very small compass; it was therefore provided by the statute 7 & 8 W. III. c. 37. that the crown for the future at its own discretion may grant licences to aliene or take in mortmain, of whomsoever the tenements may be holden. 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 purpose, the augmentation of poor livings, it was enacted by the statute 17 Car. II. c. 3. that appropriators may annex the great tithes to the vicarages: and that all benefices under 1007. per annum may be augmented by the purchase of lands, without licence of mortmain in either case: and the like provision hath been since made, in favour of the governors of queen Anne's bounty. (q) It hath also been held, (r) 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 for the maintenance of a school, an hospital, or any other charitable 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, and defeat the political ends of the statutes of mortmain it is therefore enacted by the statute 9 Geo. II. 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 indent- [274] ed, 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 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. The two universities, their uses. (7) The term "charitable," in this and the other statutes of mortmain, has a more extensive signification than in common parlance. Charity, in its original sense, denotes all the good affections men ought to bear towards each other; in its more restricted and common sense, relief of the poor. In neither of these senses is it used by the statutes of mortmain. Lord chancellor Cambden defined charity to be a gift to a general public use, which extends to the poor as well as the rich, of which there are many instances in the statute 43 Eliz. c. 4., as for building bridges, &c. Highmore on Mortmain, 60. 121. and cases there cited, 10 Ves. J. 528. 541. See modern cases on this act, 6 Taunt. 359. 2 Marsh. 61. S M. & S. 407. 2 Bar. & A. 96. Copyhold is within the act. 3 B. & A. 149. Lord Hardwicke has declared, since the last mortmain act, that "there is no restriction whatsoever upon any one, from leaving a sum of money by will, or any other personal estate, to charitable uses; provided it be to be continued as a personalty, and the executors or trustees are not obliged, or under a necessity, of laying it out in land, by virtue of any direction of the testator for that purpose." 2 Burn Ecc. L. 509. tit. Mortmain. Money left to repair parsonage houses, or to build upon land already in mortmain, is held not to be within the statute. 1 Bro. 444. Ambl. 373. 651. But a legacy to the corporation of queen Anne's bounty is void: as by the rules of the corporation it must be laid out in land. 1 Bro. 13. By the 43 Geo. III. c. 107. the operation of the mortmain act upon the 2 & 3 Ann. c. 11. s. 4. is removed, and the powers given by that section are restored, so that every person is at liberty to give by deed enrolled, or by will, any real or personal property for the augmentation of queen Anne's bounty. That statute enables the governors to exchange all the lands of an augmented living or cure, and also to apply money in their hands to the procuring of a suitable residence for the minister. And by the 43 Geo. III. c. 108. in like manner any person may give by deed enrolled, or will, executed three months before his death, five acres of land, or personal property to the amount of 500, for the building or repair of any church or parsonage house. If more is given, it may be reduced to that limit by the chancellor. But a glebe of fifty acres can be augmented by one acre only. The bequest of personalty VOL. I. 75 colleges, and the scholars upon the foundation of the colleges of Eton, Winchester, and Westminster, are excepted out of this act: but such exemption was granted with this proviso, that no college shall be at liberty to purchase more advowsons, than are equal in number to one moiety of the fellows or students, upon the respective foundations. 