CHAPTER VI. OF AN ESTATE IN FEE-SIMPLE. Is absolute or qualified. Creation of a fee-simple. By whom it may be created. Idiots and lunatics. Married women. We have now arrived at the consideration of an estate in fee-simple-the greatest which the law recognises in a subject, and that out of which all other estates in land are derived. This estate may be either "absolute," which is the more ordinary form, or "qualified." An instance of the latter kind occurs if an estate is given to A. and his heirs "tenants of the manor of Dale:" here, whenever the heirs of A. cease to be tenants of that manor the grant is entirely defeated (a). No person can create an estate in fee-simple unless he has himself that estate in the lands with which he professes to deal. There are also certain persons who are, more or less, unable to create such an estate, from the fact of their having only a limited power of alienation. Thus any conveyance or will of land made by an idiot or lunatic (unless made in a lucid interval) is absolutely void (b). A married woman, too, is unable to dispose by deed of her real estate, unless it is settled to her separate use (a point to be adverted to hereafter), or unless the previous owner has given her a power to appoint that it shall go to certain persons (in which case she is merely acting as agent of the person who conferred the power), except with her husband's consent, and by a deed acknowledged in manner provided by the Fines and Recoveries Abolition Act or (a) 2 Bl. Com. 109. the Conveyancing Act, 1882 (c). She cannot dispose will (g). an estate in At Common Law all persons are capable of acquir- Who may have ing lands, but various restrictions have been imposed fee-simple. on this capacity by statute. We must notice these in order to understand the difficulties which they oppose to the creation of estates in fee-simple. From an early period, the feudal lords objected to lands being acquired by the monasteries and other religious houses Corporations. who made up the greater number of the earlier corporations; for the fact that these bodies were perpetual made it impossible that their lands should ever escheat as in ordinary cases, and lands held by them were consequently said to be in mortmain (in mortua manu). Hence we find a provision in Magna Charta (h), for- Magna Charta. bidding gifts to them, and afterwards it was enacted by the statute De Religiosis (i) that no persons, Statute De religious or other ecclesiastical corporation, body politic (~) 3 & 4 Wm. IV. c. 74. ss. 77, 79, 91 ; 45 & 46 Vict. c. 39, s. 7. (d) Sug. Pow. 153; 7 Wm. IV. and I Vict. c. 26, s. 8. (e) Taylor v. Meads, 13 W. R. 394. (f) Zouch v. Parsons, Burr. 1794; Allen v. Allen, 2 Dru. & War. 307. (g) 7 Wm. IV. and i Vict. c. 26, s. 7. (h) 9 Hen. III. c. 36. (i) 7 Ed. I. c. I. Religiosis. 15 Ric. II. c. 5. ecclesiastcal or lay, sole or aggregate, should buy or sell land, whereby the same should come into mortmain, under pain of forfeiture. This was extended by the 15 Ric. II., c. 5, to all lands purchased by guilds or fraternities, on the ground that mayors, bailiffs, and commons of cities, boroughs, and other towns, were as Licence from perpetual as people of religion. Consequently, it became customary, on the foundation of a lay corporation, to insert in its charter a licence from the Crown to hold 7 & 8 Wm. III. lands, and the validity of these licences was recognised Crown. c. 37. Charitable corporations. by the 7 & 8 Wm. III., c. 37, which permits the Crown, when it thinks fit, to grant to any persons, or bodies politic or corporate, licence to alien in mortmain, and also to purchase, acquire, take, and hold, in perpetuity or otherwise, any hereditaments whatever. With respect to religious corporations, the old law still obtains to a greatextent; the principal Act relating to this subject being that generally known as the Mortmain Act. Mortmain Act (j), passed in the reign of George the Second. This act only applies to gifts of land, or any interest in land, or of money to be invested in land, although it would appear from the preamble that it was the intention of its framers to give it a wider application (k). It enacts () that no manors, lands, tenements, rents, advowsons, or other hereditaments, corporeal or incorporeal, or any sum or sums of money, or personal estate whatever, to be laid out or disposed of in the purchase of any lands or hereditaments, shall be given, granted, or in any ways conveyed to any persons, bodies politic or corporate, or otherwise, for any estate or interest whatever, in trust for, or for the benefit of any charitable uses whatsoever, unless made by a deed executed in the presence of two or more credible witnesses, twelve calendar months at least before the death of the donor or grantor, and inrolled (j) 9 Geo. II. c. 36. (k) See the judgments in Jefferies v. Alexander, 8 H. L. C. 594. in Chancery within six calendar months after its exe- not (m) to extend to any purchase made bonâ fide for c. 57. The time allowed for inrolling conveyances under the Mortmain Act was enlarged by subsequent statutes (0), and now it is provided by the 29 & 30 Vict., 29 & 30 Vict. c. 57, that (p) any trustee of a charity may, at any time, apply to the Court of Chancery for an order authorising the inrolment of any deed, or other instrument, whereby any hereditaments have been conveyed for charitable uses, or any deed connected with any charitable trust, which deed ought to have been inrolled, but has not been inrolled within the time limited by law. c. 44. By a subsequent Act (g), grants of lands made to a 31 & 32 Vict. trustee or trustees on behalf of any society or body of persons associated together for religious purposes, or for the promotion of education, arts, literature, science, or other like purposes, in order to erect a building thereon, or whereon a building used, or intended to be used, for such purposes, or any of them, shall have been erected, are to be exempted from the necessity of inrolment, provided they are made bona fide and for valuable consideration, and provided that each such piece of land shall not exceed two acres in extent or (m) S. 2. (n) S. 3. (0) 24 & 25 Vict. c. 9; 25 & 26 Vict. c. 17; 27 & 28 Vict. c. 13. (p) S. I. (9) 31 & 32 Vict. c. 44. Charitable Trusts Acts. area in each case. In addition to the above, the Charitable Trusts Act, 1853 (r), and the Charitable Trusts Amendment Act, 1855 (s), enable trustees of charities to purchase lands for building purposes, and the 33 33 & 34 Vict. & 34 Vict., c. 34, permits (t) corporations and trustees holding monies in trust for any public or charitable purposes to invest the same in any mortgages or charges of lands and hereditaments of any tenure (u). C. 34. Corporations boards. Joint-stock companies. Aliens. With respect to corporations formed for purposes not charitable. not strictly charitable, the law of mortmain has been Highway of late considerably relaxed. Thus, highway boards are now empowered to take lands without a licence from the Crown (v), as are also joint-stock companies formed under the Companies' Act, 1862 (w), it being, however, provided by this Act (x) that no company formed for the purpose of promoting art, science, religion, charity, or any other like object, not involving the acquisition of gain by the company, shall hold more than two acres of land without the sanction of the Board of Trade. Aliens were also, until recently, forbidden to hold land in this country, except for business purposes, and then only for terms not exceedNaturalization ing twenty-one years, but now the Naturalization Act, 1870 (y), provides that real and personal property of every description except a British ship, may be taken, acquired, held, and disposed of by an alien, in the same manner in all respects as by a natural-born British subject; and that a title to real or personal property of every description except such a ship, may be derived through, from, or in succession to an alien, in the same manner, in all respects, as through a British subject. Act, 1870. |