Notwithstanding this statute, grants to corporations without any license in mortmain, are good, for the purpose of vesting the lands in the grantees; for corporations, without such license, have capacity to take, but not to retain. The penalty for such an alienation is forfeiture to the immediate lord, or on his default, to the king, to whom a right of entry was given. This remark does not apply to conveyances to corporations for charitable uses within the statute 9 Geo. II. c. 36, which renders such as are not conformable to its provisions void.

As to things not lying in tenure, as rents, commons, and the like, the king is entitled to have them, if aliened in mortmain immediately after office found; and until office found, they remain in the corporation (b).

Under the stat. 7 Edward I. it was held, that if there were a lord, and an abbot tenant, and the lord released to the abbot his seignory, this was mortmain, and the lord paramount should have the seignory by force of the statute (c). So, a grant of a rent charge to an abbot and his successors, even for a term of 80 years, was mortmain under this statute, for the words are not confined to lands, but prohibit the alienation of lands and tenements (d). Although it was argued in a recent case (e), that tithes were neither within this act, nor the statute 15 Richard II. c. 5, the object of those statutes being to prevent the inheritance of lands from getting into the hands of religious houses.

An alienation by one abbot to another was within the statute (ƒ); so an appropriation of an advowson of which an abbot or bishop was seised in fee, in his own right, to him and his successors, was mortmain (g). So, if an abbot, or a dean and chapter, had a rent in fee issuing out of lands, and the tenant of the lands had granted by deed, that they and their successors should distrain for that rent in other lands, this

(b) Plowd. 502; Co. Litt. 2 b.

(c) Fitz. N. B. 223 (I), cited 7 Rep. 38 a.

(d) Fitz. N. B. 223 (B); Vin. Abr. Mortmain (B), pl. 14.

(e) Jesus College v. Gibbs, 1 Younge & Collyer, 147; See Wood's Inst.

301.

(f) Vin. Abr. Mortmain (B), pl. 2. (g) Fitz. N. B. 223 (H).

was construed to be within the act (h). The entry by an abbot or prior on the lands of his villain without license, incurred a forfeiture in mortmain (i). The statute extends as well to lands given to bodies politic, as to those purchased by them (k). Notwithstanding the statute, a citizen and freeman of London, may by custom devise lands in mortmain (1), because by subsequent statutes their customs were confirmed (m), but such custom is confined to lands in London (n).

The taking a lease for a very long term, as 100 or 200 years, is within the mortmain act, but a term for 20 or 40 years, or even for 99 years appears not to be contrary to the statute (o). In a recent case (p), it seems to have been admitted, that a mere common husbandry lease taken by a religious body is not within the statute; and it may be inferred, that a mere covenant for renewal, would not make it so (q). It is said, that the plaintiff in replevin shall not be suffered to disclaim against an abbot, or other religious person, nor against their bailiff, by reason of mortmain (r).

The grant of goods and chattels is not within the mortmain acts (s). The material distinction between an annuity and a rent is, that the former is a charge on the personal estate only, the latter on the real (t). An annuity therefore does not fall within the prohibitions against mortmain, because it charges the person only (u).

(h) Fitz. N.B. 224 (G). (1) Id. 224 (D).

(k) Id. 224 (F); 9 Mod. 202, 177. (Doct. & Stud. c. 10; Bridg. 103; Bro. Customs, 41, 7; Roll. Abr. 556; 8 Rep. 129 a.

(m) 2 Bulstr. 187; See 23 Hen. VIII. c. 10, s. 5; Norton's Comm. on London, 449-452.

& Collyer, 147.

(q) Bro. Mortmain, pl. 39; Vin. Abr. Mortmain (B), pl. 22.

(r) Bro. Mortmain, pl. 2, cites 28 Hen. VI. c. 10; Vin. Abr. Mortmain (E), pl. 1.

(s) Kitch. on Courts, 139 b. (t) Co. Litt. 2 a., 144 b., 20 a.; Com. Dig. Annuity (A); Terms de

(n) Middleton v. Cater, 4 Br. C. C. la Ley, Annuitie; Dyer, p. 24. See

409.

(0) 3 Edw. IV. fol. 13, 14; 4 Hen. VI. fol. 9, pl. 1; Bro. Mortmain, pl. 27, 39; Vin. Abr. Mortmain (B), pl. 21; Godb. 192; Rep. of Sir O. Bridg. 7.

Priddy v. Rose, 3 Mer. 86; Earl of Holderness v. Lord Carmarthen, 1 Br. C.C. 377; Earl of Stafford v. Buckley, 2 Ves. sen. 171; Aubin v. Daly, 4 Barn. & Ald. 59.

(u) Co. Litt. 2 b; Vin. Abr. Mort(p) Jesus College v. Gibbs, 1Younge main (B), pl. 17; 2 Bl. Comm. 40.

The lord must enter for a forfeiture on an alienation in mortmain within a year (v), which is to be computed from the day next after the alienation (w). But where lands are conveyed to the use of a party for life, with remainder to a corporation, the forfeiture does not accrue until the death of the tenant for life (x). And where a remainder-man aliens in mortmain, the lord cannot enter until the determination of the particular estate (y). The right of the lord to enter continued only for one year, and where the seignory was limited for particular estates, the lord in remainder was bound by the laches of the particular tenant, in not entering within the year (z). But descent within a year after the alienation in mortmain did not take away the right of entry within the year. So on an alienation of an advowson in mortmain, the king or other lord may present on the next avoidance within the year, though the church had been full six months before the quare impedit was brought (a).

The heir of a tenant in tail who had aliened in mortmain, was not barred, the statute de donis (b) having passed after the statute of mortmain (c).

The king cannot enter upon lands aliened in mortmain before office found (d).

