MISC 117696

May 22, 1991

Essex, ss.



Plaintiffs seek a declaratory judgement that as a result of violation of provisions in a deed into the defendant, Crombie Street Congregational Church (the "Church"), title to the premises at 9 Crombie Street, Salem, Massachusetts (the "Premises") is in plaintiffs, either because title reverted or because plaintiffs exercised a right of entry. Plaintiffs also seek damages and an accounting as to rents received by the Church. There were individual defendants named in the Complaint who were or are officers of the Church, but plaintiffs waived any claim against them, leaving the Church as the sole defendant.

The parties entered into evidence a Joint Stipulation of Uncontested Facts and a Supplemental Joint Stipulation of Uncontested Facts. There was a trial on January 1 and 15, 1991 at which testimony was taken before a Court Stenographer, who has prepared a transcript. Forty exhibits were introduced into evidence and are incorporated in this Decision for purposes of any appeal. Five witnesses testified: Madalyn Spencer (Treasurer of the Church); Reverend Erwin R. Bode (Associate Conference Minister for the Northeast Area, United Church of Christ); Edith Nichols (Church member and former member of the Church Council); Reverend Charles Navle (the Minister of the Church); and Blanche Gregg (Clerk of the Church). I took a view of the Premises on the second day of trial.

On all the evidence, I find and rule as follows:

1. The Premises lie on the easterly side of Crombie Street in Salem and adjoin a lot of land, #7 Crombie Street, on which is located the church building owned by the Church. The Premises, identified as 9 Crombie Street, consists of a lot of land having the shape of an inverted "L" and having a frontage of approximately 74 feet on Crombie Street and a rear yard of approximately 132 feet in width and 45 feet in depth. A portion of the lot extending from the Crombie Street frontage and leading back at the same width to the rear of the lot is occupied by a three story brick structure, sometimes known as the "Richardson House" or "Bowker-Richardson House", to which is attached a two story addition. The balance of the lot does not have a building on it and part of that has been referred to sometimes as the "Bowker Garden". Both the Premises and the adjoining church building are prominent features of the Crombie Street National Historic District. The building on the Premises was constructed before 1811 in the Federal style and was renovated in about 1860.

2. By deed (Exhibit No. 7) dated April 2, 1941 recorded a week later at Essex South District Registry of Deeds (all recording references in this Decision are to that Registry) at Book 3250, Page 434 (the "1941 Deed"), Gertrude Farnham conveyed the Premises to the Church, as a gift.

3. The 1941 Deed is as follows: Mrs. Farnham grants to the Church with quitclaim covenants the Premises, described by a running description and identified by title reference - so far a perfectly ordinary quitclaim deed. The following language then appears:

It is further understood and agreed that said premises are to be held by said grantee as a Parsonage for the Minister of said church and as a Parish House and if said grantee should ever cease to carry on the adjoining property as a church for its own use or if said premises herein described shall ever cease to be used by said church as a Parsonage or Parish House or for other religious purposes, then said premises shall revert to me, or if I should be deceased, then to the persons who at such time would be entitled to the residue of my estate. Said premises herein conveyed shall be known as the "Bowker-Richardson House and Garden". No revenue stamps are required on this instrument.

4. Gertrude Farnham died November 27, 1962 a resident of New York and left a will under which Gertrude F. Howson, Ruth R. Farnham and Elizabeth R. Farnham, the original plaintiffs in this action, were named as her residuary devisees and succeeded to Gertrude Farnham's rights in the Premises.

5. Gertrude F. Howson and Elizabeth R. Farnham died in 1986, and Ruth R. Farnham died in 1988. Hubert F. Howson and John A. Howson succeeded, as joint devisees with right of survivorship, to the interests of each of Gertrude F. Howson, Elizabeth R. Farnham and Ruth R. Farnham in the Premises and have been substituted as parties plaintiff for Ruth R. Farnham. References herein to "plaintiffs" include their predecessors in interest.

6. The Church is a religious corporation incorporated in Massachusetts on July 3 , 1903 as Crombie Street Congregational Church under the laws of the Commonwealth. It is also sometimes known as Crombie Street Congregational Church of Salem.

