MORTMAIN*. 



MORTMAIN'. 



791 



chief lord* (capHalium dominorum) of whom uch fees are immediately 

 held ; and whereas religious men hare entered u well into fee* of their 

 own u those of others, by ppronriattng them to their own use and 

 buying them, and sometimes rweivingKhem of the Rift* of other., by 



which means the services due from such fees, and which were originally 

 provided for the defence of the realm, are unduly withdrawn and the 

 chief lords lose their escheats of the name," Ac. The statute thru for 

 bids any religion* person or any other to buy .or sell land* or tene- 

 ments, or under colour of a gift or term of years, or any other title 

 whatever, presume to receive from any one, or by any other means, 

 art, or contrivance, to appropriate to himself lands or tenements, so 

 that such lands or tenements come into mortmain in any way (ad 

 mamttm morluam dtrrnianl}, under pain of forfeiture of the same. 

 The statute then provides, that if it be violated, the lord of whom the 

 lands are holden may enter within a year ; or if he neglect to enter, 

 the next lord may enter within half a year ; and if all the chief lords 

 of such fees, being of full age, within the four seas, and out of prison, 

 neglect to enter, the king may enter. 



The general notion of mortmain may be collected from the words of 

 this statute, the term being used to express Linda belonging to any 

 corporate body, ecclesiastical or temporal, sole or aggregate. Various 

 explanations have been offered as to the reason why lands of this 

 description were said to be in mortmain, or in mariua manu ; that is, 

 in a dead hand. Under the feudal system, lands held by any corporate 

 body or person might not inappropriately be said to be in a dead hand 

 as to the lord of the fee; for as a corporation has perpetual continuance 

 and succession, the lord lost the profits in his lands which, under the 

 strict system of tenures, he derived either .from the services of the 

 tenant, while alive, or from the death of the tenant and other circum- 

 stances incident to such event. Accordingly, the best explanation of 

 the meaning of this term seems to be that offered by Coke, that " the 

 lands were said to come to dead hands as to the lords, for that by 

 alienation in mortmain they lost wholly their escheats, and i- 

 their knights' services for the defence of the realm, wards, marriages, 

 reliefs, and the like, and therefore was called a dead hand, for that a 

 dead hand yieldeth no service." Similarly, the old mortuum radium 

 seems to have been so called because the land in pledge was for the 

 time dead to the pledger. [MORTGAGE.] 



Before the 9th Hen. III. c. 36 was passed, a man might give or sell 

 his lands to religious as well as any other persons, unless it was for- 

 bidden in the gift of the lands to himself ; and, accordingly, the great 

 lords, on making a grant of land, used to insert a clause preventing the 

 sale or gift to religious and also to Jews : " Licitum sit donatorio rem 

 datam dare vel vendere cui voluerit, exceptis viris religiosis et Jn.l-i<." 

 (Bracton, foL 13.)* 



This statute of Edward I. prevented gifts and alienations between 

 corporate bodies or persons and others ; but it was eluded by a new 

 device, apparently invented by the clergy, and probably most used by 

 the religious houses. These bodies, pretending a title to the land 

 which they wished to acquire, brought an action for it by a / 

 quod reddat against the tenant, who colluxively made default, upon 

 which the religious house had judgment, and entered on the land. 



The statute of the 13 Edward I. (Westminster, 2), c. 32, provided 

 against these recoveries of lands obtained by collusion ; for it wax 

 enacted, that after the default made, it should be inquired wheth. r the 

 demandant had any right in his demand or not ; and if the demandant 

 were found to have no right, the land was declared to be forfeited to 

 the lords mediate and immediate, similarly as was provided by the 

 previous statute of Edward I. Another provision of this statute (c. 88) 

 furnishes curious evidence as to the devices practised for the purpose 

 of eluding the statutes of mortmain. The words of the enactment will 

 best explain the allusion : " Forasmuch as many tenants set up crosses 

 or permit them to be set up on their tenements, to the prejudice of 

 ii,- . l..nl., in onler that the tenants may defend themselves l.y the 

 privileges of Templars and Hospitallers against the chief lords of 

 the fees, it is enacted, that such tenements be forfeited to the chief 

 lord*, or to the king, in the same way in which it in enacted elsewhere 

 with respect to tenements alienated in mortmain '' (oV ttncmtntii alimati* 

 ad mortttam ma*m). 



Various other statutes were passed in the reigns of Edward I. and 

 Edward III. relating to mortmain ; but the next important statute is 

 that of the 15 Richard II., c. 5. As corporations could not now acquire 

 lands by purchase, gift, lease, or recovery, they had contrived another 

 new device, said to be mainly the invention of or mainly practised by 

 ecclesiastical bodies or persons. The device consisted in this : the 

 lands in question were conveyed to some person and his heirs to the 

 use of the ecclesiastical body or person and their or his successors. In 

 thii way the legal esUte was not in the possession of those who could 

 not legally hold it, but in a person who had such legal capacity ; and 

 the UK or profit of the land, the beneficial intercut in it, was secured 

 to th ecclesiastical body or pernon, contrary to the spirit of th- pre- 

 vious statutes, tbmigh not contrary to their expressed provisions. 

