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SECTION II.

Of Conveyances and Purchases within the Statute

9 Geo. II. c. 36.

1. Copyholds are within the Act. 2. Of Reservations to the Grantor, p. 124. 3. Of Inrolment of the Conveyance, p. 129. 4. Of Purchases within the Second Section of the Act,

p. 131.

1. Copyholds are within the act.] Copyholds are within this statute, whether given by will (2), or conveyed by the party in his lifetime. Where it appeared, that in 1743, certain copyholds were surrendered “to the use of certain persons therein named, their heirs and assigns, for ever, in trust nevertheless, to and for the use, benefit, and habitation of the poor of the town of Rothwell for ever.” The trustees were admitted in 1743, and the heir of the surviving trustee was admitted in 1813. No evidence was given to show when the surrenderor died. In an action of ejectment brought by the heir of the surviving trustee, it was held, that the surrender was void by the statute 9 Geo. II. c. 36; none of its provisions having been complied with, and that copyholds were within that act. On a motion for a new trial it was contended, that a conveyance of copyholds was not within the act, inasmuch as a copyhold could not be conveyed by bargain and sale, the mode prescribed by the act; and that if a bargain and sale and inrolment were necessary, that they might be presumed to have existed after such a long enjoyment. But it was held by the court, that copyhold lands are within the mischief intended to be remedied by the statute 9 Geo. II. c. 36, and therefore included in the general words of it. And although copyholds must pass by surrender, and

(2) Arnold v. Chapman, 1 Ves. sen. 108.

not by bargain and sale, yet it is clear, that the uses of the surrender may be declared by deed indented and inrolled (a).

It is a general principle of law with respect to deeds made void by statute, or by common law, as contra bonos mores, that the proof of their invalidity may be collected not only from the instrument itself, but from circumstances not appearing upon the face of it. It is not necessary therefore, that the charitable or superstitious trust for which the conveyance is made, should appear upon the conveyance; for if it were so, the statute might always be evaded. A declaration of trust by one of several persons to whom the property is conveyed, is evidence of the purpose against all (b).

2. Of reservations to the grantor.] A conveyance under this act must take effect in possession, therefore, where a person more than twelve calendar months before his death, assigned a lease for the term of 991 years, to trustees upon trust, within one year after his death, at the expense of his estate to erect almshouses thereon, to be enjoyed as therein mentioned; there being a resulting trust to the grantor for life under the deed of assignment; it was held void within this act, not being to take effect in possession from the making thereof (c).

It has been decided, that a trust in a conveyance to charitable uses, for keeping up the grantor's tomb, is not the reservation of a benefit within this act; that the fact of the grantor's remaining in possession of the property from the time of the grant till his death, does not vitiate the deed, unless it was in consequence of a tacit condition annexed to it at the time of the execution, which is a question to be decided by a jury; and that a conveyance to charitable uses and for other purposes, although void as to the former, is valid as to the latter, the statute not making such a deed void altogether.

Thus where it appeared that a meeting-house and burialground, were before and at the time of the conveyance, held

(a) Doe d. Howson v. Waterton, 2 Barn. & Ald. 102; post, p. 136. 3 Barn. & Ald. 149.

* (c) Limbrey V. Gurr, 6 Madd. (6) Doe d. Wellard v. Hawthorn, 151.

by a society of Quakers, under a yearly rent of 21. 10s., and that a burial-vault and tomb over it, used by the family of the grantor, were standing on the burial-ground. By indentures of lease and release executed and inrolled as required by the statute, a messuage or farm called Meeting-house Farm, with the several fields thereto belonging, and also the meeting-house and burial-ground, and burial-vault and tomb standing upon the said fields, were conveyed to Mavor and Smith, and their heirs, to the uses and upon the trusts following, viz., As to the meeting-house and burial-ground with the appurtenances (except the vault and tomb, &c.), to the use of the trustees, their heirs and assigns, so long as the same should be used by the society of Quakers, and they should pay to the trustees the yearly rent of 21. 10s., and keep the same in repair ; and after the determination of that estate as to the meeting-house and burial-ground, and immediately after the execution of the said conveyance as to all other the premises, and also as to the rent of 21. 10s., during the continuance of the limitation aforesaid, to the use of and in trust for Mavor, his heirs and assigns, upon condition that he, his heirs and assigns, should, from time to time, and at all times thereafter, repair and keep in repair, the vault and tomb, and brick-work and fences thereto belonging, and, if need be, re-build the vault and tomb, and permit the same to be used as a family vault, for the grantor and any of her family who might desire to be interred therein; and in default thereof, his estate to determine, and from and after the determination of that estate to Smith, his heirs and assigns, for ever. And there was power for Smith to enter from time to time, to see the condition performed; and for the Quakers to build a new meeting-house upon a different site, and a declaration that then the new site should be subject to the same uses and conditions as the old, and the old site subject to the same uses as the farm, &c. The grantor died in 1810; having, from the conveyance in 1789, to the time of her death, received the several rents of the Meeting-house Farm, and the meeting-house and burial-ground, and having made her will, under which the plaintiff, who sought to recover the property in an ejectment,