7. In 1978 Reverend Charles Navle became the Minister of the Church and has held that position to the present. In 1978 membership had dwindled to approximately 10-12 active members. Attending members now number approximately 24. After Reverend Navle became its Minister, the Church began renting out space in the Premises, part of which was then unoccupied. When Reverend Navle took over as Minister in 1978, the more traditional church functions of the Church had diminished, and he redirected the Church's activities to include what the Church refers to as "Mission" activities - giving aid to the homeless, poor and hungry. In particular, a shelter for homeless people is provided in the church building at 7 Crombie Street, next door to the Premises. Over the years there has been collaboration between the Mission conducted by the Church at 7 Crombie Street and the two agencies (described hereinafter) which rented part of the Premises.

8. Since April 1978 the Church has rented portions of the Premises (up to all but one room) to others continuously and has been using the Premises continuously as an income producing property. In the Church's 1985 budget the projected rental income from the Premises was $11,700, the largest single income item in the budget. With the exception of one room in the Premises occasionally used by the Church, the Church has granted the persons who rented the Premises exclusive use of the Premises for their own purposes.

9. Except for one first floor room and an apartment, the Premises are rented to H.A.W.C. ("Help for Abused Women and their Children") which is a charitable organization caring for abused women and children. The apartment in the Premises was for approximately eighteen months after 1978 rented to a social welfare organization known as Heritage Council For Children, a publicly funded agency addressing the interests of children. The Heritage Council For Children and H.A.W.C. were and are funded by state grants and charitable contributions and not controlled by the Church. Each has its own governing body.

10. In 1984 or 1985 the apartment in the Premises became rented to a person (Gordon Cole) who was studying for the ministry, and his family. Mr. Cole was succeeded in the apartment by Ian Lynch and his family, who continue to reside in the apartment. Both Messrs. Cole and Lynch paid rent. Messrs. Cole and Lynch have been known variously as assistant ministers of the Church or assistants to the minister, were on the Church's payroll and have taken some part in traditional church activities but more prominently in the activities of the Mission conducted by the Church in the Church building at 7 Crombie Street. Neither is ordained.

11. One first floor room on the Premises, sometimes identified as the "parlor", has been used continuously for church related purposes, such as keeping church records, holding church council and other meetings and counselling by the Church's minister. One of the Church's two telephones is at 9 Crombie Street and the other at 7 Crombie Street. Mail is delivered at both addresses.

12. Beginning in 1978 and continuously thereafter through at least the end of May 1985, the Church ceased using the Premises as a parsonage for the Minister of the Church. Reverend Navle has resided at his own home in Marblehead since becoming Minister of the Church and still does.

13. At all pertinent times since April 2, 1941 the Church has used the Premises, or at least one room thereof, for "religious purposes" in accordance with the 1941 Deed. In addition, at all pertinent times since April 2, 1941 and at least until 1978, the Church has used the Premises for "Parish House purposes" in accordance with the 1941 Deed.

14. Gertrude Farnham executed and recorded at Book 4703, Page 507 a document (Exhibit No. 16) dated September 9, 1960 entitled "Statement of Reverter Interest". This document identified the 1941 Deed, described the Premises by courses and distances and recited the provisions from the 1941 Deed quoted above.

15. Elizabeth R. Farnham, Ruth R. Farnham and Gertrude F. Howson executed and recorded at Book 7919, Page 264 a document (Exhibit No. 28) dated September 16, 1985 entitled "Statement of Reverter Interest". This document identified the 1941 Deed, described the Premises by courses and distances and recited the provisions from the 1941 Deed quoted above.

16. Elizabeth R. Farnham, Ruth R. Farnham and Gertrude F. Howson executed and recorded at Book 7919, Page 267 a document (Exhibit No. 27) dated September 6, 1985 entitled "Entry" which identified the Premises and recited that they had entered the Premises pursuant to G.L. c. 184, §19 for breach of the conditions of the 1941 Deed. The same persons executed and recorded at Book 7942, Page 86 an undated document (Exhibit No. 26) entitled "Certificate of Entry" similarly reciting entry on the Premises.

17. The language quoted above from the 1941 Deed has two parts. The first part is a covenant that the Premises will be used "as a Parsonage for the Minister of said church and as a Parish House." The balance provides for the possibility, in four contingencies, that the Premises will return to Mrs. Farnham or her heirs. One contingency is the Church failing to use the adjoining property (7 Crombie Street) as a church. The parties have stipulated that that has not happened.

18. As to the Premises themselves, there are three contingencies: "if said premises herein described shall ever cease to be used by said church as a Parsonage or Parish House or for other religious purposes."

19. The parties have stipulated that the Premises, or at least one room thereof, have at all times since 1941 been used "for other religious purposes" within the meaning of the 1941 Deed.

