French v. Old South Society in Boston

Chapman, C. J.

This case comes before us without evidence, it being agreed that the facts stated in the pleadings are true, and only the questions of law arising upon the pleadings are submitted to the court.

By St. 1845, e. 229, the “ Proprietors of pews in the Old South Meeting-house” were incorporated by the name of the “ Old South Church,” their name being changed in 1859 to the “ Old South Society in Boston.” They had then been organized for more than one hundred and fifty years according to the usages and laws existing in the early history of the city of Boston, and consisted of the holders of pews under deeds executed according to the regulations then existing. The voters in the organization were only the owners of pews; and they now constitute the corporation, and own the real estate and meeting-house.

The plaintiff and those under whom he claims were for many years the owners of pew No. 76, respecting which this controversy has arisen, and the only material part of it is the condition referred to in the argument. This condition is, that, “ if the said [grantee] or his legal representatives shall leave the said meetinghouse, he shall first offer .the said pew to the treasurer for the time being, of said corporation, for the aforesaid sum of dollars, and if he shall for the space of thirty days refuse to pay the same, after deducting all arrears that shall then be due, it shall then be lawful for the said [grantee] or his legal representatives, after paying such arrears, to sell the said pew to any one person, and to one person only, upon the same conditions as are contained in this instrument, and upon no other. But if the said [grantee] or his legal representatives, upon his or their leaving the said meeting-house, shall neglect to offer the said pew as aforesaid, then he or they shall forfeit the same to the corporation.”

The plaintiff’s deed was made in 1830, prior to the act of incorporation. Those deeds were not' precisely like the form referred to in the answer, but the condition was substantially the same, and the foregoing is the form to be referred to by agreement of the parties in this case. At the foot of the deed is an agreement of the grantee, assenting to the condition. The form of the condition is established by a by-law. In respect to by-laws of this character, Chief Justice Shaw says, in Attorney General v. Federal Street Meeting-house Proprietors, 3 Gray, 1, 47, “ It is competent for such a society to make such reasonable by-laws and regulations, respecting the sale and purchase of pews, as they think their interests as a religious society may require. And it is usual for such societies to make such regulations in regard to the sale of their pews, and express them in the deeds they issue, as to prevent an indiscriminate sale of pews, and they retain some right to elect and determine whom they will associate with, or rather who may associate with them. Otherwise, if it were free to anybody to purchase pews without restraint, a number of people of another denomination, finding pews low, might purchase them, and become a majority, and thus turn the proper congregation out of their own house.” These remarks apply to the Old South Society; for the act of incorporation merely invests the proprietors with corporate powers, leaving them the title to their property; and their by-laws continue in substance the same conditions in their deeds that they had been accustomed to use.

Since April 1867 the plaintiff has ceased to worship with the defendants, or to attend any of their meetings or act therein, and has connected himself with another religious society in Boston. This must be regarded as “ leaving the meeting-house ” within the terms of the deed. He has neglected to offer his pew to the treasurer, and has rented it to a third person. The defendants have entered for forfeiture, and collected of his tenant the rents for which he brings this action. If the condition contained in the deed is valid, there can be no doubt that his title is forfeited, according to the terms of the condition.

The Gen. Sts. o. 30, § 6, (Bey. Sts. c. 20, § 4,) which provides that “ persons belonging to a religious society shall be deemed to be members until they file with the clerk a written notice declaring the dissolution of their membership,” is not applicable to a case like this; for that provision relates to religious societies organized in the usual method, and not to organizations like this, whose rights of property would be essentially changed by such a provision. The incorporation of the proprietors by the St. of 1845 only gives them the powers and privileges, and subjects them to the duties, liabilities and restrictions, contained in the 20th and 44th chapters of the Revised Statutes, so far as the same are applicable to this corporation. The General Statutes made no change in this respect, and membership is still dependent, as it has always been, upon the title to pews. "

The doctrine, that conditions against alienation in a conveyance in fee simple are void, has never been held to be applicable to conveyances of pews, for the reasons stated by Chief Justice Shaw, and cited above. The tenure by which pews are held in this Commonwealth is peculiar.

It is objected that the rule against perpetuities makes the conditions of the plaintiff’s deed void. If a perpetuity may be defined as “an estate unalienable though all mankind join in the conveyance, (see Scatterwood v. Edge, 1 Salk. 229,) or “ where, if all that have interest join, yet they cannot bar or pass the estate,” (see Washborn v. Downs, 1 Ch. Cas. 213,) here is no violation of the rule, for the plaintiff and defendants could at any time join in a conveyance of the property. The grantee took an estate on condition subsequent, and the possibility of reverter remaining in the grantor on breach of the condition is not subject to the rule against perpetuities, even if the pew is held as real estate. Brattle Square Church v. Grant, 3 Gray, 142.

Judgment for the defendants.