Power of the licenses con firmed. 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 crown to grant hold any lands or tenements in perpetuity; which prerogative was declared and confirmed by the statute 18 Edw. 3, st. 3, c. 3. But, as doubts were conceived at the time of the revolution how far such license was valid (u), since the king had no power to dispense with the statutes of mortmain by a clause of non obstante (x), which was the usual [* 444] course, though it seems to have been unnecessary (y): and as, by the gradual declension of mesne seignories through the long operation of the statute of Quia emptores, the rights of intermediate lords were reduced to a very Stat. 7 & 8 Will. 3, small compass; it was therefore provided by the statute 7 & 8 Will. 3, c. 37, that the crown for the future at its own discretion might grant licenses to aliene or take in mortmain, of whomsoever the tenements may be holden. c. 37. Temporary suspension of the statutes of mort main, by 1 & 2 P. & M. c. 8. 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. & 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 long afterwards, for a much better purAugmentation of pose, the augmentation of poor livings, it was enacted by the poor livings. statute 17 Car. 2, c. 3, that impropriators might annex the great tithes to the vicarages; and that all benefices under 1007. per annum might be augmented by the purchase of lands without licence of mortmain in either This statute is no longer in force (z); but other statutes Queen Anne's Bounty. having the like effect have been passed, the numerous details of which cannot here be dealt with (a). Provisions with a similar object have been since made in favour of the governors of Queen Anne's Bounty (b). * In modern times many large charitable and other corporations [* 445] have been founded or incorporated by act of parliament; whenever this is done, and the necessities of the case require it, power is always given by the act to hold lands without licence in mortmain, that is, so as to exempt them from the penalty of forfeiture (c). By the act now in force, under which incorporated companies for trading and other purposes are formed, power is given to them to hold lands (d). case. Such is the law of mortmain which is now in force as regards the forfeiture which is incurred. We see that the penalty arises from the land being vested (u 2 Hawk. P. C. 391. See Harg. Co. Litt. 99 a, n. (1). (x) Stat. 1 W. & M. st. 2, c. 2. See also 16 Rich. 2, c. 5; 37 Hen. 8, c. 4; 1 Edw. 6, c. 14; 1 Geo. 1, c. 55; 4 Rep. 104; Bac. Ab., Charitable Use (D.); West v. Shuttleworth, 2 Myl. & K. 684; 1 Jarm. Wills, 189. (y) Co. Litt. 99. (2) 1 & 2 Vict. c. 106, s. 15. (a) See 29 Car. 2, c. 8; 1 & 2 Will. 4, c. 45; 1 & 2 Vict. c. 107; 3 & 4 Vict. c. 113; 4 & 5 Vict. c. 45; 5 & 6 Vict. c. 26; 19 & 20 Vict. c. 50. (b) Stat. 2 & 3 Ann. c. 11; 43 Geo. 3, c. 107; 2 & 3 Vict. c. 49; 3 & 4 Vict. c. 20. See, also, as to the powers of these, 17 Geo. 3, c. 53; 21 Geo. 3, c. 66; 7 Geo. 4, c. 66; and 1 & 2 Vict. c. 23. (c) As an instance, we may refer to the act incorporating one of the oldest asylums of London, the Asylum for Female Orphans, 39 & 40 Geo. 3, c. lx. It is needless to do more than mention that the powers of railways and other similar companies always depend upon their special acts of parliament. (d) 25 & 26 Vict. c. 89, s. 18. in a corporation without licence to hold, and it rests entirely upon the ancient laws which we have noticed. But though not falling within the proper limits of our present subject, it will be convenient here to notice other laws commonly called mortmain laws, which have been made by the authority of parliament, closely allied with those which we have been exhibiting, and arising out of the same principles of policy, which have imposed restrictions upon the alienation of land, not unlike those we have been describing, but which have their effect, not by creating a liability to forfeiture but by declaring the attempted alienation, when made in contravention of their rules, entirely void for all intents and purposes. Statute against superstitious uses, 23 Hen. 8, c. 10. It was observed that, during the times of popery, lands were frequently 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 considered, and with reason, equally pernicious in a well-governed state as actual alienations in mortmain; therefore the statute 23 Hen. 8, c. 10, * declared that [* 446] all future grants of lands for any of the purposes aforesaid, if granted for any longer term than twenty years should be void. By virtue of this Act the land reverts at once to the grantor (e). This statute of Hen. VIII. specifies the superstitious uses which were to invalidate a grant of land, but there is no statute which makes superstitious uses in general void (ƒ): nevertheless, by the general policy of the law, they were, and are not allowed to have effect (g). But this general policy did not, in the opinion of the judges, extend to render void a gift of lands made for charitable purposes (h), even though they be thereby impressed with trusts to continue in perpetuity. Lands given to a corporation for charitable purposes were, of course, liable to forfeiture, but the gift was valid as against the donor; and, therefore, a man might give lands for the maintenance of Charitable uses. a school, an hospital, or any other charitable uses, subject only to the risk (which in modern practice proved to be nothing) of the crown insisting upon the forfeiture of the lands vested in the corporation. But 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 which had the grounds of the statutes of mortDevises to chari- main; it is therefore enacted by the statute 9 Geo. 2, 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 [* 447] 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 (i). The two universities, their colleges, and the scholars upon the foundation of the colleges of Eton, Winchester, and Westminster, are table uses prohibited. 