20. The parties also stipulate that beginning in 1978 and continuously thereafter through at least the end of May 1985, the Church ceased using the Premises as a Parsonage for the Minister of the Church. They stipulate, finally, that from 1941 until at least 1978 the Premises were used "for Parish House purposes in accordance with the 1941 Deed". They differ on whether they were used for Parish House purposes after 1978.

21. In view of these stipulations, which I find supported by the testimony, we are left with two of the four contingencies, "Parsonage" and "Parish House". Plaintiffs take the position that if any one contingency is activated, there is a reversion or right of entry and that the dispute as to "Parish House" is therefore irrelevant.

22. The interpretation urged by plaintiffs is strained. Among other things, it implies, logically, that Mrs. Farnham intended that the Premises had to be used both as a Parsonage and a Parish House. Plaintiffs point to the "and" in the covenant part of the quoted language as sustaining such an intent. However, it is by no means clear that the grantor would insist on a reversion were she confronted with the possibility that the Premises would cease being used as a Parsonage but continue being used as a Parish House, or vice-versa.

23. Given ambiguity, resort may be had to extrinsic evidence as an aid to interpretation, Ryan v. Stavros, 348 Mass. 251 , 259-260 (1964). There was a considerable amount of evidence introduced by plaintiffs aimed at showing Mrs. Farnham's intent. Much, but not all, of it was introduced over defendant's objections based on the Parole Evidence Rule but, as stated above, in the presence of ambiguity, the evidence was admissible. It showed that Mrs. Farnham had a long-term and close relationship to the Church, made substantial contributions to the Church and (as to two letters) expected that the Premises would be used as a Parsonage for the Church's Minister and Parish House.

24. One letter (Exhibit No. 3) is from Mrs. Farnham dated February 10, 1941 to the then Minister of the Church. After reciting that the suggestion of a parsonage use had been made for the Premises, Mrs. Farnham goes on to state:

We are ready to make a gift of this property to the church under certain conditions:

1. That the property 9 Crombie, be used as a residence for the minister of the church. That if at any time the church dissolves or ceases to exist the property revert to the lawful heirs of Mrs. Gertrude Farnham.

2. That the garden be kept open, not built upon at least during the remainder of Mrs. Farnham's life.

3. That the little house 13 Crombie, be used as a residence (for instance foe [sic] janitor) or rented by church as a residence or removed or torn down for more open property but not to be built upon with a business or tenement building.

The second letter (Exhibit No. 14) is dated November 20, 1954, responding to a letter of thanks from the Church. Mrs. Farnham writes, in relevant part:

Your letter of appreciation in behalf of the members of the church and parish is very reassuring. Our interest is truly sincere and continuous in hoping that my family home may be maintained as a residence for the minister's family and for parish activities.

25. The 1941 Deed is more plausibly interpreted other than as suggested by plaintiffs. A better interpretation is that Mrs. Farnham intended that the Premises be used for a Parsonage and/or a Parish House and that the Premises would return to her only if neither of those uses were in place.

26. That approach raises the problem of the third contingency "for other religious purposes". If those words are not surplusage, does that not mean that as long as the Premises are used for "other religious purposes", the Premises stay with the Church, even if there is no Parsonage and Parish House use? I do not believe the problem need or should be resolved on that basis.

27. I conclude that from 1978 until 1985 when plaintiffs took action to assert their rights, the Premises (as stipulated) were not being used as a Parsonage for the Minister of the Church, that one room was used for Parish House purposes and that (that room aside) none of the Premises were used by the Church "for other religious purposes". The one room in question is a first floor room, sometimes identified as the "parlour", in which church records are kept and which serves as a meeting room and church office. The rest of the Premises were in part rented to independent social welfare agencies and the balance was vacant or, commencing in 1984 or 1985, rented as an apartment. Only one room of the Premises was used for the purposes Mrs. Farnham had in mind. Starting in 1984 or 1985, the apartment in the Premises was rented by persons having some connection with the Church, as described in paragraph 10 above, but the residence of only one of them, Mr. Cole, occurred during the critical time here (1978-1985); his connection with the Church was tenuous and in any event, he occupied only part of the Premises. The activities of the social welfare agencies renting parts of the Premises are laudable and I agree with Witness Bode that they were consistent with the Church's overall programs of human service, but those activities were not, within the meaning of the 1941 Deed, use (a) by the Church or (b) either for religious purposes or as a Parish House. Admiration for these activities (and for the Church's Mission at 7 Crombie Street) should not lead to a disposition not in accordance with Mrs. Farnham's intent. The uses of the Premises from 1978-1985 would cause the Premises to revert to Mrs. Farnham or her heirs, or afford a right of entry, under the language and intent of the 1941 Deed, in the absence of statutory or other impediments.

