upon the foundation of the colleges of Eton, Winchester, and Westminster, are excepted out of this act ;" but such exemption 2 Marsh., 61; 3 M. & S., 407; 2 Bar. & A., 96, 710; 1 Meriv., 342; 2 Id., 161; 2 B. & Ad., 744; 2 M. & W., 882; 8 Scott, 93; 1 Scott, N. R., 505; 2 Keen, 680. Copyholds are within the act. (3 B. & A., 149.)-[CHITTY.] Lord Hardwicke has declared, since this last mortmain act, that "there is no restriction whatsoever upon any one from leaving a sum of money by will, or any other personal estate, to charitable uses; provided it be to be continued as a personalty, and the executors or trustees are not obliged, or under a necessity, of laying it out in land, by virtue of any direction of the testator for that purpose." (2 Burn., Ecc. L., 509, tit. Mortmain.) ute Money left to repair parsonage houses, or to build upon land already in mortmain, is held not to be within the stat(1 Bro., 444; Ambl., 373, 651; 1 Mer., 327; 4 Russ., 342.) But a legacy to the corporation of Queen Anne's bounty is void; as by the rules of the corporation it must be laid out in land. (1 Bro., 13.) By the 43 Geo. III., c. 107, the operation of the mortmain act upon the 2 & 3 Anne, c. 11, s. 4, is removed, and the powers given by that section are restored, so that every person is at liberty to give by deed enrolled, or by will, any real or personal property for the augmentation of Queen Anne's bounty. That statute enables the governors to exchange all the lands of an augmented living or cure, and also to apply money in their hands to the procuring of a suitable residence for the minister. And by the 43 Geo. III., c. 108, in like manner any person may give by deed enrolled, or will, executed three months before his death, five acres of land, or personal property to the amount of £500, for the building or repair of any church or parsonage house. If more is given, it may be reduced to that limit by the chancellor. But a glebe of fifty acres can be augmented by one acre only. The bequest of personalty to establish a school has been held to be good; as it was not necessary to purchase lands to give effect to the testator's design, for the master might teach in his own house or in the church. (4 T. R., 526.) [CHRISTIAN.]. It has been determined that this statute extends to the devise of lands to trustees, to be sold, and the produce of the sale converted to charitable uses. (Amb., 20; 1 Ves., 108; 2 Ves., 52; 2 VOL. II.-X Sim. & St., 595.) Money secured on mortgage, on turnpike tolls, canal and rail-way shares, poor rates, and county rates, are likewise within the scope of the act. (Amb., 625; 2 Ves., 45; 4 Ves., 431, 542; 10 Ves., 41; 1 Russ. & M., 71; 2 Id., 344; 3 Myl. & K., 517.) A conveyance, only bad in part, under the statute, is not wholly void, but may pass so much of the estate as is not demised in mortmain. (2 Marsh., 61.) "No disposition has been manifested by the courts to strain the rules of construction in favor of charity. Never, indeed, was the spirit of any legislative enactment more vigorously and zealously seconded by the judicature than the stat. of the 9 Geo. II. This is abundantly evident from the general tone of the adjudications; but the two points in which it is most strikingly displayed are, first, the holding a gift to charity of the proceeds of real estate to be absolutely void, instead of giving to the charity legatee the option to take it as money, according to the rule since adopted in the case of a similar gift to an alien; and, secondly, the refusal of equity to marshal assets in favor of a charity, in conformity to its general principle; that principle being evidently founded on an anxiety to carry out, as far as possible, the intentions of testators. In this solitary case, the intention has been allowed to be subverted by a mere slip or omission of the testator, which the court had the power of easily correcting, by an arrangement of the funds." (1 Jarm., Wills, 211. See in the same work and page, some remarks on the policy of the existing law.) There are no provisions analogous to those of the stat. 9 Geo. II., applicable to Ireland or any of the British colonies or dominions abroad. (See 2 Meriv., 164; 1 Moore, P. C., 175; 1 Phill., 192; 1 Con. & Laws, 89.) By the 1 & 2 Geo. IV., c. 92, any person, or body politic or corporate, in whom any lands, tenements, or hereditaments are vested, subject to any trust for any charitable purpose, may grant or convey the same in exchange for any other lands, &c. (12) See 1 Eden, 16; 3 Ves., 728. And exceptions have been made by various statutes in favor of other public charities; as the British Museum (5 Geo. IV., c. 39), Greenwich Hospital (10 Geo. IV., c. 25, s. 37), The Foundling Hospital (11 Geo. II., c. 29), &c. 321 2. Alienation was granted with this proviso, that no college shall be at liberty to purchase more advowsons than are equal in number to one moiety of the fellows or students upon the respective foundations.is 2. Secondly, alienation to an alien is also a cause of forto an alien. feiture to the crown of the land so alienated; not only on account of his incapacity to hold them, which occasions him to be passed by in descents of land, but likewise on account of his presumption in attempting, by an act of his own, to acquire any real property; as was observed in the preceding volume.t1 3. Tortious alienation 3. Lastly, alienations by particular tenants, when they are by particu- greater than the law entitles them to make, and devest the relar tenants. mainder or reversion,u are also forfeitures to him whose right is attacked thereby. As, if tenant for his own life alienes by feoffment or fine for the life of another, or in