9 Geo. 2, c. 36. (e) See Porter's Case, Rep. 22a, 23a. (f) Cary v. Abbott, 7 Ves. 495. (g) See Martindale v. Martin, Cro. Eliz. 288; Porter's Case, ubi sup. (h) Re Blundell's Trusts, 30 Beav. 360. Porter's Case, ubi sup. As to what are charitable uses, see 43 Eliz. c. 4. (i) The act is now commonly, though inaccurately, described as the Mortmain Act. excepted out of this act (k). Other public charities have, by subsequent statutes, been exempted from the operation of the act, amongst which are the British Museum (1), Greenwich Hospital (m), and the Foundling Hospital (»). It has been thought; and with seeming correctness, that the exemption does not release the incorporated charities from the old restraints of the mortmain laws, so that a licence of the crown to hold lands remains still necessary when a college or one of the other incorporated charities purchases lands or an advowson without having such license (o). The act contains an exception as regards the necessity for a year to elapse from the date of the conveyance to the death of the grantor, when the conveyance is bona fide for an adequate and valuable consideration, though the other requisites, such as inrolment, are to be observed in this as in other cases (p). The effect of these statutes upon a gift which contravenes their provisions is to render it simply void; the land, notwithstanding the attempted alienation, remains the property of the donor, and vests in him or his * heir-atlaw, or (if the gift be by a will taking effect under the present wills act) residuary devisee if any (q). [* 448] Opinion upon the subject of conveyance of lands for charitable uses has somewhat changed since the last century, and many acts have been passed, not however wholly repealing the act of Geo. II., but giving facilities for rectifying defects in titles, which have arisen through disregard of it (r). Moreover some of the provisions of the act as to the conveyance being by indenture, and as to the non-reservation of any benefit for the donor, have been altered (s). Many special exceptions also have been introduced by the legislature diminishing the number of cases to which the act applies. Thus conveyances for sites of schools limited to two acres, are to be valid though only one witness attests them; and the death of the donor within the twelve months does not invalidate them (t). Similar relaxations have been permitted in favour of literary, scientific, and other institutions of the like character and for public recreation grounds under 22 Vict. c. 27 (u). The church building acts also contain provisions for the same purpose (x). (333) (k) Originally this exemption was subject to a proviso, limiting the number of advowsons which a college might possess, but the limitation was afterwards repealed by 45 Geo. 3, c. 101. (1) 5 Geo. 4, c. 39. (m) 10 Geo. 4, c. 25. (n) 11 Geo. 2, c. 29; see Shelf. on Mortmain, 49. (0) Some colleges are provided with prospective licenses to purchase in mortmain to a specific extent, which has been found sufficient. Indeed, inasmuch as the crown has never in recent times been known to insist upon a forfeiture in these cases, the point noticed in the text is but of slight importance. (p) See Price v. Hathaway, 6 Mad. 304; also 9 Geo. 4, c. 85. (q) See Adlington v. Cann, 3 Atk. 155; Doe d. Burdett v. Wrighte, 2 B. & Ald. 710. (r) 9 Geo. 4, c. 85; see 24 Vict. c. 9; 25 Vict. c. 17; 27 Vict. c. 13; 29 & 30 Vict. c. 57. (8) 24 Vict. c. 9. (t) 4 & 5 Vict. c. 38, explained and extended by 7 & 8 Vict. c. 37; 12 & 13 Vict. c. 48; 14 & 15 Vict. c. 24; 15 & 16 Vict. c. 49; 26 & 27 Vict. c. 16. Inrolment is necessary. (u) 17 & 18 Vict. c. 112. (x) 6 & 7 Vict. c. 37; 14 & 15 Vict. c. 97; 17 & 18 Vict. c. 32; 18 & 19 Vict. c. 127. (333) "It was incident at common law to every corporation to have capacity to purchase and alien lands and chattels, unless they were specially restrained by their charters, or by statute. Independent of positive law, all corporations have the absolute jus disponendi of lands and chattels, neither limited as to objects nor circumscribed as to quantity.” 