Den ex dem. Cairns v. Hay

(with whom Whitehead J. concurred) delivered the following opinion :

It has long been well settled, as well in regard to the contracts of a corporation as of individuals, that a variance or mis*177take of the name is not fatal, provided there ia a sufficient description of the parties; and that even in grants and conveyances, it is sufficient, if the name be expressed in sense and substance, although not in the precise words. So it has been held, that in the case of misnomer of a corporation, the grant or obligation is not thereby defeated or destroyed, if its identity with that intended by the parties to the instrument be averred in pleading, and made apparent in proof. Allways Creek v. String, 5 Halst 323; Woolwich v. Forrest, 1 Pm. 115; Middleton v. McCormick, 2 Ib. 500. In ejectment, as the nature of the pleadings and the character of the issue do not admit of such averments, the mistake, so far as is otherwise legal to be shewn, may be proved in evidence, and a recovery may be had on a grant to a corporation, notwithstanding any misnomer, if the true intention of the parties be clearly made to appear. In this case it does not appear that any such evidence was offered at the trial. The defendant insists that on the face of the instrument it sufficiently appears that the conveyance was made to the corporation, and not to the trustees in their individual capacity. The deed is to the lessors of the plaintiff, by name described as trustees of “ The Associate Presbyterian Congregation of Newark,” to have and to hold to them “ their successors and assigns forever.”

The designation, as Trustees of the Congregation, is a mere desariptio personarum; but the stress of the argument in behalf of the defendant was upon the intent supposed to be shown by the use of. the words “ their successors and assigns,” words appropriate to the construction sought to be established. But no case cited, as to effect of intention, will go to this extent. Wo are not warranted by such inference to disregard and reject the plain and explicit language of the instrument. Whatever may be the effect, whether it be a mere estate for life, for want of words of perpetuity or otherwise, the deed is in so many words a conveyance to the lessors of the plaintiff, and we are of opinion that the ruling of the justice at the Circuit was right.

Randolph, J. It is a general rule, of construction of deeds and other contracts, that the intention of the parties is to pro*178vail wherever that can be satisfactorily ascertained and carried into effect without violating any principle of law. 3 Blk. Com. 107; Broom’s Max. 238; 4 Am. Com. Law 251. And in order to effect the object of the parties where a corporation is concerned, the courts have been ve;y liberal in correcting inaccuracies and misnomers, not suffering them to frustrate the object, if the identity of the party is manifest. Angell & Ames on Corp. 55, 123. Inhabitants of Upper Alloways Creek, &c. v. String, 5 Halst. 323, where Ch. J. Ewing adverts very justly to the cases on the subject. In the African Society v. Varick, 13 John. 38, the court say when a deed is made to a corporation, by a name varying from the true name, the plaintiffs may sue in their true name, and aver that defendant made the deed to them by that name. There to the name of the corporation was prefixed the words, “ The standing committee of,” and with the averment the court gave effect to the instrument, and there are numerous cases where some part of the name of the corporation has been omitted without destroying the bond.

But these cases all differ from the present in this, they arise from some error in setting forth the corporate name, and usually in an obligation, or other instrument for the payment of money, where the error can be easily obviated by pleading. But the present case is not a mere inaccuracy in setting out the name of the corporation, or prefixing thereto the word “ committee,” or “ managers,” or other term, which standing by itself would be a nullity, but it arises on a deed made not to the corporation, but to the lessors of the plaintiff by name, trustees of the corporation, and although it is pretty clear from the inspection of the deed itself, and particularly from the use therein of the word successors, in connection with the names of the grantees, that the object was to convey the premises to the corporation, and not to the trustees; yet we cannot give effect to that intention without striking out the names of the grantees, which we have no right to do. By the act authorizing religious societies to become incorporated, Rev. L. 475, § 3, the trustees and their successors can only acquire and hold lands, &c. in the “name of the corporation.” Of course the corporation cannot have acquired and held the premises in question in the names of the *179trustees, or other name than its own corporate name. A court of equity would no doubt construe the property to be held in trust for the religious society; but au equitable interest cannot be sold by an execution out of a court of law. The rule, therefore, to set aside the verdict which was for the plaintiff, must be discharged — with costs.

Rule discharged.

Cited in Brown ads. Combs, 5 Dutch. 38.