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-hоuse” 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 corporаtion, and own the real estate and meeting-house.
The plaintiff and those under whom he claims were for many years thе owners of pew No. 76, respecting which this controversy has arisen, and the only material part of it is the condition
The plaintiff’s deed was made in 1830, prior to the act of incorporation. Those deeds wеre not' precisely like the form referred to in the answer, but the condition was substantially the same, and the foregoing is thе form to be referred to by agreement of the parties in this case. At the foot of the deed is an agreement оf the grantee, assenting to the condition. The form of the condition is established by a by-law. In respect to by-laws of this chаracter, Chief Justice Shaw says, in Attorney General v. Federal Street Meeting-house Proprietors,
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, whоse rights of property would be essentially changed by such a provision. The incorporation of the propriеtors by the St. of 1845 only gives them the powers and privileges, and subjects them to the duties, liabilities and restrictions, contained in thе 20th and 44th chapters of the Revised Statutes, so far as the same are applicable to this corporatiоn. The General Statutes made no change in this respect, and membership is still dependent, as it has always been, upоn the title to pews. "
The doctrine, that conditions against alienation in a conveyance in fee simple arе void, has never been held to be applicable to conveyances of pews, for the reasons statеd by Chief Justice Shaw, and cited above. The tenure by which pews are held in this Commonwealth is peculiar.
It is objected thаt 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 jоin, 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 defеndants could at any time join in a conveyance of the property. The grantee took an
Judgment for the defendants.