The inquiry whether lands have been aliened in mortmain, is directed by commission under the great seal addressed to special commissioners, who are empowered to summon and examine witnesses, and to take an inquisition with a jury, which is to be returned into the Court of Chancery (e).

(v) Plowd. 202. (d) See Doe d. Hayne v. Redfern, (w) Vin. Abr. Mortmain (C) 3, 12 East, 96; Doe d. Evans v. Evans, pl. 5. 5 Barn. & Cr. 587, note (e); S. C. 8

(x) Vin. Abr. Mortmain (B), pl. Dowl. & Ryl. 399.

19, (C), pl. 6.

(y) Id. (C) 3, pl. 4.

(e) A commission of this kind was issued in Dec. 1833, directed to five

(z) Vin. Abr. Mortmain (C) 3, commissioners who were barristers,

pl. 1, 2.

(a) Id. pl. 3.

(b) 13 Edw. I. c. 1.

(c) Bro. Mortmain, pl. 10; Vin. Abr.Mortmain (C), pl. 2; Plowd. 238.

including the solicitors of the Treasury. The Commission recited letters patent of the 28th June, in 7 Geo. IV. constituting an insurance society a body politic, by the name of "The

The subject has a general right to traverse every inquisition finding property to be in the crown (f); but it may be

University Life Assurance Society," with power to purchase and hold lands, &c., not exceeding in value in the whole, the annual sum of 10007., and any goods and chattels, whether absolutely or by way of mortgage, pledge, or annuity, of what nature or kind soever, for the benefit of such society: that the king had been informed that the said society had taken by purchase, gift, grant, or other conveyances or assurances in the law, unto or to the use of, or in trust for the said society, and their successors, or for term or terms for years, or other estate therein, divers manors, &c. in the county of Suffolk: the said society having, under the powers given to them by the said letters patent, taken and purchased, or become seised, or possessed, to them and their successors, of divers other lands, &c. in the United Kingdom, of the annual value of 1000l., and being seised or possessed thereof, before, and at, and after the time of such purchase, gift, grant, or other conveyances or assurances of such manors, &c. in the county of Suffolk, whereby the said manors, &c. so purchased, &c. had from the time or respective times of the purchase, gift, grant, conveyance, or assurance thereof, as aforesaid, come into mortmain, and become forfeited, and then did belong to the king, and the crown of the United Kingdom, by virtue of the prerogative royal. The commission then authorized any three or more of the commissioners named, to inquire by

the oaths of a jury, and, if necessary, by the examination of witnesses upon oath, (which the commissioners were authorized to administer,) and by other means, whether the society had, by themselves, or by any persons in trust for, or for their use, purchased, or become seised of, or entitled unto any and what manors, &c. in the county of Suffolk, by the gift or grant of any person or persons whomsoever. And whether the said society had, before and at the time of such purchase under the powers given to them by the said letters patent, purchased, or become seised, or possessed, and still remained seised and possessed to them and their successors, of divers other lands, &c. in the United Kingdom, of the annual value of 1000l.; and by what deeds or conveyances the said society became seised or possessed of the said manors, &c. in the county of Suffolk, and how much the same were worth by the year, according to the true value thereof, and to what amount, and of what person or persons, and by what services, the said manors, &c. in the county of Suffolk were holden, and if the same were holden of any chief lord or others lords immediate of the fee, other than the king; then, whether such chief lord or other lords, had, within any and what time after such purchase, &c. of the said manors, &c. in the county of Suffolk, entered into the same, and what part thereof; and whether the same had become forfeited, and then did belong to the king in right

doubted, whether a mere trustee has a right to do so (g). Leave to traverse an inquisition may be obtained, upon petition to the Court of Chancery (h).

In order to evade the statute 7 Edward I., the religious houses used to set up a fictitious title to the lands intended to be given or sold, and brought an action against the tenant to recover them; the tenant, by collusion, made no defence, whereby judgment was given for the religious house, which then recovered the lands by sentence of law, upon a supposed prior title. And although proceedings of this kind were carried on by a species of conventional fraud, between the religious house and the tenant of the land, yet the judges held, that in these cases the religious communities did not appropriate such lands per titulum doni vel alterius alienationis, as the statute de religiosis, 7 Edward I. expresses it;

of his crown, or of any and what other right; and who had received the mesne profits thereof, from the time or times of the purchase, &c. and to what amount, and in whose possession the same then were; and also all other matters and things which they should judge necessary to be inquired of, touching the premises. And all and every the manors, &c. which, by inquisition to be taken in that behalf, should be found to have been purchased by, or given, &c. unto, or to the use of, or in trust for the said society, and which unto the king ought to devolve, to take and seize into the hands of the king. It then commanded the commissioners to take an inquisition, and to certify the same into Chancery under the seals of three or more of them, and gave them power to summon witnesses, &c. It then commanded the sheriff of the county of Suffolk to summon a jury, who were to inquire into the truth of the matter. By an inqui

sition taken the 6th January, 1834, under the hands and seals of three commissioners and twelve jurymen, it was found, that by several indentures of mortgage, and demise, and in fee, therein mentioned, the first of which was dated the 23rd February, 1829, that several manors and other estates, in Suffolk, had been conveyed to the society and their successors by way of mortgage, that such estates were holden of his majesty in free and common soccage, in right of the crown, but not subject to any services or rent except fealty, and that the premises had become forfeited, and then did belong to his majesty in right of his crown. And the commissioners certified, that they had seized the lands forfeited into the hands of his majesty.

(f) Com. Dig. Prerog. (D), 83, 84; Ex parte Lord Gwydir, 4 Madd. 322. (g) In re Sadler, 1 Madd. 581. (h) Ex parte Webster, 6 Ves. 609.