[tutes had been eluded by purchasing large tracts of land, adjoining to churches, and consecrating them by the name of church-yards, such subtle 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.] The policy of these statutes prohibitory of alienation in mortmain, was afterwards considered as fit to be extended also to the case where lands, though not conveyed to corporate bodies, were given on trust for parish churches, or other institutions, " erected and made of devotion;" for the trustees to carry such uses into effect being generally numerous, and the land belonging, on the decease of each trustee, to the survivors, these gifts operated like gifts in mortmain, properly so called, to the diminution of descents, with their attendant feudal perquisites, and for the same reason, to that of escheats (p). It was consequently declared by the statute, 23 Henry VIII. c. 10, that all future grants of lands for any of the purposes aforesaid, if granted for any longer term than twenty years, shall be void (q). As to the prohibition, however, to alienate to bodies corporate, it is to be observed, that [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 corpora was soon after made on one branch "of such institutions" (those erected for devotion), "the religious houses." Reeves's Hist. Eng. Law, vol. iv. p. 237. (9) On the subject of superstitious uses, see also 1 Edw. 6, c. 14; Porter's case, 1 Rep. 22 b; Adams and Lambert's case, 4 Rep. 104; Da Costa v. De Pas, Ambl. 228; Bac. Ab. Char. Us. (D.) [tion to purchase and hold any lands or tenements in perpetuity; which prerogative is declared and confirmed by the statute 18 Edw. III. stat. 3, c. 3. But as doubts were conceived at the time of the Revolution how far such license was valid (r), since the kings had no power to dispense with the statutes of mortmain by a clause of non obstante(s), which was the usual course, though it seems to have been unnecessary (t), and as by the gradual declension of mesne signiories through the long operation of the statute of Quia emptores, the rights of immediate lords. were reduced to a very small compass; it was therefore provided by the statute 7 & 8 Will. 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 be holden (u).] Nor is this the only relaxation that has taken place in the law of mortmain; [for 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 Ph. 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, it was enacted by the statute 29 Car. II. c. 8(x), (since extended by 1 & 2 Will. IV. c. 45, and 1 & 2 Vict. c. 107(y),) that augmentations of poor livings may be made in such manner as therein provided, free from the restrictions of the statutes of mortmain; and upon the (r) 2 Hawk. P. C. 391; vide Co. Litt. by Harg. 99 a, n. (1). (s) Stat. 1 W. & M. stat. 2, c. 2. (t) Co. Litt. 99 a. (u) Since this statute "the writ of ad quod damnum seems no longer necessary," Coleridge's Blackstone, vol. ii. p. 273, n. (2); et vide Co. Litt. by Harg. 99 a, n. (1). (a) Blackstone here refers to the statute 17 Car. 2, c. 3, but this is now repealed by 1 & 2 Vict. c. 106, s. 15, and other provisions substituted. (y) Et vide 3 & 4 Vict. c. 113, s. 76. same principle, provisions have been likewise made relaxing the laws of mortmain, [in favour of the governors of Queen Anne's bounty (z).] [It hath also been held(a), 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, notwithstanding that statute, for the maintenance of a school, or the sustenance of poor people, or any other charitable uses (b). [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,] "to the disherison of their lawful "heirs (c);" [it is therefore enacted by the statute 9 Geo. II. c. 36(d),] that no lands or tenements, or money to be laid out in the purchase thereof, shall be given or conveyed, or anyways charged or incumbered in trust, or for the benefit of 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 calendar months after its execution; and unless such gift be made to take effect immediately, and be without power of revocation, or other clause for the benefit of the donor, or those claiming under him. (*) 2 & 3 Anne, c. 11; 43 Geo. 3, c. 107; 2 & 3 Vict. c. 49; 3 & 4 Vict. c. 20, s. 5. Et vide 43 Geo. 3, c. 108, as to gifts of land for building or repairing churches or clerical residences, &c.; 6 & 7 Will 4, c. 70, as to gifts of land for school-houses; 55 Geo. 3, c. 147; 56 Geo. 3, c. 52; 1 Geo. 4, c. 6; 6 Geo. 4, c. 8; and 7 Geo. 4, c. 66, as to the purchase and exchange of estates and parsonages by incumbents. (a) Porter's case, 1 Rep. 24. (b) As to charitable uses, vide 43 Eliz. c. 4; 52 Geo. 3, c. 101; Bac. Ab. Char. Us.; British Museum v. White, 2 Sim. & Stu. 596; Da Costa v. Da Pas, Ambl. 228; AttorneyGeneral v. Cock, 2 Ves. sen. 273. (c) As to the objects of the act, see the remarks in Attorney-General v. Stewart, 2 Meriv. 161; Doe v. Lloyd, 5 Bing. N. C. 741. (d) As to this statute, see Doe r. Wrighte, 2 Barn. & Ald. 710; Wright v. Smythies, 10 East, 409; Doe v. Pitcher, 3 M. & S. 410; Doe v. Copestake, 6 East, 328; Doe v. Hawthorn, 2 Barn. & Ald. 96; Doe v. Waterton, 3 Barn. & Ald. 149; Doe v. Howells, 2 Barn. & Adol. 744; Doe v. Lloyd, 5 Bing. N. C. 741; Bac. Ab. Char. Us. (G). Where any conveyance is made contrary to the provisions of the act last-mentioned, not only is the charitable use inoperative, but the conveyance itself is void to all intents and purposes (e). Its provisions, however, are subject to partial exception in the case of stock in the public funds, as to which the statute, instead of a deed executed twelve months before the donor's death, requires that the transfer in the bank books should be made six calendar months, at least, before his death. There is also an exception in the case of all conveyances by way of bonâ fide purchase, and where a full valuable consideration is paid down at the time; for such purchases will be valid, nothwithstanding the death of the vendor within twelve months after the execution of the deed (f). The universities of Cambridge and Oxford, their colleges, and the scholars on the foundations of Eton, Winchester, and Westminster, are also entirely exempted from the operation of the act (g); and a similar exemption has been since extended by 5 Geo. IV. c. 39, to the British Museum. 2. Alienations by particular tenants, when they convey (h) a greater estate than the law entitles them to make, are forfeitures to the person in immediate remainder or reversion (i). [As if tenant for his own life alienes (e) Doe v. Wrighte, 2 Barn. & Ald. 710. (f) As to this exception, see 9 Geo. 4, c. 85. (g) This exemption was originally subject to a proviso, that no college should be at liberty to purchase more advowsons than are equal in number to the moiety of the fellows or students upon the respective foundations; but this restriction no longer exists, having been repealed by 45 Geo. 3, c. 101. (h) It is to be observed that we are speaking here only of the common law conveyance by feoffment, with livery of seisin. We shall see here [by feoffment 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, who is entitled to enter immediately(k). For which the reason seems to be, that the tenant by thus taking upon himself to assert a more extensive right than he derived from the lord of the fee, has violated the feudal compact (which bound him to fidelity), and consequently no longer deserves to retain its benefit(l). He has therefore [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 mere chattel interests; but if tenant in tail alienes] by feoffment [in fee, by the particular tenant, of a thing (1) Vide supra, pp. 166, 181, 195, 241, 275; Gilb. Ten. 38, 39, where, after observing that if the vassal renounced the feud this was always a cause of forfeiture by the old feudal law, the learned author proceeds to remark, that "if the tenant for life "makes a feoffment, or levies a fine, "it is palpably contrary to his oath of it is but just that, upon discovery, "the particular estate should be for"feited and taken from him who has "shown so manifest an inclination to "make on improper use of it. The "other reason is, because the parti"cular 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." 2 Bl. Com. 274. |