8 2. Secondly, alienation to an alien is also a cause of forfeiture to the crown of land so alienated; not only on account of his incapacity to hold them, which occasions him to be passed by in descents of land, (s) but likewise on account of his presumption in attempting, by an act of his own, to acquire any real property; as was observed in the preceding volume. (t) 3. Lastly, alienations by particular tenants, when they are greater than the law entitles them to make, and devest the remainder or reversion, (v) are also forfeitures to him whose right is attacked thereby. As, if tenant for his own life alienes by feoffment or fine for the life of another, or in tail, or in fee; 10 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. (u) For which there seems to be two reasons. First, because such alienation amounts to a renunciation of the feodal connexion and dependance; it implies a refusal to per[275] form the due renders and services to the lord of the fee, of which fealty is constantly one and it tends in its consequence to defeat and devest the remainder or reversion expectant: as therefore that is put in jeopardy, by such act of the particular tenant, it is but just that, upon discovery, s See pag. 249, 250. u Litt. § 415. to establish a school has been held to be good; as it was not necessary to purchase lands to give effect to the testator's design, for the master might teach in his own house or in the church. 4 T. R. 526. t Book I. pag. 372. v Co. Litt. 251. It has been determined, that this statute extends to the devise of lands to trustees, to be sold and the produce of the sale converted to charitable uses. (Amb. 20. 1 Ves. 108. 2 Ves. 52.) Money secured on mortgage, on turnpike tolls, poor rates, and county rates, and the residue of lands and personalty, disposable by will, in trust, for the benefit of any charitable use, are likewise within the scope of the act. (Amb. 625. 2 Ves. 45. 4 Ves. 431. 542. 10 Ves. 41.) A conveyance only bad in part, under the statute, is not wholly void, but may pass so much of the estate as is not demised in mortmain. 2 Marsh. 61. By 51 Geo. III. c. 115. the king may vest in any person or body politic or corporate, his or their lands, provided they do not exceed five acres, for building any church, chapel, parsonage house, &c.; and by the second section of the same act, any person seised in fee-simple of any manor, &c. may grant five acres of the waste to any parochial church or chapel. By the 55 Geo. III. c. 147. spiritual persons are enabled to exchange the parsonage or glebe houses or lands belonging to their benefices, for others of greater value, or more conveniently situated, and also to purchase and annex lands to become glebe. By the 56 Geo. III. c. 141. ecclesiastical corporations, or spiritual persons being a sole corporation, are empowered to sell lands adjoining to church-yards for the purpose of enlarging them. By the 58 Geo. III. c. 145. the commissioners for building additional churches are authorized to accept and all persons to convey sites for churches, church-yards, &c. And by the 1 & 2 Geo. IV. c. 92. any person or body politic or corporate, in whom any lands, tenements, or hereditaments are vested, subject to any trust for any charitable purpose, may grant or convey the same in exchange for any other lands, &c. Chitty. (8) By the 45 Geo. III. c. 101. this part of the statute is repealed, so that these colleges may now hold any number of advowsons. But it is said a licence from the crown is still necessary, when a college purchases an advowson. Many colleges are provided with licences to purchase to a specified extent, and they have been held valid. (9) An alien may be grantee in a deed, though he cannot hold it, for on office found the king shall have it by his prerogative. Co. Litt. 2. b. 5 Co. 52. 1 Leo. 47. 1 Chitty's Com. L. 169. As to copyhold, see 1 Mod. 17. All. 14. (10) Or by recovery, 1 Co. 14. b. ; but not by lease and release, bargain and sale, &c. as no estate passes by these conveyances, but what may legally pass. The alienation in fee by deed, by tenant for life, &c. of any thing which lies in grant, as an advowson, common, &c. does not amount to a forfeiture, Co. Litt. 251. b.; but a fine in fee of such an estate will be a forfeiture, (ibid.); but the fine of an equitable tenant for life will not work a forfeiture. 1 Prest. Cour. 202. See in general, as to this description of forfeiture, 1 Saund. 319. b. &c. the particular estate should be forfeited and taken from him, who has shewn so manifest an inclination to make an improper use of it. The other reason is, because the particular 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. The same law, which is thus laid down with regard to tenants for life, holds also with respect to all tenants of the mere freehold or of chattel interests; but if tenant in tail alienes in fee, this is no immediate forfeiture to the remainder-mán, but a mere discontinuance (as it is called) (w) of the estate-tail, which the issue may afterwards avoid by due course of law: (x) for he in remainder or reversion hath only a very remote and barely possible interest therein, until the issue in tail is extinct. But, in case of such forfeitures by particular tenants, all legal estates by them before created, as if tenant for twenty