28. What interest did Mrs. Farnham retain for herself and her heirs under the 1941 Deed? The real choices are that the Church had a fee simple determinable, in which event the retained interest was a possibility of reverter, or that the Church had a fee simple subject to a condition subsequent, in which event the retained interest was a right of entry for condition broken.

29. I conclude that the latter is the case. The language does not clearly indicate one interest or the other. For instance language such as "for as long as" (characteristic of a fee simple determinable) or such as "on condition that" (characteristic of a fee simple subject to a condition subsequent) is missing. "Revert" is used, which might seem to point to a possibility of reverter, but the cases and commentary are to the contrary. Dyer v. Siano, 298 Mass. 537 , 540, and cases cited. Note also comment m. to Restatement of Property, Section 45. "In cases where it is difficult to determine whether a determinable fee or a fee simple on condition subsequent has been created, the preference is for the latter construction. . ." American Law of Property, Section 4.7.

30. Defendant (Trial Brief pp. 3-6) agrees that Mrs. Farnham did not establish a fee simple determinable and then suggests that she established a fee simple on a condition subsequent but neglected to include a right of entry, so that the result is some sort of hybrid, unknown to the common law, and, more significantly, violative of the Rule Against Perpetuities. Defendant cites no case support for this approach. It involves an undesirable return to formalism, and I reject it. If there is a fee simple subject to a condition subsequent, as I hold and defendant agrees, the right of entry is merely the correlative means of accomplishing the return of the property when the condition is broken. This is recognized in Dyer v. Siano, 298 Mass. 537 (1937), cited by defendant.

31. Defendant also suggests that any reversion or right of entry in Mrs. Farnham's residuary legatees involves a contingent interest which violates the Rule Against Perpetuities, citing Brown v. Independent Baptist Church of Woburn, 325 Mass. 645 , 648 (1950). Brown involves a devise of land to the Independent Baptist Church of Woburn so long as it shall continue as a church, with a reverter to ten named legatees; the will then names the same ten persons as the residuary legatees. The Court holds that the gift over to ten named legatees is invalid but that the reverter could validly pass to the residuary legatees (even though they were the same ten persons). The reverter passed by inheritance, through the residuary clause, not by purchase. Brown, therefore, supports plaintiffs.

32. Applying Brown here involves an additional consideration. As Brown states, a right of entry (as opposed to a reverter) is not assignable inter vivos (page 647, citing Dyer v. Siano). In fact, the problem is deeper. Dyer states, at page 539:

The unexercised possibility or right of reentry for condition broken could pass from the original grantors by descent or devise. (citations omitted) But it could not pass from the original grantors to a third person by a conveyance inter vivos. An attempt so to pass it, either before or after breach, would merely discharge the condition, and make unconditional the title of the original grantee. (citations omitted) If the provision in question amounted to a condition, the title of the defendant has been freed from it by the very conveyances that purported to transfer to the plaintiffs' deviser the rights of the original grantors, and the plaintiffs have acquired nothing.

33. The 1941 Deed is an inter vivos instrument. Does that mean that the condition in it was discharged and the Church's title is unconditional? I rule that is not the case.

34. Note first that the three initial plaintiffs were (as stipulated) Mrs. Farnham's residuary devisees. Thus, if she had said nothing about them in the 1941 Deed, they would have inherited her right of entry in any event. Does the fact that Mrs. Farnham, in the 1941 Deed, refers to her residuary legatees, derail plaintiffs? Odd things happen in this area of the law, but not that odd.

35. The difference in treatment between rights of entry and possibilities of reverter in the context of inter-vivos transfer (possibilities of reverter may be assigned) is in this country generally a Massachusetts anomaly. Its roots are in English common law aversion to barratry - a fear that unsavory types would buy up rights of entry and harass landowners. That hardly seems a realistic fear today, and certainly not in the context of this action. There is no modern day reason to treat the two interests differently and therefore I will not do so unless this situation is on all fours with the old cases. In fact, this situation is different. In Dyer and the cases it cites, there is a subsequent deed which purports to transfer the right of entry. Here, if there is a problem, it arises in the very instrument which sets up the condition. That, coupled with the fact that the persons acquiring the right of entry are (as stated) the residuary legatees is sufficient grounds to leave plaintiffs where Mrs. Farnham clearly intended they be. Reaching this result is also consistent with the legislature's current expressed decision to treat all these interests the same with respect to assignability -see second sentence of G.L. c. 184A, §3 quoted below - reference to interest in third parties.