claimed. At the trial there was a verdict for the plaintiff, for the meeting-house and burial-ground; and for the defendants for the farm, subject to the opinion of the court, and if the court should be of opinion that the said grant of the farm was void, then a verdict was to be entered for the plaintiff for all the premises mentioned in the deeds.

Lord Ellenborough, C. J., “ The question reserved is upon the statute of mortmain, whether this grant of the Meetinghouse farm is void, which is granted as ancillary to a trust for keeping up a tomb. It does appear, I think, a charitable use in part, and in part not; as far as concerns the grantor's own interment it is not, but inasmuch as it is for her family, it may be so considered ; but then the statute has been complied with. It is said, however, that here is a reservation of some collateral benefit to the donor or person claiming under the donor, but I cannot find that; all that is reserved is in furtherance and execution of the trust. The object of the statute was to prevent a reservation, under colour of a charitable use, of some substantial benefit to the donor himself. The whole object of this use was keeping up a tomb for herself and family. As to the objection—that this deed did not take effect in possession, the statute only requires that it should be made to take effect in possession, and it is so made ; if there were any secret reservation or trust, which was to be evidenced by her remaining in the possession of the rents for about 19 years, should not that have been more properly made a question before the jury? we can only look at the instrument itself, and cannot draw any such inference” (a).

There is no difference between a transaction illegal at common law and by statute, when an attempt is made to set aside a deed; and therefore a deed may be void in part and good in part, although it contain a use prohibited by statute. A statute, when it prohibits a thing, may go further, and say that the deed by which it is done shall be void, and then a court of law must decide that it is void to

(a) Doe d. Thompson v. Pitcher, 3 Maule & S. 407.

all intents and purposes, because the Legislature has said so; but a court of law cannot so decide where the Legislature says that a part is legal. Although the statute makes the grant of an interest in land to charitable uses void, it does not avoid the deed altogether; and a conveyance to charitable uses as far as it affects other lands not appropriated to such uses remains good. Therefore in the last case, on another ejectment being brought to recover the Meeting-house Farm, exclusive of the meeting-house and burial ground, on the ground that the deed being void as to part could not be supported as to the rest; it was held by the court, that the deed was not wholly void, but good so far as it affected lands not appropriated to charitable uses, though it contained a conveyance of some property to a charitable use, and that the part then in question with respect to the repair of the vault was not void, because it was not a charitable use (e).

Where a conveyance to charitable purposes is immediate, a reservation of a power to the grantor of appointing objects of the charity and of making regulations for the future conduct of it, will not render the deed void. Thus where a person who had erected a chapel upon her own land by deed duly inrolled within the time limited by the statute 9 Geo. II. c. 36, conveyed it unto and to the use of trustees and their heirs upon trust, that they and their successors should from time to time and at all times after the decease of the grantor appoint preachers to expound and teach the gospel, and persons to collect contributions from the attendants at the chapel for their pews; and upon trust to expend such contributions in keeping the chapel in repair, and to pay the residue to the ministers of the chapel for the time being. The grantor ordained, that the trustees should after her decease make such rules and bye-laws for the better management of the chapel and the preachers therein, as should seem requisite. The deed provided that it should be lawful

(e) Doe d. Thompson v. Pitcher, 727; Norton v. Summers, Hob. 13; 2 Marsh. 61; S. C. 6 Taunt. 359; Collins v. Blantern, 2 Wils. 351; See Greenwood v. Bishop of Lon- Maleverer v. Radshaw, 1 Mod. 35. don, 1 Marsh. 310; S. C. 5 Taunt.

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