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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. But upon this the statute of Westminster the second, 13 Edw. I. 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 sha 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 Iords, by virtue of the privileges of those religious and military orders. Só careful, indeed, was this provident prince to prevent any future evasions, that when the statute of quia emptores, 18 Edw. I., abolished all subinfeudations, and gave liberty for all men to alienate their lands to be holden of their next immediate lord,() 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 license by writ of ad quod damnum was marked out, by the statute 27 Edw. I. st. 2, it was further provided by statute 34 Edw. I. st. 3 that no such license 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 which the lands were granted, not to themselves directly, but to nominal feoffees to the use of the religious houses; thus distinguishing between *272]
the possession and the use, and receiving *the actual profits, while the
seisin of the land 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 introduction of uses and trusts, the foundation of modern conveyancing. But, unfortunately for the inventors themselves, they did not long enjoy the advan. tage 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 license 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 churchyards, 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 fre. quently 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, by granting a license of mortmain, to remit the forfeiture, so far as related to its own rights; and to enable any 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 license was valid, (n) since the kings had no *power to dispense with the statutes of mortmain by a clause of non
obstante,(0) which was the usual course, though it seems to have been unn cessary :(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 licenses to aliene or take in mortmain, of whomsoever the tenements may holden.
After the dissolution of monasteries under Henry VIII., though the policy of the next popish successor affected to grant a security to the possessors of abbey lands, yet, in 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. and M. c. 8, and during that time any lands or tenements were allowed to be granted to any spiritual corporation without any license whatsoever. And, long afterwards, for a much better purpose, the augmentation 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 may be augmented by the purchase of lands, without license of mortmain in either case; and the like provision hath been since made, in favour of the governors of queen Anne's bounty (9) 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, a hospital, or any 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 statute 9 Geo. II. c. 36, that no lands or tenements,
[*27+ 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! () Stat. 1 W. and M. st. 2, c. 2.
(9) Stat. 2 & 3 Anne, c. 11.
(*) Rep. 24. 8 A bequest of money to be employed in building upon, or otherwise improving, land already in mortmain, is not considered a violation of the statute. Attorney-General vs. Parsons, 8 Ves. 191. Attorney-General vs. Munby, 1 Meriv. 345. Corbyn vs. French, + Ves. 428. And where a testator has pointed out such a mode of applying his bequest in favour of a charity as the policy of the law will not admit, still, if he has left it entirely optional to his executors or trustees to adopt that mode, or to select some other not liable to the same objections, the bequest may be legally carried into effect. Grimmet vs. Grimmet, Ambl. 212. S. C. 1 Dick. 251. Kirkbank vs. Hudson, 7 Price, 217. Curtis vs. Hutton, 14 Ves. 539. Attorney-General vs. Goddard, 1 Turn. & Russ. 350. But, where the testator has used the words of request or recommendation, (not expressly leaving the matter to the discretion of his executors,) those words of request are held to be mandatory, (Taylor vs. George, 2 Ves. & Bea. 378. Paul vs. Compton, 8 Ves. 380. Parsons vs. Baker, 18 Ves. 476 ;) and if they point to an appropriation of the legacy contrary to the policy of the law, the legacy must fail. Grieves vs. Case, 1 Ves. Jr. 550.
In the Attorney-General vs. Davies (9 Ves. 543) it was justly termed an absurd distinction to say that a testator shall not give land to a charity, yet that he may give money conditionally, in consideration of another's giving land for a charity. And it is now perfectly well settled, notwithstanding some earlier decisions of lord Hardwicke to the contrary, that, if a testator give personal property“ to erect and endow" a school or hospital, it must be considered, unless it be otherwise declared in his will, that it was the testator's intention land should be acquired, as a necessary part of his purpose, (Chapman vs. Brown, 6 Ves. 408. Attorney-General vs. Davies, 9 Ves. 544;) but, where the testator has expressly directed that no part of the money bequeathed shall be employed in the purchase of land, it being his expectation that other persons will, at their expense, purchase lands and buildings for the purposes intended, there the statute has been held not to apply. Henshaw vs. Atkinson, 3 Mad. 313. So, where a testator's directions can be sufficiently answered by hiring land or buildings for the purposes of a charity,
(P) Co. Litt. 99.