36. Defendant suggests that plaintiffs' interest is from a gift over, void prior to the enactment in 1954 of G.L. c. 184A (see below). But the rule defendant refers to (pre-1955) is a prohibition against the creation of executory interests - the creation of interests in persons other than the grantor or the grantor's heirs. As stated, plaintiffs are Mrs. Farnham's heirs.

37. What of the possibility that the language creates a trust? If it did, one could suggest an application cy pres, with perhaps the Church retaining the Premises. That approach flies directly in the face of the 1941 Deed, which, whatever its other ambiguities, has no trust language, clearly calls for the return of the Premises and does not show a general charitable intent. "The creation of a possibility of reverter is inconsistent with an intent to create a public trust in perpetuity." Opinion of the Justices, 369 Mass. 979 (1975).

38. Are there statutory or other impediments to effectuating the right of entry, as defendant suggests? G.L. c. 184, §23 generally restricts to thirty years conditions or restrictions unlimited as to time, as in the case of those in the 1941 Deed. There is, however, an exception for "gifts for religious purposes" and the 1941 Deed comes within that exception.

39. G.L. c. 184, §§26 through 30 regulate restrictions which run with the land. Section 28 deals with restrictions imposed before January 1, 1962. No such restriction is enforceable after fifty years from its imposition unless a notice of restriction is recorded before the expiration of such fifty years or before January 1, 1964, whichever is later. "Imposition" in this case would be April 9, 1941, at the latest, the recording date of the 1941 Deed. Fifty years has run from that date, and no notice of restriction has been recorded, but plaintiffs' action of enforcement here commenced on September 18, 1987.

40. In any event, the provisions of the 1941 Deed are not restrictions, and c. 184, §§26 through 38 are not applicable. The first, covenant, portion of the 1941 Deed would be a restriction, were it to stand alone. There is a judicial preference for casting provisions of this sort as restrictions and not as conditions, but the language of the 1941 Deed in its entirety does not admit of that. Defendant has also raised the objection that a restriction in gross is not enforceable. The benefit of the 1941 Deed is in gross, but as the 1941 Deed is not a restriction, defendant's contention on this point does not avail it.

41. Prior to the enactment of G.L. c. 184A, a right of entry in the grantor or the grantor's heirs was valid notwithstanding the Rule Against Perpetuities. Oak's Oil Service, Inc. v. Massachusetts Bay Transportation Authority, 15 Mass. App. Ct. 593 (1983) and cases cited therein.

42. Sections 3 and 5 of c. 184A, as enacted by Chapter 641 of the Acts of 1954, provided:

Section 3. A fee simple determinable in land or a fee simple in land subject to a right of entry for condition broken shall become a fee simple absolute if the specified contingency does not occur within thirty years from the date when such fee simple determinable or such fee simple subject to a right of entry becomes possessory. If such contingency occurs within said thirty years the succeeding interest, which may be an interest in a person other than the person creating the interest or his heirs, shall become possessory or the right of entry exercisable notwithstanding the rule against perpetuities. But if a fee simple determinable in land or a fee simple in land subject to a right of entry for condition broken is so limited that the specified contingency must occur, if at all, within the period of the rule against perpetuities, said interests shall take effect as limited. This section shall not apply where both such fee simple determinable and such succeeding interest, or both such fee simple and such right of entry are for public, charitable or religious purposes; nor shall it apply to a deed, gift or grant of the commonwealth or any political subdivision thereof.

Section 5. Except as provided in the first sentence of section three, this chapter shall not be construed to invalidate or modify the terms of any limitation which would have been valid prior to January first, nineteen hundred and fifty-five.

43. Section 2 of Chapter 641 stated the effective date of Chapter 184A, as follows:

SECTION 2. This act shall take effect on January first, nineteen hundred and fifty-five, and shall apply only to inter vivos instruments taking effect after that date, to wills where the testator dies after January first, nineteen hundred and fifty-five, and to appointments made after the effective date of this act, including appointments by inter vivos instruments or wills under powers created before said effective date.

44. Chapter 448 of the Acts of 1961 (effective ninety days from May 10, 1961, without distinction as to instruments given before that date) amended Chapter 184A in two particulars:

SECTION 2. Section 3 of chapter 184A of the General Laws, as appearing in section 1 of chapter 641 of the acts of 1954, is hereby amended by striking out the third and fourth sentences.