2 Kent's Com. 281. We have not 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 corpo 2. Secondly, alienation to an alien is also a cause of forfeiture to the crown of the land so alienated. For an alien cannot hold lands, although he may take them as grantee, and upon inquisition and office found the crown may take them by virtue of the royal prerogative. In this, however, as in other cases, the title is good against all but the crown. And if the alien before office found grant the lands over to a subject, the latter receives a perfectly valid title, with the single exception of the same liability to an inquisition and consequent forfeiture (y). * [* 449 ] From this general forfeiture of lands vested in an alien we must except the cases where they are held for a term not exceeding twenty-one years by a friendly alien for the purpose of any trade, business, or manufacture (z). III. Forfeiture of tenure. III. A third instance of forfeiture is from its infrequency rather within the domain of theory than that of practice. It occurs upon the civil crime of disclaimer; as, where a tenant who holds of any lord neglects to by disclaimer 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 (a), upon reasons most apparently feudal. And so likewise there is a forfeiture if in any court of record the particular tenant does any act which amounts to a virtual disclaimer. It is said that if he claims any greater estate than was granted him at the first infeudation, or takes upon himself those rights which belong only to tenants of a superior class (b); or if he affirms the reversion to be in a stranger, by accepting his fine, attorning as his tenant, collusive pleading, and the like (c); such behaviour amounts to a forfeiture of his particular estate. It has been held that a lessee fraudulently setting up a title hostile to that of his landlord, or assisting in so doing, *forfeits his lease (d). But [* 450 ] what amount of conduct other than disclaimer by record will in the present day be considered a ground of forfeiture in the absence of contract, it Mere payment of rent to a stranger is no forfeiture (e), and is difficult to say. (y) Ante, p. 400; Co. Litt. 2 b; 5 Rep. 52; 1 Leon. 47. As to copyholds, see 1 Mod. 17. (z) 7 & 8 Vict. c. 66, s. 5. The law originally was that no alien could hold lands in any case. It was then relaxed in favour of merchants for the sake of commerce. The history of the law on this point will be found in 1 Rapin's Hist. 361; Bac. Ab. Aliens. But foreign handicraftsmen and artificers were by no means looked upon with the same favour as was extended to merchants. See 1 Rich. 2, c. 9. And by 32 Hen. 8, c. 16, s. 18, a lease rations 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." Ib. 282. IV. 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 IV. Forfeiture or lapse on neglect to present to a vacant church. metropolitan (g) 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 (h)) of the council of Lateran (i), which was in the reign of our Henry the Second, when the bishops first began to exercise universally the right of institution to churches (k). And therefore, where there is no right of institution, there is no right of lapse: so that no donative can lapse to the ordinary (7), unless it has been augmented by the Queen's bounty (m). But no right of lapse can accrue, when the original presentation is in the crown (n). [* 451 ] Lapse after six months' default. *The term, at the expiration of which the title to present by lapse accrues from the one to the other successively, is six calendar months (o). But, if the bishop be both patron and ordinary, he shall not have a double time allowed him to collate in (p); for the forfeiture accrues by law, whenever the negligence has continued six months in the same person. And also if the bishop does not collate his own clerk immediately to the living, and the patron presents, though after the six months are lapsed, yet his presentation is good, and the bishop is bound to institute the patron's clerk (q). For as the law only gives the bishop this title by lapse, to punish the patron's negligence, there is no reason that, if the bishop himself be guilty of equal or greater negligence, the patron should be deprived of his turn. If the bishop suffer the presentation to lapse to the metropolitan, the patron also has the same advantage if he presents before the archbishop has filled up the benefice; and that for the same reason. Yet the ordinary cannot, after lapse to the metropolitan, collate his own clerk to the prejudice of the archbishop (r). For he had no permanent right and interest in the advowson, as the patron has, but merely a temporary one; which having neglected to make use of during the time, he cannot afterwards retrieve it. But if the presentation lapses to No lapse against the king, prerogative here intervenes and makes a difference; and the crown. the patron shall never recover his right till the king has satisfied his turn by presentation: for nullum tempus occurrit regi (s). And therefore it may seem as if the church might continue void for ever unless the king shall be pleased to present, and a patron thereby be absolutely defeated of his *advowson. But to prevent this inconvenience, the law has lodged [* 452 ] a power in the patron's hands of as it were compelling the king to (g) Boswel's Case, 6 Rep. 48. (h) 2 Roll. Abr. 363, pl. 10. (i) Bracton, 1. 4, tr. 2, c. 3. (k) Ante, p. 93. () Bro. Abr. tit. Quar. imped. Britton v. Wade, Cro. Jac. 515. (m) Stat. 1 Geo. 1, st. 2, c 10, ss. 6, 7. (n) Stat. 17 Edw. 2. c. 8; 2 Inst. 273. (0) Catesby v. Bishop of Peterboro, Cro. Jac. 166; 6 Rep. 62; 2 Inst. 361; Registr. 42; R. v. Archbishop of Canterbury, Cro. Car. 355; ante, p. 275. As to whether the six months are exclusive of the day of the avoidance, see 15 Ves. 255. (p) Gibs. Cod. 769. (q) 2 Inst. 273. (r) 2 Roll. Abr. 368. (8) Dr. & St., D. 2, c. 36; R. v. Archbishop of Canterbury, Cro. Car. 355. |