Page:The New International Encyclopædia 1st ed. v. 14.djvu/46

* MORTMAIN. 34 MORTMAIN. of the lord to becouic llic guardian of the infant heir of his tenant. (c) Maiiiniji-. — The right of the lord to dispose of tlie tenant's daughter in marriage, (d) Esclwal. — The riglit of tlie lord to the freehold upon the death of the ten- ant without heirs. It is apparent that the acquisition of land by an ecclesiastical corporation which could not die or contract marriage, and which had not any of the other attributes of a natural person, struck at the very basis of the feudal system, and was regarded with jealousy by the great lords and civil otlicers of the Crown. The icsult was a series of legislative enactments, extend- ing over a period of nearly six hundred years, having for their purpose the restraint of aliena- tion in mortmain. No sooner did the will of the State find expression in appropriate legis- lation for this purpose than the powerful inihi- enee of the Church sought to evade or nullify it by julicial interpretation or by resort to legal fictions invented by skillful lauyers and urged by thoni upon the courts with such success that ultimately new legislation became necessary. To this liistoric struggle between the Church and the landed aristocracy are attributable many of the peculiarities of the common law of real property. The earliest statute relating to the subject after the fall of the Western Emi)ire was an edict of the Emperor Frederick Barbarossa in 1158 prohibiting conveyances to church corpora- tions. In England there have been enactcil in all twenty-one statutes affecting the i)ower to alienate in mortmain. The earliest of these (a provision contained in the Magna Charta, eh. 43, that there should l)e no transfer of land to church corporations by a tenant without the consent of his lord) seems to have fallen into disuse or to have been evaded by convey- ances direct to the oliicers of the religious houses, who held the property for the benefit of such houses. The next statute of importance, and the first to curb eflectivcly the ac<iuisition of land by the ecclesiastical corporations, was the statute De Rcligiosis (7 Edw. I., Stat. 11.^ ch. 13), passed in 127n. The preamble of this interesting piece of legislation reads as follows : "Uhcre of late it was provided that religious men should not enter into the fees of any without license and will of the chief lord of whom such fees l)e holclcn imnieiliately, and notwithstand- ing such religious men have entered as will into their own fees as into the fees of other men, receiving them of the gift of others, whereby the services that are due of such fees and which at the Ix'ginning were provided for defense of the realm arc wrongfully withilrawn. and the chief lords do lose their" escheats of the same — " etc. This statute made all alienations in mortmain imlawfnl, and made the pro i-<ion cirective by en- acting that all such conveyances should work a forfeiture to the lord of the land attempted to be conveyed. The lawyers of the time, however, soon devised a method for evading the statute by the use of eonunon re<-overy (q.v. ). Tliis development in the I'ommon law was met by a new legislative enactment (13 Edw. I., ch. ■'52). in liS.'i, which forbade alienation of lands in mortmain by common recovcrj', and attached the same penalty to such alienation as in case of the conveyances forbidden by the Statute De Keligiosis. The Statute l,)uia Emptores (IS Edw. I., ch. 1 ) . which removed some of the common- law restraints upon alienation, expressly excluded from its o[H'ration all alienation in mortmain. These statutes in time were evaded by the practice of conveying lands to a layman to be by him held for the use or benefit of an ecclesi- astical corporation, which ol)Iigation came to be enforced by the Chancellor. The use was the forerunner of the modern trust and the basis of eii'iity jurisdiction over trusts. And it is to the great struggle over alienation in morluiain more than to any one other factor that the growth of the modern law of trusts is due. In 1391 this practice was forbidden on pain of forfeiture, unless such conveyance to uses was licensed by the King (15 Richard II., ch. 5). The Statute of 'ills, allowing testators to dispose of their property by will, did not in terms permit the testator to devise real estate to a corporation. By judicial interpretation, how- ever, the power was established to devise lands to corporations for charitable inirposes. From this period down almost to the present time statutes have been enacted modifying or further restraining the power of alienation to corporations, whenever judicial interpretation or the ingenious devices of lawyers made such enactments nec'essary. The statute 9 Geo. II., ch. 36 (173G), is note- worthy in that it shows that the policy on which the Statute of ^Mortmain had hitherto been based had then changed somewhat. This statute, re- citing that "'public mischief had greatly increased by many large and improvident dis])ositions made by languishing jind dying persons to chari- table uses, to take place after their deaths, to the disinhersion of their lawful heirs," enacted that in future no lands or sums of money to be laid out in land should 1k! given to any person or body unless such gift or conveyance should be made or executed in presence of two wit- nesses twelve numths before the death of the donor or grantor, and be enrolled in the Court of Chancery within six months after the execu- tion. Under this act. therefore, a person on his dcathlK'd cannot in England give land, or money to buy land, for a charitable purpose. It can only be done in the life of the donor at least twelve months before his death, and the property must be completely alienated so that he has no further control over it. The deed must have a present operation, and must not reser"o any life interest to the donor; it must be done at "once and forever. The policy of this statute has sometimes been questioned, and several well- known modes of evading the statute have been adopted from time to time. .Ml the English statutes of mortmain were revised and consul i<lated by the statute 51 and 5-2 Victoria, ch. 42. In general the statute still restricts alienation to corporations, but makes nuinerotis cxce|itions in favor of gifts to churches, ]uiblic [jarks. museums, and for literary and scientific ]iurposcs. Gifts to charity by will arc regulated l)y 54 and 55 Victoria, ch. 73. which in general ]iermits stich gifts of land to charities if the land l)e sold within one year from the tes- tator's death. Throughout the period of mort- main legislation it was possible for the Crown to grant a mortmain license enabling a cor-
 * appropriating and buying them, and sometimes