mon recoveries. Westminster upon pain that the immediate lord of the fee, or, on his default for one year, the lords paramount, and in default of all of them, the king, might enter thereon as a forfeiture. This seemed to be a sufficient security against all alien- Origin of comations in mortmain: but as these statutes extended only to gifts and conveyances between the parties, the religious houses now began to set up a fictitious title to the land, which it was intended they should have, and to bring an *action to recover it against the tenant; who, by fraud and [ *271 ] collusion, made no defence; and thereby judgment was given for the religious house, which then recovered the land by sentence of law upon a supposed prior title. And thus they had the honour of inventing those fictitious adjudications of right, which are since become the great assurance of the kingdom, under the name of common recoveries (7). But The statute of upon this the statute of Westminster the second, 13 Edw. I. 2nd. c. 32, enacted, that in such cases a jury shall try the true right of the demandants or plaintiffs to the land, and if the religious house or corporation be found to have it, they shall still recover seisin; otherwise it shall be forfeited to the immediate lord of the fee, or else to the next lord, and finally to the king, upon the immediate or other lord's default. And the like provision was made by the succeeding chapter (k), in case the tenants set up crosses upon their lands (the badges of knights templars and hospitallers) in order to protect them from the feodal demands of their lords, by virtue of the privileges of those religious and military orders. So careful indeed was this provident prince to prevent any future evasions, that when the statute of quia emptores, 18 Edw. I., abolished all sub-infeudations, and gave liberty for all men to alienate their lands to be holden of their next immediate lord (1), a proviso was inserted (m) that this should not extend to authorise any kind of alienation in mortmain. And when afterwards the method of obtaining the king's licence by writ of ad quod damnum was marked out (8), by the statute 27 Edw. I. st. 2, it was (k) Cap. 33. (7) 2 Inst. 501. (7) See post, chapter 21, sect. 4, p. 357, and the appendix to this volume, No. 5. Since this note was first published, (m) Cap. 3. common recoveries have been abolish- (8) It is, perhaps, not quite accu New method of farther provided by statute 34 Edw. I. st. 3, that no such licence should be effectual, without the consent of the mesne or intermediate lords. Yet still it was found difficult to set bounds to ecclesiastical ingenuity; for when they were driven out of all their former holds, they devised a new method of conveyance, by religious houses. which the lands were granted, not to themselves directly, clergy fonomi nal feoffees to the use of the but to nominal feoffees to the use of the religious houses; thus distinguishing between the possession and the use, and [*272 ] receiving *the actual profits, while the seisin of the lands But the statute made uses sub 15 Ric. II. c. 5, ject to the statutes of mortmain. remained in the nominal feoffee; who was held by the courts of equity (then under the direction of the clergy) to be bound in conscience to account to his cestuy que use for the rents and emoluments of the estate. And it is to these inventions that our practisers are indebted for the introduction of uses and trusts, the foundation of modern conveyancing. But, unfortunately for the inventors themselves, they did not long enjoy the advantage of their new device; for the statute 15 Ric. II. c. 5, enacts, that the lands which had been so purchased to uses should be amortised by licence from the crown, or else be sold to private persons; and that, for the future, uses shall be subject to the statutes of mortmain, and forfeitable like the lands themselves. And whereas the statutes had been eluded by purchasing large tracts of land, adjoining to churches, and consecrating them by the name of church-yards, such subtile imagination is also declared to be within the compass of the statutes of mortmain. And civil or lay corporations, as well as ecclesiastical, are also declared to be within the mischief, and of course within the remedy provided by those salutary laws. And, lastly, as during the times of popery lands were frequently given to superstitious uses, though not to any corporate bodies; or were made liable in rate to say, that the statute 27 Edw. I. where the writ in question is spoken of as an usual one: though the statute just named enacted, that such writ should not, thenceforward, be granted, unless upon petition presented in full parliament. This last provision, however, is abrogated by the act of 7 & 8 Will. III. c. 3, stated post, in page 273. the hands of heirs and devisees to the charge of obits, chaunteries, and the like, which were equally pernicious in a well-governed state as actual alienations in mortmain; therefore, at the dawn of the reformation, the statute 23 Hen. VIII. c. 10, declares, that all future grants of lands for any of the purposes aforesaid, if granted for any longer term than twenty years, shall be void. still grant li or take lands, main. But, during all this time, it was in the power of the The Crown may crown, by granting a licence of mortmain, to remit the for- cences to aliene feiture, so far as related to its own rights; and to enable &c. in mortany spiritual or other corporation to purchase and hold any lands or tenements in perpetuity; which prerogative is declared and confirmed by the statute 18 Edw. III. st. 3, c. 3. But, as doubts were conceived at the time of the revolution how far such licence was valid (n), since the king had no *power to dispense with the statutes of mort- [273 ] main by a clause of non obstante (o), which was the usual course, though it seems to have been unnecessary (p): and as, by the gradual declension of mesne signiories through the long operation of the statute of quia emptores, the rights of intermediate lords were reduced to a very small compass; it was therefore provided by the statute 7 & 8 W. III. c. 37, that the crown for the future at its own discretion may grant licences to aliene or take in mortmain, of whomsoever the tenements may be holden (9). By 1 & 2 P. & tutes of mortpended for M. c. 8, the sta main were sus twenty years. After the dissolution of monasteries under Henry VIII. though the policy of the next popish successor affected to grant