CHAPTER XIV.

OF TITLE BY FORFEITURE.

[FORFEITURE is a punishment annexed by law to some illegal act, or negligence in the owner of lands, tenements, or hereditaments, whereby he loses all his interest therein, and they go to the party injured as a recompense for the wrong which either he alone, or the public together with himself, hath sustained.]

Lands may be forfeited by various means; some of which it will not be convenient to discuss in this place, as they are incidental only to subjects of a more general description, belonging to other divisions of the work. But there are three kinds of forfeiture which require a distinct and separate consideration, and to which the present Chapter will consequently be devoted. The first of them accrues by alienation in mortmain; the second, by the wrongful alienation of particular tenants; the third, by wrongful disclaimer.

[1. Alienation in mortmain, in mortuâ manu, is an alienation of lands or tenements to any corporation (a), sole or aggregate, ecclesiastical or temporal. But these purchases having been chiefly made by religious houses, in consequence whereof the lands became perpetually inherent in one dead hand, this hath occasioned the general appellation of mortmain to be applied to such alienations, and the religious houses themselves to be principally considered in forming the statutes of mortmain; in deducing the history of which statutes, it will be matter of curiosity to observe the great address and subtle contrivance of the

(a) Co. Litt. 2 b. As to corporations, vide supra, p. 330.

[ecclesiastics in eluding from time to time the laws in being, and the zeal with which successive parliaments have pursued them through all their finesses; how new remedies were still the parents of new evasions; till the legislature at last, though with difficulty, hath obtained a decisive victory.]

By the common law, a corporation is as capable of purchasing lands as an individual (b); subject to this distinction, that persons corporate take the fee to hold to their successors, instead of their heirs. Yet [it was always, and is still, necessary, for corporations to have a license in mortmain from the crown, to enable them to hold [lands (c); 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 and other feudal profits, by the vesting of lands in tenants that can never be attainted or die. And such licenses of mortmain seem to have been necessary among the Saxons, above sixty years before the Norman conquest (d). But, besides this general license 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 license also (upon the same feudal principles) for the alienation of the specific land. And if no such license was obtained, the king or other lord might respectively enter on the lands so aliened in mortmain, as a forfeiture.] [Yet such were the influence and ingenuity of the clergy, that (notwithstanding this fundamental principle) we find that the largest and most considerable dotations of religious houses] without license Chappened within less than two centuries after the conquest.] But, when these [began to grow numerous, it was observed that the feudal

(b) Case of Sutton's Hospital, 10 Rep. 30; Co. Litt. 2 b.

(c) F. N. B. 221. It should be observed, however, as to the antiquity of the principle, that a doubt is expressed by a writer of great authority,

whether before Magna Charta, any restraint was put by the common law upon alienations in mortmain: vide Hallam's Middle Ages, vol. ii. p. 321, 7th edit.

(d) Selden, Jan. Angl. 1. 2, s. 45.

[services, ordained for the defence of the kingdom, were every day visibly withdrawn; and that the lords were curtailed of the fruits of their seigniories, their escheats, wardships, reliefs, and the like; and therefore in order to prevent this (e), it was ordered by the second of King Henry III.'s great charters (f), and afterwards by that printed in our common statute books, that all such gifts should be void, and the land forfeited to the lord of the fee (g).

But as this prohibition extended only to religious houses, bishops and other sole corporations were not included therein; and the aggregate ecclesiastical bodies. (who, Sir Edward Coke observes (h), 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 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 religiosis, 7

(e) Blackstone here enumerates as another of the mischiefs, the prevention of which was designed, "that the "circulation of landed property from "man to man began to stagnate;" 2 Bl. Com. 269. Lord Coke, however, in 2 Inst. 75, lays it down (in conformity with the language of the statute De Religiosis,) that the causes of the law were two, viz. that the services for defence of the realm were withdrawn, and that the lords lost their escheats and the like; et vide Co. Litt. 2 b. Though the holding of lands in mortmain naturally tended to restrain alienation, this does not appear to have formed one of the reasons on which the policy of the law of mortmain was originally founded.

(f) A.D. 1217, c. 43, edit. Oxon.

(g) Non liceat alicui de cætero dare terram suam alicui domui religiosæ, ita quod illam resumat tenendam de eadem domo; nec liceat alicui domui religiosa terram alicujus sic accipere, quod tradat illam ei a quo ipsam recepit tenendam: si quis autem de cætero terram suam domui religiosa sic dederit, et super hoc convincatur, donum suum penitus cassetur, et terra illa domino suo illius feodi incurratur.— Mag. Cart. 9 Hen. 3, c. 36. It is laid down by Lord Coke that this prohibition must be construed to extend as well to the case where the religious house kept the land so conveyed, as where they gave it back to hold of themselves; 2 Inst. 74. (h) 2 Inst. 75.

[Edward I.; which provided, that no person, religious or other whatsoever, 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; 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 alienations 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 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 afterwards became the great assurance of the kingdom, under the name of common recoveries (i). 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 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 feudal 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,

(i) Vide supra, p. 234; 2 Reeves's Hist. Eng. Law, p. 155.

(k) Cap. 33.

[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 recognized(n) by the statute 27 Edw. I. stat. 2, it was farther provided by statute 34 Edw. I., stat.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 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 cestui 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(o), 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 Rich. 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 sta