[dedicated), this hath occasioned the general appellation of mortmain to be applied to such alienations, and the religious houses themselves to be principally considered in framing the Statutes of Mortmain.] By the common law, any man might dispose of his lands to any other private man at his discretion, especially when the feudal restraints on alienation were worn away. Yet, in consequence of these, it has long been necessary for corporations to have a licence in mortmain from the Crown, to enable them to become the holders of lands. For as the king is the ultimate lord of every fee, he ought not, unless by his own consent, to lose his privilege of escheats or other feudal profits, by the vesting of the lands in tenants who can never die. And besides this general licence from the king, as lord paramount of the kingdom, it was also requisite, whenever there was a mesne or intermediate lord between the king and the alienor, to obtain his licence also (upon the same feudal principles), for the alienation of the specific land. And if no such licence was obtained, the king or other lord might enter on the lands so aliened in mortmain, as for a forfeiture. Yet such was the ingenuity of the clergy, that, notwithstanding this fundamental principle, the religious houses obtained large possessions, whereby the feudal services, ordained for the defence of the kingdom, were every day visibly withdrawn, and lords were curtailed of their escheats, reliefs, and the like. And therefore, in order to prevent this, it was provided, by the second of King Henry the Third's great charters, and afterwards by that printed in our common statute books, that all such gifts should be void, and the lands forfeited to the lords of the fee (e). But as this prohibition extended only to religious houses (i.e., ecclesiastical corporations aggregate), bishops and other sole corporations were not included therein; (e) Mag. Cart. Hen. 3, (1225) c. 36. [and the ecclesiastical corporations aggregate found many means to creep out of this statute, by buying in lands that were holden of themselves as lords of the fee, and thereby evading the forfeiture, or by taking long leases for a thousand years or more. This produced the Statute De Religiosis, of 1279 (ƒ), by which it was provided, that no person (religious or other) should buy, or sell, or receive under pretence of a gift or lease, nor should by any art or ingenuity appropriate to himself, 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 for a forfeiture. The statutes referred to extending, however, 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 collusion made no defence. And thereupon judgment was given for the religious house, which then recovered the land upon a supposed prior title by sentence of law. And thus they had the honour of inventing those fictitious adjudications of right which afterwards, under the name of common recoveries, became the great assurances of the kingdom. But, upon this, the Statute of Westminster the Second (13 Edw. I.), c. 32, enacted, that in such cases a jury should try the true right of the demandants or plaintiffs to the land; and if the religious corporation was found to have it, they should still recover, but otherwise the land should 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 against tenants who set up crosses upon their lands (the badges. of knights templars and hospitallers) in order to protect them from the feudal demands of their lords, by virtue of (f) 7 Edw. 1, st. 2. [the privileges of those religious and military orders. And so careful was this provident prince, that when the Statute Quia Emptores (18 Edw. I. c. 3) abolished subinfeudations, and gave liberty for all men to alienate their lands to be holden of their next immediate lord, a proviso was inserted that this should not extend to authorise alienation in mortmain. The next evasion resorted to by the religious houses was the adoption of the new method of conveyance, (previously described (g)) by which the lands were granted, not to themselves directly, but to feoffees to their use, whereby they received the actual profits, without becoming entitled to the lands themselves, the seisin of the lands remaining in the feoffees. But even this device was checked by the Mortmain Act of 1391 (h), by which it was enacted, that Uses should be subject to the Statutes of Mortmain, and forfeitable like the lands themselves. This statute, which extended to all corporations, whether ecclesiastical or not, seems finally to have put a stop to evasions of the Mortmain Laws. But, as regards all alienations to bodies corporate, it was always in the power of the Crown, by granting a licence of mortmain, to remit the forfeiture, so far as related to its own rights; though it could not affect the rights of the mesne lords. This prerogative was confirmed by statute of the year 1344 (i); and when, through the long operation of the Statute Quia Emptores, the rights of mesne lords had been reduced within a very small compass, it was declared, by an Act of the year 1696 (k), that the Crown for the future, at its own discretion, might grant licences to aliene or take in mortmain, of whomsoever the tenements might be holden. At the time of the Reformation, moreover, it was deemed necessary to place impediments in the way of alienating lands for religious purposes, even though such (g) Ante, bk. ii., pt. i., ch. 9. (i) 18 Edw. 3, st. 3, c. 3. (k) 7 & 8 Will. 3, c. 37. [alienations did not, strictly, violate the rule against mortmain, e.g., because the lands were not vested in corporations. Such alienations were accordingly declared roid, but not a cause of forfeiture, by a statute of the year 1531 (). And, although this statute was afterwards construed to cover only gifts for superstitious purposes, the policy of restraining improvident gifts to charities. was never lost sight of, and ultimately, by the so-called Mortmain Act of 1736 (m), it was enacted, that (in effect) all gifts by will for charitable purposes should be simply void; and that no lands or hereditaments, or money to be laid out in the purchase thereof, should be given or conveyed, or anyways charged or incumbered, in trust for, or for the benefit of, any charitable use whatsoever, unless by deed executed in the presence of two witnesses twelve calendar months before the death of the donor, and enrolled in Chancery within six calendar months after its execution, and unless such gift was made to take effect immediately, without power of revocation, or other clause or covenant for the benefit of the donor, or of those claiming under him. If these several conditions were not complied with, not only was the charitable use inoperative, but the conveyance itself was void to all intents and purposes.] The law as to alienation in mortmain and as to gifts of lands for charitable purposes is now chiefly contained in the Mortmain and Charitable Uses Act, 1888 (n), whereby the former provisions regarding mortmain and charitable uses respectively have been consolidated, with some slight amendments, and all the earlier Acts have been repealed. And, first, as regards alienation in mortmain. Land may not (except with the licence of the Crown) be acquired by or on behalf of any corporation not authorized in that behalf by statute, under pain of forfeiture of such land to the Crown, subject to the rights of the mesne (7) 23 Hen. 8, c. 10. (m) 9 Geo. 2, c. 36. (n) 51 & 52 Vict. c. 42. lords (if any) (0); but the Crown may grant licences to aliene and to acquire in mortmain (p). And, second, as regards assurances for charitable uses. The assurance of land or of money to be laid out in the purchase of land (unless it be a registered disposition under the Land Transfer Act, 1875), inust be by deed, with two witnesses (q), executed twelve calendar months before the death of the assuror, and enrolled in the Supreme Court (Central Office) within six calendar months of its execution, must take effect in possession immediately, and must be without any power of revocation or reservation other than of a peppercorn rent, or of mines or minerals, or of easements, or of building provisions, or (in the case of bonâ fide purchases) other than of a rent or rent-charge regarded as portion of the purchase-money payable. Stock to be laid out in land for charitable purposes must be transferred in the public books six calendar months before the death of the assuror (r). If these formalities are omitted, the attempted alienation is void; but it does not, like an alienation in mortmain, work a forfeiture. But assurances for the purposes of a public park, or of an elementary school house, or of a public museum, are to a certain extent excepted from both classes of provisions; and as regards such assurances, which may, in general, be either by deed or by will, it is only required that they shall be executed twelve calendar months before the assuror's death, and be enrolled with the Charity Commissioners six calendar months after the execution of the deed, or the death of the testator. But the area of the land given must not exceed one acre for a school-house, two acres for a museum, and twenty acres for a park. The Universities of Oxford, Cambridge, London, Durham, and the Victoria University, and their several colleges, and the colleges of Eton, Winchester, and Westminster, (0) Sect. 1. (p) Sect. 2. (q) This requirement does not apply to copyholds. Sect. 4 (6). (r) Sect. 4. |