SECTION 4. Notwithstanding the provisions of section three of chapter one hundred and eighty-four A of the General Laws, as amended by section two of this act, any person having a right of entry or possibility of reverter which would have been valid under the provisions of said section three of said chapter one hundred and eighty-four A, as in effect prior to the effective date of this act, may bring a proceeding based on such right or possibility; provided, that a statement with respect to such right or possibility sufficient to satisfy the provisions of section thirty-one A of chapter two hundred and sixty of the General Laws is recorded or registered, as therein provided, prior to January first, nineteen hundred and sixty-four.

45. St. 1989, c. 668, effective June 30, 1990, struck out c. 184A in its entirety and substituted a new version thereof. Most of new c. 184A deals with the Rule Against Perpetuities, but sections 7 and 9 repeat verbatim (except for section numbers), old sections 3 (with the third and fourth sentences deleted) and five.

46. Chapter 184A is complemented by G.L. c. 260, §31A, which was inserted in the General Laws by St. 1958, c. 258 and has since 1975 provided in part that:

No proceeding based upon any right of entry for condition broken or possibility of reverter, to which a fee simple or fee simple determinable in land is subject, created before the second day of January, nineteen hundred and fifty-five, shall be maintained in any court after the first day of January, nineteen hundred and sixty-four, unless on or before the first day of January, nineteen hundred and sixty-four, (a) the condition has been broken or the reverter has occurred, and a person or persons having the right of entry or reverter shall have taken possession of the land, and in case of entry made after January first, nineteen hundred and fifty­ seven, shall have filed a certificate of entry pursuant to section nineteen of chapter one hundred and eighty­four, or (b) a person or persons having the right of entry, or who would have it if the condition were broken, or would be entitled if the reverter occurred, shall . . . have filed in the registry of deeds, . . . for the district in which the land is situated, a statement in writing, duly sworn to, describing the land and the nature of the right and the deed or other instrument creating it, and where it may be found if recorded . . . and . . . naming the person or persons appearing of record to own the fee subject to such right or possibility, or shown by the records of the tax assessors at the last prior assessment date to be the owner or owners thereof.

Such statement shall be received and recorded or registered upon payment of the fee required by law, and shall be indexed in the grantor index under the person or persons so named, and in case of registered land, noted on the certificate of title. The register and assistant recorder shall also keep a separate list of such statements.

47. The final relevant statute is G.L. c. 184, §19, the relevant part of the first paragraph of which is as follows:

If real property has been conveyed by deed on a condition therein expressed, which is not a mortgage and if proceedings based upon right of entry for breach of such conditions have not been barred by section,thirty­one A of chapter two hundred and sixty, the grantor, his heirs and devisees upon breach of such condition may enter on the granted premises in order to revest the title; and a certificate of such entry, made and sworn to before any officer duly qualified to administer oaths by two competent witnesses and recorded within thirty days after such entry in the registry of deeds for the county or district where the land lies, or a duly certified copy of the record of such certificate, shall, after the expiration of three years from such entry, be prima facie evidence of such breach and entry . . . .

With the exception of the language concerning c. 260, §31A, which was added in 1956, that paragraph has been in effect since well before the execution of the 1941 Deed.

48. Once G.L. c. 260, §31A was enacted in 1958, it and G.L. c. 184A, §3 formed a package with respect to rights of entry created prior to January 2, 1955 (as in this action). The 30 year limit on rights of entry contained in c. 184A did not apply, because of the express language of Section 2 of Chapter 641 of the Acts of 1954, quoted above. On the other hand, there could be no enforcement of the right of entry (assuming, as in this case, the condition had not been broken prior to January 2, 1964) unless prior to January 2, 1964 the person having the right of entry filed a statement (a "Section 31A Statement") in the applicable registry of deeds pursuant to G.L. c. 260, §31A.

49. Defendant suggests (as does Park, Massachusetts Practice, Real Estate Law, Section 122) that the exception at the beginning of Section 5 of G.L. c. 184A, quoted above, by implication means that Section 3 applies to pre-1955 rights of entry and possibilities of reverter. However, that reading is flatly contrary to Section 2 of the enabling legislation, quoted at paragraph 43 above. Section 5 is consistent with Section 2 of the enabling legislation if Section 5 is read as referring to kinds of interests - that is Section 5 is saying that the kinds of interests that were valid before 1955 aren't meant to be invalidated; that would be incorrect as to rights of entry and possibilities of reverter, (which, as to post-1955 rights of entry and reverters, are modified by Section 3) and therefore the exception had to be included. In any event, if there is a conflict between Section 5 and Section 2 of the enabling legislation, the latter should prevail, since it governs Chapter 184A in its entirety.