tail, or in fee;i these being estates, which either must or may last longer than his own, the creating them is not only beyond his power, and inconsistent with the nature of his interest, but is also a forfeiture of his own particular estate to him in remainder or reversion.v* For which there seem to be two reasons: First, (See Shelford on Mortmain and Chari- ticular tenant (now impossible in the lattable Uses, p. 49.) (13) By the 45 Geo. III., c. 101, this part of the statute is repealed, so that these colleges may now hold any number of advowsons. But it is said that these statutes did not affect the old restraints of the mortmain laws, and that a license from the crown is still necessary when a college purchases an adVowson. Many colleges are provided with prospective licenses to purchase in mortmain to a specified extent, and they have in practice been considered sufficient.-COLERIDGE.] (14) An alien may be grantee in a deed, though his holding is precarious; for on office found the king shall have it by his prerogative. (Co. Litt., 2, b; 5 Co., 52; 1 Leon., 47. As to copyhold, see 1 Mod., 17; All., 14.) ter case, since the abolition of fines and recoveries) does not devest the remainder or reversion, and yet operates as a forfeiture. (Co. Litt., 251, b; 9 Rep., 106.) So, a fine by a tenant for years did not devest the reversion, and yet was a forfeiture. It may be added, that this head of forfeiture is exclusively concerned with legal estates. There can be no forfeiture of an equity by improper alienation. (Fearne, C. R., 321.) (16) Or by recovery (1 Co., 14, b; 7 Scott, 807), but not by lease and release, bargain and sale, &c., as no estate passes by these "innocent" conveyances but what may legally pass. The alienation in fee by deed, by tenant for life, &c., of any thing which lies in grant, as an advowson, common, &c., does not amount to a forfeiture (Co. Litt., 251, b); but a fine in fee of such an estate was a forfeiture. (Ibid.) See in general, as to this description of forfeiture, 1 Saund., 319, b, &c. Fines and recoveries having been abolished, the only tortious conveyance which is now possible is by (15) It is not necessary that the re- * This cause of forfeiture exists no longer in New York, the legislature having because such alienation amounts to a renunciation of the feodal connection and dependence; it implies a refusal to perform the due renders and services to the lord of the fee, of which fealty [275] is constantly one; and it tends in its consequence to defeat and devest the remainder or reversion expectant: as, therefore, that is put in jeopardy by such act of the particular tenant, it is but just that, upon discovery, the particular estate should be forfeited and taken from him, who has shown so manifest an inclination to make an improper use of it. The other reason is, because the particular tenant, by granting a larger estate than his own, has by his own act determined and put an entire end to his own original interest; and on such determination the next taker is entitled to enter regularly, as in his remainder or reversion. The same law which is thus laid down with regard to tenants for life holds, also, with respect to all tenants of the mere freehold or of chattel interests; but if tenant in tail Discontinualienes in fee, this is no immediate forfeiture to the remainder- ant in tail is man, but a mere discontinuance (as it is calledw) of the estate- no forfeittail, which the issue may afterward avoid by due course of law: for he in remainder or reversion hath only a very remote and barely possible interest therein, until the issue in tail is extinct. But, in case of such forfeitures by particular tenants, all legal estates by them before created, as, if tenant for twenty years grants a lease for fifteen, and all charges by him lawfully made on the lands, shall be good and available in law. For the law will not hurt an innocent lessee for the fault of his lessor; nor permit the lessor, after he has granted a good and lawful estate by his own act, to avoid it, and defeat the interest which he himself has created." ance by ten ure. by disclaim. Equivalent, both in its nature and its consequences, to an il- Forfeiture legal alienation by the particular tenant, is the civil crime of er of tenure. disclaimer; as, where a tenant who holds of any lord neglects to render him the due services, and, upon an action brought to recover them, disclaims to hold of his lord; which disclaimer of tenure in any court of record is a forfeiture of the lands to the lord, upon reasons most apparently feodal. And so, like Z (17) The discontinuance formerly took and the remedy of the issue is now by away the assignee's right of entry; and, entry. therefore, the "due course of law" mentioned in the text was a real action. (4) B. & Ad., 283; 1 Nev. & M., 130.) But a discontinuance has been deprived of that effect by the stat. 3 & 4 Will. IV., c. 27, s. 39 (ante, p. 266, n. (10)); (18) But where the forfeiture is occasioned by breach of condition, even implied, as against waste, this is a more direct injury to the reversioner, and a sub-lessee shall not be protected. (Co. Litt., 202, a, 234, a; Gilb., Ten., 201.) declared that no greater interest shall be construed to pass by any grant or conveyance than the grantor himself possessed, or could lawfully convey.