years grants a lease for fifteen, and all charges by him lawfully made on the lands, shall be good and available in law. (y) For the law will not hurt an innocent lessee. for the fault of his lessor; nor permit the lessor, after he has granted a good and lawful estate, by his own act to avoid it, and defeat the interest which he himself has created. Equivalent, both in its nature and its consequences, to an illegal alienation by the particular tenant, is the civil crime of disclaimer; " as where a tenant, who holds of any lord, neglects to 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, (2) upon reasons most apparently feodal. [276] And so likewise, if in any court of record the particular tenant does any act which amounts to a virtual disclaimer; if he claims any greater estate than was granted him at the first infeodation, or takes upon himself those rights which belong only to tenant of a superior class; (a) if he affirms the reversion to be in a stranger, by accepting his fine, attorning as his tenant, collusive pleading, and the like; (b) such behaviour amounts to a forfeiture of his particular estate. 13 to III. 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, the metropolitan 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 ances w See Book III. ch. 10. x Litt. § 595, 6, 7. a Co. Litt. 262. y Co. Litt 233. z Finch, 270, 271. (11) If a tenant set his landlord at defiance, and do any act disclaiming to hold of him as a tenant, as, for instance, if he attorn to some other person, no notice to quit will be necessary; for, in such case, the landlord may treat him as a trespasser. Bul. N. P. 96. It has however been held, that a refusal to pay rent to a devisee under a contested will, accompanied with a declaration that he 'the tenant) was ready to pay the rent to any person who was entitled to receive it, was not a disavowal sufficient to dispense with the necessity of a regular notice. Peake's R. 196. If it be known to a landlord that his tenant has disclaimed, though he may compel the perfor mance of covenants by action of covenant, yet he must do so promptly, or take advantage of the disclaimer, and proceed for the forfeiture; for otherwise, as to third persons coming into possession under the tenant, it will be adverse, and the statute of limitations will begin to run. 2 Sch. & Lef. 625. A devisee in fee may by deed, without matter of record, disclaim the estate devised, 3 Bar. & A. 31. ; and semble that thereupon the estate would vest by such disclaimer in the heir. (12) See Mirehouse on Advowsons, 158 to 176. id. index. tit. Lapse. Chilty. tors. This right of lapse was first established about the time (though not by the authority) (c) of the council of Lateran, (d) which was in the reign of our Henry the Second, when the bishops first began to exercise universally the right of institution to churches. (e) And therefore, where there is no right of institution, there is no right of lapse: so that no donative can lapse to the ordinary, (f) unless it hath been augmented by the queen's bounty. (g) But no right of lapse can accrue, when the original presentation is in the crown. (h) The term, in which the title to present by lapse accrues from the one to the other successively is six calendar months (i) (following in this [277] case the computation of the church, and not the usual one of the common law), and this exclusive of the day of the avoidance. (k) But, if the bishop be both patron and ordinary, he shall not have a double time allowed him to collate in; (1) for the forfeiture accrues by law, whenever the negligence has continued six months in the same person. And also if the bishop doth not collate his own clerk immediately to the living, and the patron presents, though after the six months are elapsed, yet his presentation is good, and the bishop is bound to institute the patron's clerk. (m) 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. (n) For he had no permanent right and interest in the advowson, as the patron hath, 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 the king, prerogative here intervenes and makes a difference; and the patron shall never recover his right till the king has satisfied his turn by presentation: for nullum tempus occurrit regi. (o) 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 a power in the patron's hands, of as it were compelling the king to present. For if, during the delay of the crown, the patron himself presents, and his clerk is instituted, the king indeed by presenting another may turn out the patron's clerk; or, after induction may remove him by quare impedit: but if he does not, and