a security to the possessors of abbey lands, yet, in order to regain so much of them as either the zeal or timidity of their owners might induce them to part with, the statutes of mortmain were suspended for twenty years by the statute 1 & 2 P. & M. c. 8, and during that time, any lands or tenements were allowed to be granted to any spiritual corporation without any licence whatsoever. And, Enactments for long afterwards, for a much better purpose, the augmenta- tion of poor tion of poor livings, it was enacted by the statute 17 Car. II. c. 3, that appropriators may annex the great tithes to the vicarages; and that all benefices under 100l. per annum (n) 2 Hawk. P. C. 391. (0) Stat. 1 W. & M. st. 2, c. 2. (p) Co. Litt. 99. (9) See the last note. the augmenta livings. Queen Anne's bounty. may be augmented by the purchase of lands without licence of mortmain in either case; and the like provision hath been since made, in favour of the governors of Queen Anne's bounty (q). It hath also been held (r), that the statute 23 Hen. VIII. before mentioned did not extend to any thing but superstitious uses; and that therefore a man may give lands for the maintenance of a school, an hospital, or any Charitable uses. other charitable uses. But as it was apprehended, from recent experience, that persons on their death-beds might make large and improvident dispositions even for these good purposes, and defeat the political ends of the statutes of mortmain; it is therefore enacted by the statute 9 Geo. II. c. 36, that no lands or tenements, or money to be laid out thereon, shall be given for or charged with any charitable uses whatsoever, unless by deed indented, executed in the presence of two witnesses, twelve calendar months before the death of the donor, and enrolled in the Court of Chancery within six months after its execution, (except stocks in the public funds, which may be transferred within six months previous to the donor's death,) and unless such gift be made to take effect immediately, and be without power of revocation: and that all other gifts shall be void (10). The two (q) Stat. 2 & 3 Ann. c. 11. (10) A bequest of money, to be em- (r) 1 Rep. 24. where the testator has used words of request, or recommendation, (not expressly leaving the matter to the discretion of his executors,) those words of request are held to be mandatory. (Taylor v. George, 2 Ves. & Bea. 378; Paul v. Compton, 8 Ves. 380; Parsons v. Baker, 18 Ves. 476.) And if they point to an appropriation of the legacy contrary to the policy of the law, the legacy must fail. (Grieves v. Case, 1 Ves. jun. 550.) In the Attorney General v. Davies, (9 Ves. 543,) it was justly termed an absurd distinction, to say that a testator shall not give land to a charity, yet that he may give money conditionally, in consideration of another's giving land for a charity. And it is now perfectly well settled, notwithstanding some earlier decisions of Lord Hard universities, their colleges, and the scholars upon the foundation of the colleges of Eton, Winchester, and Westmin wicke to the contrary, that if a testator give personal property "to erect and endow" a school, or hospital, it must be considered, unless it be otherwise declared in his will, that it was the testator's intention land should be acquired, as a necessary part of his purpose:(Chapman v. Brown, 6 Ves. 408; Attorney Generalv.Davies,9 Ves. 544;) but where the testator has expressly directed that no part of the money bequeathed shall be employed in the purchase of land, it being his expectation that other persons will, at their expense, purchase lands and buildings for the purposes intended, there the statute has been held not to apply. (Henshaw v. Atkinson, 3 Mad. 313.) So, where a testator's directions can be sufficiently answered by hiring land or buildings for the purposes of a charity, the bequest may be sustained: (Attorney General v. Parsons, 8 Ves. 191; Johnson v. Swan, 3 Mad. 467 :) but, it seems, such hiring must not be on lease, or it would be an acquisition, by the testator's direction, of such an interest in lands, tenements, or hereditaments, as the third section of the statute prohibits. (Blandford v. Thackerell, 2 Ves. jun. 241.) And where a testator has directed that his real and personal estate shall be employed by the trustees named in his will, in the purchase of land and the erection of a school-house thereon, and the subsequent endowment and support of the school so to be erected; the illegality of this gift cannot be cured by an offer, on the part of the trustees or others, to provide at their own expense the land required. (Attorney General v. Nash, 3 Brown, 588, 595.) Charitable legacies, secured by mortgages on lands, (Currie v. Pye, 17 Ves. 464; Attorney General v. Mey VOL. II. rick, 2 Ves. sen. 46,) or on turnpike tolls, (Corbyn v. French, 4 Ves. 380; Howse v. Chapman, 4 Ves. 545,) or by an assignment of poor rates, or county rates, (Finch v. Squire, 10 Ves. 44; The King v. Bates, 3 Price, 358,) are all void; as is a bequest of navigation shares to charitable uses; (Buckeridge v. Ingram, 2 Ves. jun. 663;) for in each of these cases it has been held, that the donation not only savours of the realty, but partakes of it; that a real interest arising out of the soil, (though not the soil itself,) is attempted to be given; and that this attempt, being in fraud of the statute, cannot be carried into effect. A bequest to a charity being void so far as it touches any interest in land, it follows, upon principle, and, after some fluctuation, (Attorney General v. Graves, Ambl. 158,) is now confirmed by repeated decisions, that where a testator has charged his real estate, in aid of his personal, with payment of all his legacies, there, if the personal estate be not sufficient for payment of the whole, charitable legacies must abate, and receive such average proportion only as the personal assets afford for the discharge of the whole pecuniary legacies. If a court of equity were to marshal the assets, and secure full payment of the charitable legacies, by throwing the other pecuniary legacies upon the testator's real estate, it would be enabling that to be done circuitously which cannot be done directly. (Attorney General v. Tyndall, 2 Eden, 210; Waller v. Childs, Ambl. 526; Foster v. Blagden, Ambl. 704; Ridges v. Morrison, 1 Cox, 181.) As the object of the statute of mortmain was wholly political, as it grew out of local circumstances, and was meant to have merely a local opera E E |