50. The conclusion that G.L. c. 184A, Section 3 does not apply to pre-1955 deeds requires consideration of Harrison v. Marcus, 396 Mass. 424 (1985). Harrison involved a 1936 deed of property in South Yarmouth to three individuals in trust for the benefit of a named Boy Scout Troop "so long as said Troop 59 shall continue its organization", with further provision that if that condition should be violated, the trust should end and the trustees were to transfer the property to the grantor or his heirs or the assigns of either. Troop 59 disbanded and the trustees and the Cape Cod and Islands Council of the Boy Scouts (the "Council") brought a quiet title action in this Court.

51. Justice Sullivan here held that the conveyance created a charitable trust, the purpose of which had failed, and ordered the trustees to convey the property to the heirs of the grantor. The Appeals Court reversed by Summary Disposition and ordered the property conveyed to the Council free of trust or any possibility of reverter. The Supreme Judicial Court granted further appellate review and affirmed Justice Sullivan's decision.

52. Plaintiffs in Harrison argued that the trustees had a fee simple determinable which was of no further effect, because of the operation of G.L. c. 184A, §3 and G.L. c. 260, §31A. The Supreme Judicial Court disagreed, holding that the trustees held in fee simple absolute in trust and ordered a conveyance to the grantor's heirs. In its discussion the Court at several places appears to state that G.L. c. 184, §3 would be applicable if the trustees' interest had been a determinable fee.

53. Although the deed in the case was a 1936 instrument, I do not consider Harrison to be a determination that Section 3 applies to pre-1955 possibilities of reverter and pre-1955 rights of entry for condition broken. The Court's language is dicta; as the Court states: "Our construction of this conveyance as a fee simple absolute takes it outside the scope of §3" (p. 430). There is no reference in the decision to the question of Section 3's applicability to pre-1955 deeds. Neither Section 2 of chapter 641 of the Acts of 1954 (quoted above) nor any interpretive material is mentioned. Further, examination of the briefs in the case reveals that the parties argued the case on other grounds than Section 3's applicability to pre-1955 instruments.

54. In an earlier case, Brookline v. Carey, 355 Mass. 424 (1969), in which the question was the application of Section 31A, the Supreme Judicial Court stated, at pp. 426-427:

The Legislature previously had enacted St. 1954, c. 641, § 1, inserting in the General Laws c. 184A, § 3 of which (read with St. 1954, c. 641, § 2) limited the duration of possibilities of reverter or rights of entry created after January 1, 1955, with certain exceptions, to a maximum of thirty years. Section 31A, which was added by St. 1956, c. 258, § 2, presumably is related legislation which applies to such future interests created on or before January 2, 1955 (emphasis in the original).

55. Contemporary commentary was to the same effect (1 Annual Survey of Massachusetts Law [1954]):

The new statute (refering to Section 3) takes effect on January 1, 1955 and is prospective in operation. Additional legislation is necessary to deal with the problem of presently existing possibilities of reverter and rights of entry created under ancient deeds and wills. A draft of a statute directed toward this problem will probably be introduced in the 1955 legislative session. (Actually, Section 31A was enacted in 1956.)

56. The state of the law described above remained the same until June 30, 1990, the effective date of St. 1989, c. 668. In particular, St. 1961, c. 448 did not affect matters relating to this action; it had to do only with reverters and rights of entry which needed the protection of the third and fourth sentences of c. 184A, section 3 (not at issue in this action).

57. St. 1989, c. 668 reenacted c.184A, section 3, as section 7 of the new Chapter 184A. However, there was no special treatment given to instruments taking effect prior to its effective date, as there had been when c. 184A was originally enacted in 1954. Arguably, therefore, new section 7 works retroactively (a matter I do not decide as I do not have to) and, if applicable, would bar plaintiffs' claim in this action, since the fee simple in this action became possessory on the delivery of the 1941 Deed in 1941 and the condition subsequent was broken (by non-use as a Parsonage or a Parish House) more than 30 years thereafter.

58. However, plaintiffs filed certificates of entry and brought this action to enforce their rights, in September 1985 and have prosecuted their action with acceptable diligence and therefore St. 1989, c. 668 does not reach back to bar plaintiffs. Accordingly, the inquiry shifts to whether the Section 31A Statement recorded by plaintiffs on September 9, 1960 ("Plaintiffs' Statement") satisfies G.L. c. 260, §31A. I find and rule that it does.