the patron's clerk dies incumbent, or is canonically deprived, the king hath lost his right, which was only to the next or first presentation. (p) [278] In case the benefice becomes void by death, or cession through plurality of benefices, there the patron is bound to take notice of the vacancy at his own peril; for these are matters of equal notoriety to the patron and ordinary but in case of a vacancy by resignation, or canonical deprivation, or if a clerk presented be refused for insufficiency, these being matters of which the bishop alone is presumed to be cognizant, here the law requires him to give notice thereof to the patron, otherwise he can c2 Roll. Abr. 336. pl. 10. d Bracton, l. 4. tr. 2. c. 3. take no advantage by way of lapse. (g) 13 Neither shall any lapse thereby accrue to the metropolitan or to the king; for it is universally true, that neither the archbishop or the king shall ever present by lapse, but where the immediate ordinary might have collated by lapse, within the six months, and hath exceeded his time: for the first step or beginning faileth, et quod non habet principium, non habet finem. (r) If the bishop refuse or neglect to examine and admit the patron's clerk, without good reason assigned or notice given, he is styled a disturber by the law, and shall not have any title to present by lapse; for no man shall take advantage of his own wrong. (8) Also if the right of presentation be litigious or contested, and an action be brought against the bishop to try the title, no lapse shall incur till the question of right be decided. (1) IV. By simony, the right of presentation to a living is forfeited, and vested pro hac vice in the crown." Simony is the corrupt presentation of any one to an ecclesiastical benefice for money, gift, or reward. It is so called from the resemblance it is said to bear to the sin of Simon Magus, though the purchasing of holy orders seems to approach nearer to his offence. It was by the canon law a very grievous crime: and is so much the more odious, because, as sir Edward Coke observes, (u) it is ever accompanied with perjury; for the presentee is sworn to have committed no simony. However, it was not an offence punishable in a criminal way at the [279] common law; (w) it being thought sufficient to leave the clerk to ecclesiastical censures. But as these did not effect the simoniacal patron, nor were efficacious enough to repel the notorious practice of the thing, divers acts of parliament have been made to restrain it by means of civil forfeitures; which the modern prevailing usage, with regard to spiritual preferments, calls aloud to be put in execution. I shall briefly consider them in this place, because they devest the corrupt patron of the right of presentation, and vest a new right in the crown. 15 By the statute 31 Eliz. c. 6. it is for avoiding of simony enacted, that if any patron for any corrupt consideration, by gift or promise, directly or indirectly, shall present or collate any person to an ecclesiastical benefice or dignity; such presentation shall be void, and the presentee be rendered incapable of ever enjoying the same benefice: and the crown shall present to it for that turn only. (a) But if the presentee dies without being convicted of such simony in his lifetime, it is enacted by stat. 1 W. & M. c 16. that the simoniacal contract shall not prejudice any other innocent patron, on pretence of lapse to the crown or otherwise. Also by the statute 12 Ann. stat. 2. c. 12. if any person for money or profit shall procure, in his own name or the name of any other, the next presentation to any living ecclesiastical, and shall be presented thereupon, this is declared to be a simoniacal contract and the party is subject to all the ecclesiastical penalties r Co. Litt. 344, 345. u S Inst. 156. s 2 Roll. Abr. $69. w Moor. 564. q4 Rep. 75. 2 Inst. 652. (13) See the cases collected, Mirehouse on Advowsons, 162. The 44 Geo. III. c. 43. enacts, that in case of avoidance or deprivation on account of nonage, &c. of incumbent, no title by lapse shall accrue till after six month's notice thereof by ordinary to patron. (14) See Mirehouse on Advowsons, 214 to 260.; Cunningham's Law of Simony; Bac. Ab. Simony; and ante 22. (15) Or" for any sum of money, reward, gift profit, or beneft; or for any promise, agreement, grant, bond, covenant of or for any surn of money, reward, gift, profit, or benefit." s. 5. "Any person or persons" are the words of the statute, therefore, a presentation by a stranger usurping the right would be also void, but the righful patron, and not the crown, would be enti tled to present in such case. |