This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
Originally a grant of land to "A and his heirs" meant what it said, viz. that A was to have the land while he lived, and that after A's death it should go to his heirs one after another for the life of each. A could not alienate or part with the land (except for his own life estate) either during his life by sale or gift, or on his death by will.
(1) Alienation inter vivos (a). - A tenant in fee simple soon acquired the power to grant away the whole fee simple during his life, and this right was finally recognised by the Statute of Quia Emptores (18 Edward I. c. 1), which, as we have seen (p. 13), allowed free substitution of another tenant in fee simple in the place of the original tenant, while it abolished subinfeudation.
(2) Alienation by will. - This was more gradual.
(a) Originally. - Land could not be given by will.
As in the Roman Law the Paterfamilias sold his familia to a familiae emptor by the copper and the scales, but subject to a fiducia or trust in favour of the persons to be named in his will, so, in English law, the tenant in fee simple granted his land to a friend absolutely, and imposed a trust or " use " on the friend, to hold the land in trust for the persons to be named in the will.
(d) The Statute of Wills (32 Hen. VIII. c. 1) allowed wills of lands to be made; but in case of lands held in knight service, only two-thirds could be given by will.
Thus for five years after the Statute of Uses no wills of land could be made; this caused such dissatisfaction that Parliament was forced to pass the Statute of Wills.
(a) This means "by living persons to living persons."
(e) The Statute of Tenures (12 Car. II. c. 24), as we have seen, abolished tenure in knight service, and consequently all lands can now be devised by will.
(f) The Wills Act, 1837 (b) has simplified the form of a will and made many important alterations in the effect of a gift of land by will, as to which see Chapter XIII (Wills Of Land).
(g) The Mortmain and Charitable Uses Act, 1891 (c), has removed difficulties which arose by reason of the rule that land could not be given by will to a charity by enacting that the land shall be sold and the proceeds of sale given to the charity (see p. 25).
Thus, at the present day a tenant in fee simple can freely alienate his land both during his life by sale or gift, or, on his death, by will.
So much so that land cannot now be given to a man in fee simple in such a way that he cannot alienate it (cc).
Any provision attempting to limit his right of alienation is void.
Exceptions to the right of free alienation.
2. Corporations. - Lands cannot he conveyed to Corporations, except to corporations specially authorised to receive lands
(1) by licence from the Crown, or
(2) by statute.
(b) 7 Will. IV. & 1 Vict. c. 26. (c) 54 & 55 Vict. c. 73.
(cc) This and all other similar rules can of course be overridden by Act of Parliament. (d) See p. 123.
This rule is due to the Mortmain Acts (e). A Corporation is a body of persons (or even a single individual) which has been incorporated by the Crown or by Statute, and thereupon becomes a person in the eye of the law. It is an artificial person, and although the members composing it may die, the Corporation still continues. Hence the maxim - "A Corporation never dies." A Corporation may consist of one person only, e.g. the Crown - or the Bishop of London: and if the person for the time being holding the office of King or Bishop should die, the Crown, or the Bishopric, still continues, and the lands vested in them have not changed hands. This form of Corporation is called a Corporation sole.
When a tenant in fee simple granted his land to a corporation, the lord lost his services; for, since a corporation never dies, there could be no escheat and no reliefs. Hence it was called a conveyance into Mortmain (= dead hand) and was forbidden. Lands conveyed to mortmain are forfeited to the Crown.
The rule still exists (f).
Exceptions (g). - Corporations which can hold lands are -
(1) Corporations to which special licence to hold lands is given by the Crown.
e.g. The Colleges of Oxford and Cambridge.
(2) Corporations excepted by statute.
(a) Railway companies and other corporations created by statute are sometimes excepted by the statute which creates them.
e.g. The Foundling Hospital (h).
(e) 7 Ed. I. c. 1 and 15 Ric. II. c. 5, replaced by the Mortmain Act of 1888, 51 and 52 Vict. c. 42.)
(f) See Mortmain Act, 1888, s. 1.
(g) For the manner in which the general law is now relaxed see Adler on Corporations, p. 80.
(h) 13 Geo. II, c. 29.
(b) Companies formed for the purposes of gam under the Companies Act, 1862, s. (18).
(c) Institutions excepted by special statutes. e.g. British Museum,
3. Charities. - Land cannot be conveyed to charities except with special formalities. This rule is entirely distinct from the rule preventing the conveyance of land to corporations. Thus -
(1) If the charity is a corporation, it cannot hold land at all unless it has special licence.
(2) If it is not a corporation at all, it may freely hold lands, provided the formalities required by the following Acts are complied with. The main object of the Acts is to prevent lands being given to charity by persons on their death beds.
The Mortmain and Charitable Uses Act, 1888 (i). - Land cannot be conveyed for charitable purposes unless it is conveyed as follows: -
By deed - (i.) Attested by two witnesses, (ii.) Made 12 months at least before the grantor's death.
(iii.) Enrolled within 6 months after it has been made in the Central Office of the Supreme Court.
(iv.) Not containing any power of revocation nor reserving any life or other interest (with certain exceptions) to the grantor.
Exemptions from the provisions of this act include twenty acres for a park, two acres for a museum, and one acre for a school house, and the Universities of Oxford, Cambridge, London, and Durham, and the Schools of Eton, Winchester, and Westminster (7c).
(i) 51 & 52 Vic. c. 42, s. 4. (k) Ibid. s. 7.
The consequence of this Act was that land could not be given to charity by will.
This rule led to considerable hardships and difficulties, for when lands were given to a Charity by will, the testator sometimes became intestate as to those lands. And if legacies were given to Charities and were made payable out of the land, so much of the legacy as would ordinarily have been payable out of the land was void. To remove these difficulties the following Act was passed.
Mortmain and Charitable Uses Act, 1891 (54 and 55 Vict. c. 73) contained four principal provisions.
(i.) If land is given to charity by will, the gift is not void, but the land must be sold within one year after the testator's death, and the charity gets the proceeds.
(ii.) If money is given by will to be laid out in the purchase of land for a charity, the land is not to be bought; but the charity gets the money.
(iii.) Money charged on land is not to be considered as land, and may, therefore, be given to a charity by will.
(iv.) If the land is required by the charity for actual occupation and not for investment, the Court may sanction the retention of the land by the charity.