mon recoveries.

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.

(1) 2 Inst. 501.

(m) Cap. 3.

(7) See post, chapter 21, sect. 4, p. 357, and the appendix to this volume, No. 5.

Since this note was first published,

common recoveries have been abolish-
ed by the statute of 3 & 4 Gul. IV. c.
74.

(8) It is, perhaps, not quite accu

New method of conveyance devised by the clergy to nomi. nal feoffees to

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,

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

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 introduc

tion of uses and trusts, the foundation of modern conveyBut the statute ancing. But, unfortunately for the inventors themselves, made uses sub- 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

15 Ric. II. c. 5,

statutes of mortmain.

still

or take lands,

main.

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 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).

After the dissolution of monasteries under Henry VIII. By 1 & 2 P. & though the policy of the next popish successor affected to tutes of mortgrant a security to the possessors of abbey lands, yet, in pended for

twenty years. 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

the augmentalong afterwards, for a much better purpose, the augmenta- tion of poor

livings. 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 1001. per annum

M. c. 8, the sta

main were sus

(n) 2 Hawk. P. C. 391.

(0) Stat. 1 W. & M. st. 2, c. 2.

(p) Co. Litt. 99.

(9) See the last note.

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 státute 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

(1) Stat. 2 & 3 Ann. c. 11.

(r) 1 Rep. 24.

(10) A bequest of money, to be em- where the testator has used words of ployed in building upon, or otherwise request, or recommendation, (not eximproving, land already in mortmain, pressly leaving the matter to the disis not considered a violation of the sta- cretion of his executors,) those words tute. (Attorney General v. Parsons, of request are held to be mandatory. 8 Ves. 191 ; Attorney General v. Mun- (Taylor v. George, 2 Ves. & Bea. 378; by, 1 Meriv. 345; Corbyn v. French, Paul v. Compton, 8 Ves. 380; Par4 Ves. 428.) And where a testator sons v. Baker, 18 Ves. 476.) And if has pointed out such a mode of apply they point to an appropriation of the ing his bequest, in favour of a charity, legacy contrary to the policy of the as the policy of the law will not admit, law, the legacy must fail. (Grieves v. still, if he has left it entirely optional Case, 1 Ves. jun. 550.) to his executors, or trustees, to adopt In the Atlorney General v. Davies, that mode, or to select some other not (9 Ves. 543,) it was justly termed an liable to the same objections, the be- absurd distinction, to say that a testaquest may be legally carried into effect. tor shall not give land to a charity, yet (Grimmet v. Grimmet, Ambl. 212; that he may give money conditionally, S. C. I Dick. 251 ; Kirkbank v. Hud- in consideration of another's giving son, 7 Price, 217; Curtis v. Hutton, land for a charity. And it is now per14 Ves. 539; Attorney General v. fectly well settled, notwithstanding Goddard, 1 Turn. & Russ. 350.) But, some earlier decisions of Lord Hard

universities, their colleges, and the scholars upon the foundation of the colleges of Eton, Winchester, and Westmin

a

wicke to the contrary, that if a testator rick, 2 Ves. sen. 46,) or on turnpike give personal property “to erect and tolls, (Corbyn v. French, 4 Ves. 380; endow" a school, or hospital, it must Howse v. Chapman, 4 Ves. 545,) or be considered, unless it be otherwise by an assignment of poor rates, or declared in his will, that it was the tes- county rates, (Finch v. Squire, 10 Ves. tator's intention land should be ac- 44; The King v. Bates, 3 Price, 358,) quired, as a necessary part of his pur- are all void ; as is a bequest of navigapose:(Chapman v. Brown, 6 Ves. 408; tion shares to charitable uses ; (BuckAttorney Generalv.Davies,9 Ves.544;) eridge v. Ingram, 2 Ves. jun. 663 ;) but where the testator has expressly for in each of these cases it has been directed that no part of the money held, that the donation not only bequeathed shall be employed in the savours of the realty, but partakes of purchase of land, it being his expecta- it; that a real interest arising out of tion that other persons will, at their the soil, (though not the soil itself,) expense, purchase lands and buildings is attempted to be given; and that for the purposes intended, there the this attempt, being in fraud of the statute has been held not to apply. statute, cannot be carried into effect. (Henshaw v. Atkinson, 3 Mad. 313.) A bequest to a charity being void so So, where a testator's directions can far as it touches any interest in land, be sufficiently answered by hiring land it follows, upon principle, and, after or buildings for the purposes of a chari- some fluctuation, (Attorney General ty, the bequest may be sustained : (At- v. Graves, Ambl. 158,) is now contorney General v. Parsons, 8 Ves. 191; firmed by repeated decisions, that Johnson v. Swan, 3 Mad. 467 :) but, where a testator has charged his real it seems, such hiring must not be on estate, in aid of his personal, with lease, or it would be an acquisition, by payment of all his legacies, there, if the testator's direction, of such an the personal estate be not sufficient for interest in lands, tenements, or here- payment of the whole, charitable leditaments, as the third section of gacies must abate, and receive such the statute prohibits. (Blandford v. average proportion only as the perThackerell, 2 Ves. jun. 241.) And sonal assets afford for the discharge where a testator has directed that of the whole pecuniary legacies. If a his real and personal estate shall be court of equity were to marshal the employed by the trustees named in his assets, and secure full payment of the will, in the purchase of land and the charitable legacies, by throwing the erection of a school-house thereon, other pecuniary legacies upon the tesand the subsequent endowment and tator's real estate, it would be enabling support of the school so to be erected; that to be done circuitously which the illegality of this gift cannot be cannot be done directly. (Attorney cured by an offer, on the part of the General v. Tyndall, 2 Eden, 210; trustees or others, to provide at their Waller v. Childs, Ambl. 526; Foster own expense the land required. (At. v. Blagden, Ambl. 704 ; Ridges v. torney General v. Nash, 3 Brown, Morrison, 1 Cox, 181.) 588, 595.)

As the object of the statute of mortCharitable legacies, secured by mort- main was wholly political, as it grew gages on lands, (Currie v. Pye, 17 out of local circumstances, and was Ves. 464 ; Attorney General v. Mey- meant to have merely a local operaVOL. II.

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