59. The Church objects that Plaintiffs' Statement does not identify "the nature of the right". While the words "fee simple subject to a condition subsequent" and "right of entry" are not used, Plaintiffs' Statement identifies the interest as a "reverter interest" and quotes verbatim the controlling language. That is enough.

60. The Church's next objection, that Plaintiffs' Statement is not "duly sworn to", is more troubling. The instrument is acknowledged in the usual fashion before a notary public in the State of New York: "Then personally appeared the above named Gertrude Farnham and acknowledges the foregoing instrument to be her free act and deed . . ." There is no express statement that the instrument is sworn to or that it is made under the pains and penalties of perjury.

61. The purpose of requiring a Section 31A Statement is to alert the dutiful conveyancer that there is a right of entry outstanding. The evil guarded against is ancient outstanding rights of entry, most particularly those so old as to be before the reach of the usual title search, now customarily 50 years. That legislative intent is derivable in particular by the requirement that a separate list of Section 3lA Statements be maintained at the Registry, to keep the Section 31A Statements in view after a time when a title examiner would not be running the name of the then owner of the burdened land in the grantor index. That is the theory of the statute, at least. The statute has a notice function, therefore, and that is fulfilled by the Plaintiffs' Statement. There was substantial compliance with the statute.

62. In reaching that conclusion, I am mindful of the following from G.L. c 4:

§ 6. Rules for construction of statutes

In construing statutes the following rules shall be observed, unless their observance would involve a construction inconsistent with the manifest intent of the law-making body or repugnant to the context of the same statute: . . .

Oath or acknowledgment, before whom taken; dispensed with, when. Sixth, Wherever any writing is required to be sworn to or acknowledged, such oath or acknowledgment shall be taken before a justice of the peace or notary public, or such oath may be dispensed with if the writing required to be sworn to contains or is verified by a written declaration under the provisions of section one A of chapter two hundred and sixty-eight.

§ 7. Definitions of statutory terms; statutory construction

In construing statutes the following words shall have the meanings herein given, unless a contrary intention clearly appears: . . .

"Swear". Thirty-third, "Swear" shall include affirm in cases in which an affirmation may be substituted for an oath. . . .

Section 1A of c. 268 permits substitution of a declaration that a document is made under the penalties of perjury for the making of an oath.

63. These statutory provisions do not lead to a result that Plaintiffs' Statement is insufficient. Plaintiffs' Statement is one of a no doubt tiny number of Section 31A Statements that have found their way to the records. In this arcane area of the law, the substance of what the legislature was looking for - alerting the world to the existence of the outstanding right of entry - has been met.

64. Defendant has attempted to raise the point that a former Minister of the Church, Reverend Campbell, did not live in the Premises for about three years in the 1950's. Defendant suggests that title accordingly reverted to plaintiffs and that defendants have, since then, acquired title by adverse possession or that, alternatively, plaintiffs are barred from enforcing their rights by virtue of clause (a) of G.L. c. 260, §31A. Defendant's attempt in this regard is contrary to the Stipulations of the parties, by which the critical events in this history were limited to matters occurring with Reverend Navle's arrival in 1978 and is only briefly touched upon in the evidence. In any event, I find that no reverter or breach of condition occurred as a result of Reverend Campbell's ministry and residence.

65. The Section 31A Statement filed by the plaintiffs in 1985 (par. 15 above) is of no legal significance. Any such statement had to be filed before January 2, 1964, to comply with Section 31A.

66. Defendant has pointed to various shortcomings in the Chapter 184, §19 Certificates filed by plaintiffs in 1985 (par. 16 above). I need not deal with those because plaintiffs' commencement of this action acts as an effective entry, Dyer v. Siano, p.539. Defendant contends that plaintiffs did not comply with G.L. c. 260, §28 (continuance of possession for one year) but that statute has no relevance to the issues in this action.

67. To summarize: the 1941 Deed created in the Church a fee simple subject to a condition subsequent; the use of the Premises by the Church from 1978 to 1985 constituted a breach of the condition; plaintiffs are not barred by statutory or other impediments from asserting their right of entry, took the necessary step under G.L. c. 260, §31A to preserve that right and exercised the right by commencing this action September 18, 1985. Plaintiffs now hold the Premises free of any interest in defendant. The Court will retain jurisdiction to hear, if requested, matters relating to damages which may be owing to plaintiffs.

Judgement accordingly.