 The statute of Richard, after declaring that this use was also mort- 



Ttaer (art. Mortmain ), quoting Coke, who writm thli> pawnifo " I.lritnm 

 >y, " Own if it .hmild not hr WoMfe, donrr." Surh bl.m.l. r 

 bes (voided by lookln* *t the original, or might hirt been corrected 



Ms* ssn. 



nifbt ksv* 



main, further declared all such conveyances to be \ it the 



lords might enter on lands so conveyed, in the maim. 

 the statute l>e Religiosis. This distinction of the ownership of hind 

 into the legal and beneficial was undoubtedly derived by the - 

 from the like distinction in the Roman law between r/uirilari" 

 i,,,iii irinn ownership, which is briefly and distinctly expressed by 

 ;i. 40). 



Th.mnli the statute Do Religiosis was in its terms comprehensive 

 enough to include all alienations to corporate bodies or persons, it is 

 clear that this statute was mainly directed against the clergy, l...th 

 regular and secular. The ecclesiastical corporations were more n 

 rous than any other, and had been more active in getting land 

 their.handii. This statute of Richard II., however, expressly e: 

 the statute De Religiosis to lands purchased to the use of guilds or 

 fraternities, from which it has been inferred that the doctrin- of mort- 

 main had not, before the date of this statute, applied to gni 

 fraternities. The statute De Religion!* is by this statute of Rieh.-tnl II. 

 expressly declared to apply also to what we now call nmiii.-ij. .i 

 rations, and the statute puces such bodies in all respects on the same 

 footing, as to the purchase of lands, with " people of religion.' li 

 such bodies as these had been considered within the statute De 

 Religiosis, it seems clear from the statute of Richar.l II. tli.-it Uu-ir 

 acquisitions of land had only recently become of such magnitude as to 

 make it seem expedient to make a special declaration by statute as to 

 h. in. 



A statute of Henry VIII. (23 Henry VIII., c. 10), commonly called 

 an Act against superstitious uses, is perhaps hardly a statute against 

 mortmain in the strict sense of the term. The statute enacted that 

 feoffments, fines, recoveries, and other estates, made of lands and 

 hereditaments to the use of parish churches, chapels, guilds, fraternities, 

 commonalties, 4c., erected and made of devotion or by common consent 

 of the people without any corporation, or to uses for perpetual obits, 

 or a continual service of a priest, were declared to be void as to such 

 gifts as were made after the 1st of March in the year in which the 

 statute was passed, for any term exceeding twenty years from th- 

 creation of such uses. From the words " by common consent of the 

 people, without any corporation," it can hardly be inferred that a 

 number of individuals could take in perpetual succession without 

 being incorporated, as some writers suppose ; for " to take by per- 

 petual succession without being incorporated "involves a contradict in. 

 Nor can the statute be construed as admitting by implication such a 

 power of perpetual succession in unincorporated individuals. The 

 statute destroys all such estates and interests in land as in any way or 

 by any persons were held to the use of the establishments or collections 

 of individuals mentioned and described in the statute. 



The subsequent statutes passed in the reign of ll.-nry A' 1 1 1. rJ7 

 11,.,. VIII., c. 28; 31 Hen. VIII., c. 13; 37 Hen. VIII , c. !>. t- 

 with the statute passed in the first year of Edward \ 'l.ii Kdw. VI.. 

 c. 14), put an end to religious houses and many other establish- 

 which had been the special objects of the statutes of mortmain and 

 superstitious uses. The consideration of what are now legally called 

 superstitious uses properly comes under the head of USES, S- 

 STITIOVS AXD CHARITABLE. 



The king could always grant a' licence to alien, in mortmain, or, moro 

 correctly speaking, he could remit the forfeiture consequent 

 alienation, so far at least as concerned himself; but such rein 

 could strictly only affect his own right*, and not those of the mesne 

 lords, unless they also consented. It was the practice, before the king 

 granted his licence, to sue out a writ of ad quod ilamnum,in order tli.it 

 inquiry might be made and the king informed what damage hi 

 or others might sustain from the licence. This practice howcv 

 into disuse long before the statute of the 7 & 8 Will. II!.. .-. :;7, which 

 authorises the king to grant to any person or persons, corporate 

 licence to alien in mortmain, and to purchase and hold in mortmain 

 any hinds or hereditaments, and that such lands shall not be subject to 

 forfeiture. When a licence to hold land* in mortmain is grantc.i. it 

 generally specifies the amoi n>; aids to be h-1.1 



corporation to which it is granted, and if the corporation sho 

 ever found to acquire lands beyond this value, such lands are foi 

 to the lord. 



Until the statute of 9 Geo. II., c. 36, presently mentioned, ti 

 lands could not be aliened in mortmain, yet certain gifts to corporate 

 bodies were held good. Thus, if a fooffment was made to a dean .mil 

 chapter to perform a charitable use (within tl. 

 t;o<l, though they could not be seised to another's use ; and u 

 to a college to a charitable use within this statute was also good. (Ho).., 

 138; 1 Lev., 2R4.) 



The Ktntute of ttteOCko. 1 1., c. :!;, i-< now oommanly, though n,,t, 



ly, called the Statute of Mortmain. It applies ou!\ 

 and Wales. It is entitled "An Act to restrain the Disposition of Lands, 

 y the same become inalienable." The provisions and object of 

 this enactment cannot !>.- otherwise expressed than by Ktating the first 

 section nt full length : " Whereas gifts or alien it i- . tene- 



ment*, or hereditaments, in mortmain, are prohibited or restrained l>y 

 Magna Charta and divers other wholesome laws, as prejn.liii.il to ami 

 the common utility; nevertheless this public mischief has 

 of late greatly increased by many large and ini] .rovident .-. I 

 dispositions made by languishing or dying persons, or l.y "th' r i- i > . 