The two universities, their colleges, and the scholars upon the foundation of the colleges of Eton, Winchester, and Westminster, are excepted out of this act: but such exemption was granted with this proviso, that no college shall be at the bequest may be sustained, (Attorney-General vs. Parsons, 8 Ves. 191. Johnson s. Swan, 3 Mad. 467 ;) but it seems such hiring must not be on lease, or it would be an ac quisition, by the testator's directions, of such an interest in lands, tenements, or here ditaments as the third section of the statute prohibits. Blandford vs. Thackerell, 2 Ve. Jr. 241. And where a testator has directed that his real and personal estate shall be employed by the trustees named in his will in the purchase of land and the erection of a school-house thereon, and the subsequent endowment and support of the school so to be erected, the illegality of this gift cannot be cured by an offer, on the part of the trustees or others, to provide at their own expense the land required. Attorney-General vs. Nash, 2 Brown, 588, 595.
Charitable legacies secured by mortgages on lands, (Currie vs. Pye, 17 Ves. 464. Attorney-General vs. Meyrick, 2 Ves. Sen. 46,) or on turnpike-tolls, (Corbyn vs. French, 4 Ves. 380. Howse vs. Chapman, 4 Ves. 545,) or by an assignment of poor-rates or county-rates, (Finch vs. Squire, 10 Ves. 44. The King vs. Bates, 3 Price, 358,) are all void, as is a bequest of navigation-shares to charitable uses, (Buckeridge vs. Ingram, 2 Tes. Jr. 663 ;) for in each of these cases it has been held that the donation not only savours of the realty, but partakes of it; that a real interest arising out of the soil (though not the soil itself) is attempted to be given; and that this attempt, being in fraud of the statute, cannot be carried into effect.
A bequest to a charity being void so far as it touches any interest in land, it follows upon principle, and, after some fluctuation, (Attorney-General vs. Graves, Ambl. 158.) is now confirmed by repeated decisions, that where a testator has charged his real estate in aid of his personal with payment of all his legacies, there, if the personal estate be not sufficient for payment of the whole, charitable legacies must abate, and receive such average proportion only as the personal assets afford for the discharge of the whole pecuniary legacies. If a court of equity were to marshal the assets, and secure full payment of the charitable legacies, by throwing the other pecuniary legacies upon the testator's real estate, it would be enabling that to be done circuitously which cannot be done directly. Attorney-General vs. Tyndall, 2 Eden, 210. Waller vs. Childs, Ambl. 526. Foster vs. Blagden, Ambl. 704. Ridges vs. Morrison, 1 Cox, 181.
As the object of the statute of mortmain was wholly political, as it grew out of local circumstances, and was meant to have merely a local operation, it is decided that its provisions do not extend to the alienation of land in the West India colonies (AttorneyGeneral vs. Stewart, 2 Meriv. 161) or in Scotland. Mackintosh vs. Townsend, 1. Ves. 338. But a devise of real estate, situate in England, for charitable purposes, will not be the less void because such purposes are to be carried into execution out of England. Curtis vs. Hutton, 14 Ves. 541.
It has been said that if an heir-at-law will confirm his ancestor's devise of land to a charity, no court will take it away, for the gift becomes the act and deed of the heir. Attorney-General vs. Graves, Ambl. 158; and see Pickering vs. Lord Stamford, 2 Ves. Jr. 584. However, as an immediate gift from the heir would be good only in case it was made a year before his death, upon the principle of the statute he ought to live a year after confirmation of the devise to give it validity.
When a bequest for charitable purposes which, if it stood alone, would be valid, is coupled with and dependent upon a devise void under the statute of mortmain, the devisą being the principal, and failing, the accessory bequest must also fail. Attorney. General vs. Davies, 9 Ves. 543. Chapman vs. Brown, 6 Ves. 410. Attorney-General . Goulding, 2 Brown, 429. And where an undefined portion of a legacy is directed by the testator to be applied for purposes which the policy of the law does not admit, the bequest of the residue to a charity which the law sanctions cannot take effect; for, the illegal part of the gift being undefined, it is impossible to ascertain the amount of the residue. Attorney-General vs. Hinxman, 2 Jac. & Walk. 277. Vezey vs. Jamson, 1 Sim. & Stu. 71. Grieves vs. Case, 1 Ves. Jr. 553. If, indeed, the legal bequest and the illegal purpose are not so connected as to be inseparable, and the proportions are defined, or capable of being exactly calculated, in such cases the bequest may be supported. Attorney-General vs. Stepney, 10 Ves. 29. Waite vs. Webb, 6 Mad. 71.
Where a bequest of money to be laid out in land is void under the mortmain act, the money never becomes impressed with the character of land, and no resulting trust arises in favour of the testator's heir-at-law. Attorney-General vs. Tonner, 2 Ves. Jr. 7. Chapman vs. Brown, 6 Ves. 411.
By the statute of 43 Geo. III. c. 107, the operation of the mortmain act is so far quali&:d as to allow any one to give, by deed enrolled or by will, any real or personal property for the augmentation of queen Anne's bounty.
liberty to purchase more advowsons than are equal in number to one moiety of the fellows or students, upon the respective foundations.
