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lands in right of such their newly-acquired signiory, as immediate lords of the fee. But, when these dotations began to grow numerous, it was observed that the feodal services, ordained for the defence of the kingdom, were every day visibly withdrawn; that the circulation of landed property [ * 270 ] from man to man began to "stagnate ; and that the lords were curtailed of the fruits of their signiories, their escheats, to prevent wardships, reliefs, and the like; and therefore, in order to Mc'est'o^rdi- prevent this, it was ordained by the second of king Henry weremadeevoid, III.'s great charters (g), and afterwards by that printed in felted.6 a" °r our common statute-books, that all such attempts should
be void, and the land forfeited to the lord of the fee (A). This ordinance But. as this prohibition extended only to religious houses,
being also evad- ... . / , J • , i , ,
ed, produced bishops and other sole corporations were not included there
the statute at .' * * i o- -n i
reiigioni, 7 m; and the aggregate ecclesiastical bodies, (who, bir kAward Coke observes (i), in this were to be commended, that they ever had of their counsel the best learned men that they could get,) found many means to creep out of this statute, by buying in lands that were bona fide holden of themselves as lords of the fee, and thereby evading the forfeiture; or by taking long leases for years, which first introduced those extensive terms, for a thousand or more years, which are now so frequent in conveyances. This produced the statute de reliyiosis, 7 Edw. I.; which provided that no person, religious or other whatsoever (6), should buy, or sell, or receive under pretence of a gift, or term of years, or any other title whatsoever, nor should, by any art or ingenuity, appropriate to himself, any lands or tenements in mortmain:
(g) A. D. 1217. cap. 43. edit. Oxon. pit tenendam: si quit autem de eaten
(A) Non licet alinii de catero dare terram suam domui religiosa tic de
terram suam alicui domui religiosa, derit, et super hoc convincatur, donum
ita quod Mam resumat lenedam de mum penitus cassetur, et terra ilia
eadem domo o' nee liceat alicui domui domino sua illius feodi incurratur.
religiosa terram alicujus sic accipere, Mag. Cart. 9 Hen. III. c. 36.
quod tradat Mam ei a quo ipsam rece- (i) 2 Inst. 75.
(6) These words, according to ordi- of 15 Rich. II. c. 5, that until the pasnary construction, seem sufficient to sing of the last named act, guilds and include all corporations, sole, aggre- fraternities, as well as mayors, bailiffs, gate, ecclesiastical, or temporal; and and commons of towns having a perso Lord Coke understood them. (I petual commonalty, and others having Inst. 2 b.) But, notwithstanding the offices perpetual, were not considered extensive terms of the statute of Edw. within the restrictions of mortmain. I., it may be inferred from the statute
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 com. ations 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. 1.2nd. 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 (I), 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
(*) Cap. 33. (/)2 Inst. 501. (m) Cap. 3.
(7) See post, chapter 2I , sect. 4, p. common recoveries have been abolish
357, and the appendix to this volume, ed by the statute of 3 & 4 Gul. IV. c.
No. 5. "4.
Since this note was first published, (8) It is, perhaps, not quite accu
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 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 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 introduction of uses and trusts, the foundation of modern conveyancing. But, unfortunately for the inventors themselves, 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
rate to say, that the statute 27 Edw. I.
where the writ in question is spoken of as an usual one : though the statute just named enacted, that such writ should not, thenceforward, be granted, unless upon petition presented in full parliament. This last provision, however, is abrogated by the act of 7 & 8 Will. III. c. 3, stated post, in page 273.
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
, . .. „ . - , „ still grant li
crown, by granting a licence or mortmain, to remit the for- cences to aiiene feiture, so far as related to its own rights; and to enable &<\ inmort-' 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 licence was valid (»), 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 emplores, 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 aliens or take in mortmain, of whomsoever the tenements may be holden(9).
After the dissolution of monasteries under Henry VIII. Bypass. & though the policy ot the next popish dis affected to tutesofmort
'. J . cii ,, • main were sus
grant a security to the possessors ot abbey lands, yet, in nendedfor 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 long afterwards, for a much better purpose, the augmenta- tion^poora tion of poor livings, it was enacted by the statute 17 Car. II. lvmga' c. 3, that appropriators may annex the great tithes to the vicarages; and that all benefices under 1001. per annum
(n) 2 Hawk. P. C. 391. (o) 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 anything 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 statute 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
(10) 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 v. Parsons, 8Ves.l91 j Attorney General v. Munby, 1 Meriv. 345; Coriyn v. French, 4 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. (Grirnmet v. Grimmet, Ambl. 212; S. C. 1 Dick. 251 ; Kirkbankv. Hudson, 7 Price, 217 j Curtis v. Hut ton, 14 Ves. 539; Attorney General v. Goddard, 1 Turn. Sc Russ. 350.) But,
where the testator has used 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 v. George, 2 Ves. & Bea. 378; Paul v. Compton, 8 Ves. 380; Parsonst. 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 v. Case, 1 Ves. jun. 550.)
In the Attorney General v. 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 Hard.