious purposes, the sale of a church vault gives, it would seem, the mere right of interment in the particular plot of ground, so long as that and the contiguous ground continues to be occupied as a churchyard. The owner of the easement may be, in case of disturbance, and no doubt is, entitled to a reasonable compensation or equivalent; but he cannot interpose a veto to the disposition of the soil, should the court, as was actually the case in this instance, on application of the legitimate church officers, deem such disposition proper, and order it accordingly.

Every person purchasing either a pew in a church edifice, or a grave in a churchyard, appendant to a church, does so with the full knowledge and implied understanding that change of circumstances may, in time require change of location, and that the law (a positive statute which has been in existence nearly half a century), looking to such exigency, authorizes the corporation, when it arrives, as the representative of all interests, with the sanction of the court, to sell the soil in absolute fee, discharged of all easements, and to make some other more appropriate investment or disposition of the proceeds.

Richards a. The Northwest Dutch Church.

Counsel have cited several authorities in support of their respective positions. Those relating to the pew-rights are uniform. They all concede that such rights, however strongly çonveyed, are devested by a regular sale of the church edifice.

Those relating to vault-rights are discordant, and neutralize each other. Vice-chancellor McCoun, in the Brick Church case, held one way, and Mr. Justice Edwards in that of another church, held the opposite. (See 3 Edw., 155; and 8 Barb., 130.)

The reasoning, which leads to the result arrived at in the case of church pews, is applicable, as it seems to me, in a great degree to the case of church vaults. It proceeds upon the assumption-a necessary assumption-that church grants in such cases are made upon the implied condition, that the land shall be subject to the right of what may be called eminent domain-that is, subject to the right of resumption whenever the public use, or a change of circumstances may, in the judg ment of the church and of the court, require the exercise of such right; but subject also to the duty of making a just and fair compensation, in the form of money or other suitable equivalent, if required.

As the complaint in this case only calls in question the validity of the sale, and is not adapted to a claim for compensation, it must be dismissed with costs.

BOGERT a. THE NORTHWEST PROTESTANT REFORMED DUTCH

CHURCH.

This case presents the same questions as that of Richards and others, with the additional one that a decree of sale in a partition snit, in which all the owners of the vault, including the plaintiffs, were parties, was made by consent, and a title conveyed, under or through it, to the defendants or their grantees.

Now, although an easement, such as the right of burial, may not be a proper subject of partition, and although the proceeding might, on that ground, have been demurred to, yet no objection at the proper time having been taken, and an express consent, even, having been given, the sale so made by decree, must have the same effect as if made by direct conveyance, executed by all the parties to the partition suit. Bill dismissed, with costs.

Cook a. Farmer.

COOK a. FARMER.

Supreme Court, First District; Special Term, August, 1860.

SERVICE BY PUBLICATION.-AFFIDAVIT OF ABSENCE.

An affidavit made to obtain an order for service of summons by publication is insufficient to sustain an order which directs publication merely, without directing service by mail, unless such affidavit shows the fact of plaintiff's inability to discover the place of residence of the defendant sought to be served. An order made on such a defective affidavit is without jurisdiction.

Motion to compel purchaser at a judicial sale to take a conveyance.

The facts are stated in the opinion.

INGRAHAM, J.-This was an action brought for the partition of lands. One of the defendants, Josephine A. Demphill was an infant, and resided in California. In order to obtain jurisdiction over this defendant, it was necessary either to make a personal service, or to proceed under section 135 of the Code by publication. On the plaintiff's affidavit, it appeared that "Josephine Demphill resided in California, but her present place of residence therein deponent was unable to state." On this affidavit, the judge made an order that it appeared to his satisfaction that the defendant Josephine could not after due diligence be found within the State, and that it appeared in like manner that the residence of Josephine Demphill was neither nor could with reasonable diligence be ascertained by the party making the application, and he directed publication, without directing service on the party.

The Code provides (see § 135) that when publication is ordered, the court must direct a copy of the summons and complaint to be deposited in the post-office, directed to the party at his residence, unless it appears that such residence is unknown to the party, nor can with reasonable diligence be ascertained by him.

Cook a. Farmer.

The fact of non-residence is to be made out to the satisfaction of the judge. The fact of inability to discover the residence of the defendant is to be made to appear.

There is but one way in which facts can be made to appear, that is by evidence. In applications of this kind it must be by affidavit.

In Hallett a. Righters (13 How. Pr., 43), Justice Smith says: "The facts should have been stated in the affidavit presented to the judge, which should be filed with the order, and the order must be construed in connection with the affidavit."

In Sibley a. Waffle (16 N. Y., 189), it is said, "The affidavit showed what the officer considered satisfactory proof." "It is not to be presumed that he had other evidence, or that the publication was different from the statement in the affidavit."

In Warren a. Tiffany (9 Abbotts' Pr., 67), the affidavit was referred to, to show that an order of publication was unauthorized, and the order was held to be void because the affidavit did not contain the facts necessary to warrant that proceeding. I think it clear in this case, that the affidavit furnished no evidence that any attempt had been made to discover the residence of the defendant. The party making said he could not state where it was, but he should use efforts to discover it. In such a total absence of proof of any attempt to discover such residence, it is difficult to adopt the conclusion that any jurisdiction over this defendant had been obtained.

POTTER, J., in Titus a. Relyea (16 How. Pr., 371), says: "We are bound to see that the statute has been strictly pursued. The persons and estates of individuals would be subject to alarming hazards, if jurisdiction could be obtained over them by any thing less than the fullest compliance with all their requirements."

The affidavit was in my judgment clearly defective, and the fact that the judge said he was satisfied upon a point on which no evidence was produced, does not confer jurisdiction.

The present application is to compel the purchaser to take the property notwithstanding the defect. If I am right in the views above expressed, the title is defective, and the motion should not be granted.

Even if the point was a doubtful one, a purchaser under a