This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Purchasers must, necessarily, be either individuals (z) or corporations; corporations, of whatever description, may purchase, but cannot, in their corporate capacities, hold land, except under a licence to hold in mortmain (a), or under the special provisions of an Act of Parliament.
Corporations cannot hold without licence.
Purchases, by individuals, unincorporated, must be made by them in their private capacities and individual names: e.g., a purchase by, eo nomine, the inhabitants of a place, or the parishioners or churchwardens of a parish, is bad; so is a similar purchase by, or grant to, the commoners of a waste (b).
Purchase by unincorporated class, bad.
But, by custom, in London and elsewhere, the parson and churchwardens are a corporation to purchase and hold land (c); and, by statute, churchwardens and overseers of the poor were empowered to hold in the nature of a body corporate (d). Various Local Authorities may purchase and hold lands for the purposes authorised by their Acts (e); and Parochial Church Councils have power, with the consent of the Diocesan Authority (f), to acquire land for any ecclesiastical purpose affecting the parish, the legal estate being vested in the Diocesan Authority (g). Public companies formed under the Companies (Consolidation) Act, 1908, may hold lands: but if formed for the promotion of art, science, religion, or charity, or any like object not involving the acquisition of gain, the quantity so held must not exceed two acres, unless the Board of Trade sanctions a larger holding (h). And the Governors of Queen Anne's Bounty have power to purchase (k).
Parochial corporations may purchase and hold.
(z) In the case of a grant by the Crown to a body of unincorporated individuals incorporation will be presumed, if necessary, for establishing the validity of the grant: Chilton v. Corp. of London, (1878) 7 Ch. D. 735; 47 L. J. Ch. 433; Lord Rivera v. Adams, (1878) 3 Ex. D. 361; 48 L. J. Ex. 47.
(a) The Mortmain and Charitable Uses Act, 1888, ss. 1, 2, and the Act of 1891; for a list of various incorporated bodies empowered to hold lands without licence in mortmain, see Tudor's Char. Trusts, 4th ed., p. 465 et seq.; Key & Elph., 12th ed., vol. 2, pp. 284 - 287. A benefit building society under the Building Societies Act, 1836, c. 32, might purchase real estate: Mullock v. Jenkins, (1851) 14 Beav. 628; 21 L. J. Ch. 65; but this Act (and see now the Building Societies Act, 1894, s. 25 (2)), except as to subsisting societies, was repealed by the Building Societies Act, 1874, which apparently (s. 13) restricts the power of such a society to hold land to what they hold by way of mortgage, or acquire by foreclosure.
(b) Co. Litt. 3 a; Gateward's case, (1607) 6 Co. 60; Goodman v. Saltash Corp., (1882) 7 A. C. at p. 641; 52 L. J. Q. B. 193; and Haigh v. West, 1893, 2 Q. B. 19; 62 L. J. Q. B. 532; cf. L. T. Act, 1875, 88. 4, 69; 1897, 8. 14 (1) (now rep.); Brickdale, 3rd ed., p. 4.
(c) See Warner's case, (1619) Cro. Jac. 532; note (4) to Co. Litt. 3 a; Tell v. 0. T. of Charity Lands, 1898, 2 Ch. at p. 59; 67 L. J. Ch. 385.
Previously to the passing of the Naturalization Act, 1870, an alien might purchase before denization; but the Crown might at any time assert its right to the property (l), except in cases coming under 7 & 8 Vict. c. 66, s. 5 (m); and the Crown might exercise the right of re-entry, without the necessity of any inquisition being taken, or office found (n). Before the Crown had exercised its right of re-entry, an alien might make a conveyance to a natural-born subject, which, though it could not defeat the prior right of the Crown, was valid in every other respect (o). By 7 & 8 Vict. c. 66, a resident alien friend might hold any lands, houses, or other tenements, for the purpose of residence, occupation, business, trade, or manufacture, for any term not exceeding twenty-one years, as if he were a natural-born subject (p), and by the Naturalization Act, 1870, the disabilities of an alien to acquire real or personal property were almost entirely removed. This Act has been repealed by the British Nationality and Status of Aliens Act, 1914, s. 17 of which last mentioned Act provides that real and personal property (q) of every description may be acquired and disposed of by an alien in the same maimer as by a natural-born British subject, and the title to property of every description may be derived through, from, or in succession to an alien in the same manner as through, from, or in succession to a natural-born British subject.
Alien could not hold.
(d) The Poor Relief Act, 1819, s. 17, and see now the Local Government Act, 1894, ss. 5, 6.
(e) See Key & Elph., 12th ed., vol. 2, pt. i., pp. 287 - 289.
(f) Defined by the Parochial Church Councils (Powers) Measure, 1921, s. 1. See the Diocesan Boards of Finance Measure, 1925.
(g) Parochial Church Councils (Powers) Measure, 1921, s. 5 (i).
(h) Ss. 16 (2) and 19; Companies Act, 1929, ss. 14 and 345.
(k) 2 & 3 Anne, c. 11, ss. 4, 5.
(l) Co. Litt. 2 b; R, v. Holland, (1669) Aleyn, 14; Dumoncel v. D., (1848) 13 Ir. Eq. R. 92.
(m) This Act was repealed by the Naturalization Act, 1870, which has itself been repealed by 4 & 5 Geo. V. c. 17.
(n) The Queen's Remembrancer Act, 1859.
(o) Shep. T. 232.
British Nationality, etc. Act, 1914.
The right of the Crown to grant letters of denization was expressly reserved by the Naturalization Act, 1870; and a similar reservation is contained in the Act of 1914 (r).
An infant can contract to purchase; but on his attaining twenty-one, he may, at his option, adopt or abandon the contract (s); and should he either die under twenty-one, on (having attained that age) die without exercising or relinquishing his option, and without having lost the same by delay, the like privilege descends on his representatives.