—(1 R. S., 739, § 143.) [276] wise, if in any court of record the particular tenant does any act which amounts to a virtual disclaimer; if he claims any greater estate than was granted him at the first infeodation, or takes upon himself those rights which belong only to tenants of a superior class;a if he affirms the reversion to be in a stranger, by accepting his fine, attorning as his tenant, collusive pleading, and the like;b such behavior amounts to a forfeiture of his particular estate." III. Forfeiture or lapse vacant church. III. Lapse is a species of forfeiture, whereby the right of on neglect to presentation to a church accrues to the ordinary by neglect of present to a the patron to present, to the metropolitan by neglect of the ordinary, and to the king by neglect of the metropolitan. For, it being for the interest of religion and the good of the public that the church should be provided with an officiating minister, the law has, therefore, given this right of lapse, in order to quicken the patron, who might otherwise, by suffering the church to remain vacant, avoid paying his ecclesiastical dues, and frustrate the pious intentions of his ancestors. This right of lapse was first established about the time (though not by the authority) of the Council of Lateran,d which was in the reign of our Henry the Second, when the bishops first began to exercise universally the right of institution to churches.e And, therefore, where there is no right of institution, there is no right of lapse; so that no donative can lapse to the ordinary unless it hath been augmented by the queen's bounty.g But no right of lapse can accrue when the original presentation is in the crown.h20 Lapse, after six months' default. The term, in which the title to present by lapse accrues from the one to the other successively, is six calendar monthsi (following in this case the computation of the church, and not (19) If a tenant sets up a title hostile to his landlord, it is a forfeiture of his term; and it is the same if he assists another person to set up such a claim. (1 C., M. & R., 141. See 1 Per. & D., 636.) A parol disclaimer by tenant for years is no forfeiture. (2 Per. & D., 396.) If a tenant set his landlord at defiance, and do any act disclaiming to hold of him as tenant, as, for instance, if he attorn to some other person, no notice to quit will be necessary; for, in such case, although the wrongful operation of an attornment has been taken away (11 Geo. II., c. 19, s. 11), the f Bro. Abr., tit. Quar. Imped. Cro. Jac., 518. 8 Stat. 1 Geo. I., st. 2, c. 10. h Stat. 17 Edw. II., c. 8. 2 Inst., 273. i 6 Rep., 62. Registr., 42. landlord may treat him as a trespasser. (Buller's N. P., 96; Cowp., 622; 2 Sch. & Lefr., 73, 434.) As to the disclaimer of a grant or de vise, see p. 309. (20) If a right of lapse accrues to the bishop, and he dies, or is translated be fore he avails himself of it, the right of presentation to the lapsed benefice does not pass to the king, like the vacant patronage of the fee, but to the guardian of the spiritualities. (Gibson, 770.)— [CHRISTIAN.] the usual one of the common law), and this exclusive of the day of the avoidance.k" But, if the bishop be both patron and ordinary, he shall not have a double time to collate in; for the [277] forfeiture accrues by law whenever the negligence has continued six months in the same person. And, also, if the bishop doth not collate his own clerk immediately to the living, and the patron presents, though after the six months are lapsed, yet his presentation is good, and the bishop is bound to institute the patron's clerk. For, as the law only gives the bishop this title by lapse, to punish the patron's negligence, there is no reason that, if the bishop himself be guilty of equal or greater negligence, the patron should be deprived of his turn. If the bishop suffer the presentation to lapse to the metropolitan, the patron also has the same advantage if he presents before the archbishop has filled up the benefice; and that for the same reason. Yet the ordinary can not, after lapse to the metropolitan, collate his own clerk to the prejudice of the archbishop." For he had no permanent right and interest in the advowson, as the patron hath, but merely a temporary one; which having neglected to make use of during the time, he can not afterward retrieve it. But if the presentation lapses to the king, No lapse prerogative here intervenes and makes a difference; and the patron shall never recover his right till the king has satisfied his turn by presentation; for nullum tempus occurrit regi. And, therefore, it may seem as if the church might continue void forever, unless the king shall be pleased to present, and a patron thereby be absolutely defeated of his advowson. But, to prevent this inconvenience, the law has lodged a power in the patron's hands of, as it were, compelling the king to present. For if, during the delay of the crown, the patron himself presents, and his clerk is instituted, the king, indeed, by presenting another, may turn out the patron's clerk; or, after induction, may remove him by quare impedit: but if he does not, and the patron's clerk dies incumbent, or is canonically deprived, the king hath lost his right, which was only to the next or first presentation.P against the crown. bound to In case the benefice becomes void by death, or cession [278] through plurality of benefices, there the patron is bound to take Patron notice of the vacancy at his own peril; for these are matters take notice of equal notoriety to the patron and ordinary: but in case of a of the vacan vacancy by resignation, or canonical deprivation, or if a clerk cy in most presented be refused for insufficiency, these being matters of which the bishop alone is presumed to be cognizant, here the * 2 Inst., 361. 1 Gibs., Cod., 769. (21) The passage referred to by the commentator does not support this po a 2 Roll. Abr., 368. • Dr. & St., D. 2, c. 36. Cro. Car., 355. sition as to the exclusion of the day of cases. |