2. Secondly, alienation to an alien is also a cause of forfeiture 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,(s) 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 book.(t)
3. Lastly, alienations by particular tenants, when they are greater than the law entitles them to make, and devest the remainder or revers.on,(v) are also forfe:tures to him whose right is attacked thereby. As, if tenant for his own life ahenes by feoffment or fine for the life of another, or in tail, or in fee; 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, 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 is constantly one: and it tends in its consequence to defeat and devest the remainder or reversion expectant: as
[ *275 therefore that is put in jeopardy by such act of the particular tenant, it is but See pages 249, 250
(*) Co. Litt. 251. ( Book i. page 372.
Litt. & 415.
And, by statute 43 Geo. III. c. 108, persons are allowed to give, by deed or will, lands not exceeding five acres, or goods and chattels not exceeding 5001., for the purposes of promoting the building or repairing of churches, or of houses for the residence of ministers, and of providing churchyards or (with certain restrictions) glebes. If such gift exceed the prescribed limits, it is not therefore void: the lord-chancellor may reduce it.
The greater part of this note is extracted from 2 Hoveden on Frauds, 308, 312.Chitty.
* 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 a license from the crown is still necessary when å college purchases an advowson. Many colleges are provided with licenses to purchase to a specified extent, and they have been held valid.
A corporation has, from its nature, a right to purchase lands though the charter contains no license to that purpose. And in this respect the statutes of mortmain have not altered the law, except in case of superstitious uses. But since those statutes, it is necessary, in order to enable a corporation to retain lands which it has purchased, to have a license for that purpose: otherwise, in England, the next lord of the fee may enter within a year after the alienation; and, if he do not, then the next immediate lord, from time to time, has half a year to enter; and for default of all the mesne lords, the king takes the land so aliened forever. But in Pennsylvania, where there are no mesne lords, the right would accrue immediately to the commonwealth. Leazure vs. Hillegas, 7 S. & R. 313. The statutes of mortmain have been extended to that State only so far as they prohibit dedications of property to superstitious uses and grants to corporations without a statutory license. * Methodist Church vs. Remington, 1 Watts, 218. “We have not,” says Chancellor Kent, “in this country re-enacted the statutes of mortmain, or generally assumed them to be in force; and the only legal check to the acquisition of lands by corporations consists in those special restrictions contained in the acts by which they are incorporated, and which usually confine the capacity to purchase real estate to specified and necessary objects, and in the force to be given to the exception of corporations, out of the statute of wills, which declares that all persons other than bodies politic and corporate may be devisees of real estate.” 2 Kent's Com. 282. -SHARSWOOD.
5 Or by recovery. 1 Co. 14, b. But not by lease and release, bargain and sale, &c.; as no estate passes by these 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, corr. mon, &c., does not amount to a forfeiture, (Co. Litt. 251, b.;) but a fine in fee of such an estate will be a forfeiture, (ibid. ;) but the fine of an equitable tenant for life will not work a forfeiture. 1 Prest. Conv. 202. See in general, as to this description of forfeiture, 1 Saund. 319, b. &c.—ARCHBOLD.
6 But the abolition of fines and recoveries, and the recent enactment (8 & 9 Vict. c. 106, 8. 4) that no feoffment shall have a tortious operation, have, it seems, made this cause of forfeiture impossible.-KERR.
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 alienės in fee, this is no immediate forfeiture to the remainderman, but a mere discontinuance (as it is called)(w) of the estate-tail, which the issue may afterwards avoid by due course of law:(x) 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.(y) 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.
Equivalent, both in its nature and its consequences, to an illegal alienation by the particular tenant, is the civil crime of 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, (2) upon reasons most apparently feodal. And so likewise, if in any court of record the *276]
*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 tenant 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;(6) such behaviour amounts to a forfeiture of his particular estate.
III. Lapse is a species of forfeiture, whereby the right of presentation to a church accrues to the ordinary by neglect of 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) c) 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.(h)
The term, in which the title to present by lapse accrues from the one to the other successively, is six calendar months, (C) (following in this case the computation of the church, and not the usual one of the common law,) and this *277]
*exclusive of the day of the avoidance.(k). But if the bishop be both
patron and ordinary, he shall not have a double time allowed him to collate in ;(1) for the 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 elapsed, yet his presentation is good, and the bishop is bound
(W) See book iii. ch. 10.
Litt.2595, 596, 597. (v) Co. Litt. 283.
Finch. 270, 271.
Bract. l. 4, t. 2, c. 3.
(©) See page 23.