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religious or other whatsoever (4), should buy, or sell, or receive under pretence of a gift, or term of years, or any other title whatsoever, nor should, by any art or ingenuity, appro. priate tohimself, any lands or tenements in mortmain: 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 mon recoveries. 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 (5). But The statute of upon this the statute of Westminster the second, 13 Edw. I. Westminster 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
(k) Cap. 33.
(4) These words, according to ordi- last named act, guilds and fraternities, nary construction, seem sufficient to as well as mayors, bailiffs, and cominclude all corporations, sole, aggregate, mons of towns having a perpetual comecclesiastical, or temporal; and so Lord monalty, and others having offices perCoke understood them. (1 Inst. 2 b). petual, were not considered within the But, notwithstanding the extensive restrictions of mortmain. terms of the statute of Edw. I., it may (5) See post, chapter 21, sect. 4, p. be inferred from the statute of 15 Rich. 357, and the appendix to this volume, II. c. 5, that until the passing of the No. 5.
(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 authorize 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 (6), by the statute 27 Edw. I. st. 2, it was 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. New method of Yet still it was found difficult to set bounds to ecclesiasconveyance devised by the
tical ingenuity; for when they were driven out of all their clergy to nomi- former holds, they devised a new method of conveyance, by nal feoffees to the use of the which the lands were granted, not to themselves directly, religious houses. 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 re
mained 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
(6) It is, perhaps, not quite accurate in their times,") where the writ in to say, that the statute of 27 Edw. I. question is spoken of as an usual one: marked out the proceeding noticed in the though the statute just named enacted, text; for, it is therein mentioned as a that such writ should not, thenceforthing “accustomed.” And see the stat. ward, be granted, unless upon petition of 20 Edw. I., entitled statutum de brevi presented in full parliament. This last de inquisitionibus concedendis de terris provision, however, is abrogated by the ad manum morinam ponendis, (which is act of 7 & 8 Will. 3, c. 3, stated post, printed among the “statutes uncertain in page 273.
tutes of mort
and trusts, the foundation of modern conveyancing. But, But the statute
c. unfortunately for the inventors themselves, they did not long 15 Ric. II.C, 5, enjoy the advantage of their new device; for the statute 15 ject to the staRic. II. c. 5, enacts, that the lands which had been so pur- main. chased 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 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.
But, during all this time, it was in the power of the crown, The Crown may by granting a licence of mortmain, to remit the forfeiture, so still grant li far as related to its own rights; and to enable any spiritual or take lands,
, 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 dis- [ * 273 ] pense with the statutes of mortmain by a clause of non obstante (0), which was the usual course, though it seems to have been unnecessary(): and as, by the gradual declension
cences to aliene
&c. in mortmain.
(n) 2 Hawk. P. C. 391. (0) Stat. I W. & M. st. 2, c. 2.
(p) Co. Litt. 99.
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
By 1 & 2 P. &
, tutes of mort
tion of poor
After the dissolution of monasteries under Henry VIII. M.6.8 the sta- though the policy of the next popish successor affected to main were sus- grant a security to the possessors of abbey lands, yet, in order pended for twenty years.
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 corEnactments for poration without any licence whatsoever. And, long afterthe augmenta- wards, for a much better purpose, the augmentation of poor livings. 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 beneficies under 1001. per annum may be angmented by the purchase of lands without licence of mortmain
in either case; and the like provision hath been since made, Queen Anne's in favour of the governors of Queen Anne's bounty (9). It bounty.
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 main
tenance of a school, an hospital, or any other charitable Charitable uses. 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 (8). The two universities,
(8) A bequest of money, to be em- (9 Ves. 543), it was justly termed an ployed in building upon, or otherwise absurd distinction, to say that a testator improving, land already in mortmain, shall not give land to a charity, yet that is not considered a violation of the sta- he may give money conditionally, in tute. (Attorney-General v. Parsons, 8 consideration of another's giving land Ves. 191. Attorney-General v. Mun- for a charity. And it is now perfectly by, 1 Meriv. 345. Corbyn v. French, well settled, notwithstanding some ear4 Ves. 428). And where a testator lier decisions of Lord Hardwicke to the has pointed out such a mode of apply. contrary, that if a testator give personing his bequest, in favour of a charity, al property “to erect and endow” a as the policy of the law will not admit, school, or hospital, it must be considered, still, if he has left it entirely optional unless it be otherwise declared in his to his executors, or trustees, to adopt will, that it was the testator's intention that mode, or to select some other not land should be acquired, as a necessaliable to the same objections, the be- ry part of his purpose: (Chapman v. quest may be legally carried into effect. Brown, 6 Ves. 408. Attorney-General (Grimmet v. Grimmet, Ambl. 212; S.C. v. Davies, 9 Ves. 544): but where the 1 Dick. 251. Kirkbank v. Hudson, 7 testator has expressly directed that no Price, 217. Curtis v. Hutton, 14 Ves. part of the money bequeathed shall be 539. Attorney-General v. Goddard, employed in the purchase of land, it 1 Turn. & Russ. 350). But, where the being his expectation that other pertestator has used words of request, or sons will, at their expense, purchase recommendation, (not expressly leaving lands and buildings for the purposes the matter to the discretion of his exe- intended, there the statute has been cutors), those words of request are held held not to apply. (Henshaw v. Atkinto be mandatory, (Taylor v. George, son, 3 Mad. 313). So, where a testa2 Ves. & Bea. 378. Paul v. Compton, tor's directions can be sufficiently an8 Ves. 380. Parsons v. Baker, 18 Ves. swered by hiring land or buildings for 476), and if they point to an appro- the purposes of a charity, the bequest priation of the legacy contrary to the may be sustained: (Attorney-General policy of the law, the legacy must fail. v. Parsons, 8 Ves. 191. Johnson v. (Grieves v. Case, 1 Ves. junr. 550). Swan, 3 Mad. 467): but, it seems,
In the Attorney-General v. Davies, such hiring must not be on lease, or it