Mortmain (Fr. mort, dead, and main, hand; Lat. mortua manus). tinder the system of feudal tenures, the lords of estates enjoyed certain privileges on the death or change of their vassals. When the tenant died, leaving only an infant heir, the lord resumed the fee and retained it during the heir's minority, in order to maintain out of its rents and profits a person capable of rendering the services due for the lands. This was the lord's wardship. Marriage, in the sense of the feudal law, consisted in his right to exact a price for consenting to the marriage of his ward. Relief was another incident of feudal tenure; it was a fine or composition paid by the heir for the privilege of succeeding to the estate, which had revested in the lord on the death of his immediate grantor. These and similar profits accrued to the lords on the death of their feudatories. It is the distinctive quality of a corporation that it never dies, and lands held by such bodies produced none of these feudal fruits; but, in the language of Sir Edward Coke, "the lands were said to come to dead hands as to the lords." The mischief existed even before the conquest.
Within two centuries after it, says Blackstone, the busy acquisition of landed estates by the ecclesiastical corporations had diminished perceptibly the feudal services ordaind for the defence of the realm; the circulation of property from man to man began to stagnate, and the lords were curtailed of their wardships, reliefs, escheats, and the like fruits of their seigniories. The evil attracted the attention of the legislature, and it began to impose restraints on the capacity of corporations aggregate to acquire lands. The earliest of the laws made with this intent is contained in Magna Charta. The 36th chapter of that instrument declares that "it shall not be lawful for any one to give his lands to any religious house, and to take the same land again to hold of the same house, etc, upon pain that the gift shall be void and the land shall accrue to the lord of the fee." This; act destroyed the power to take by gift; for this mode had been adopted by the ecclesiastics to evade the necessity of asking the king's license, which they must by the existing laws have done if they took the lands by purchase. The religious houses next attempted to accomplish their object by buying lands that were bona fide holden of themselves, as lords of the fee, or by taking long leases of the desired estates.
This is the origin of those terms for 1,000 years or more, sometimes met with in conveyances. This evasion of forfeiture produced the statute de religiosis (7 Edward I.), which provides that "no persons, religious or other whatsoever, shall buy or sell any lands or tenements, or under the color of any-gift or lease or any other title whatsoever receive the same, or by any other craft shall appropriate lands in any wise to come into mortmain, upon pain of forfeiture, at the election of the lords of the fee." But their shrewd lawyers contrived still to relieve the clergy from the embarrassments of these acts. They observed that the statutes thus far extended only to gifts and conveyances between the parties. They invented what afterward became one of the most approved assurances in the English conveyancing, namely, a recovery; that is, feigning title to the land which was intended to be conveyed, they brought an action to recover it. By collusion with the tenant no defence was made, and it was the necessary legal consequence that the land was adjudged to the demandants.
This contrivance was defeated by the statute of Westminster the second, 13 Edward I. Incapacitated now to take either by gift, purchase, lease, or recovery, and despairing of holding any legal estate in lands, the ecclesiastics resorted to the distinction, familiar to the Roman law, between the right to the rents and profits of land and the right of property in the land itself. They therefore procured a conveyance to a third person and his heirs, with the understanding that the religious houses and their successors should have the beneficial enjoyment of the estate. This usufructuary interest, as distinguished from the legal ownership, was denominated the use, and founded the whole doctrine of uses and trusts in the present law. Once more the legislature interposed, and by the statute 15 Richard II. declared that no conveyance of lands or other possessions should be made to the use or profit of any spiritual persons, without the license of the king and the mesne lords, upon pain of forfeiture. Though these statutes of mortmain were generally directed against the ecclesiastical corporations, civil corporations were equally capable of the mischiefo which they contemplated; indeed, they are within the letter of the acts 7 Edward I. and 15 Richard II. The effect of these statutes was to make all lands conveyed in mortmain forfeitable, if the lords or the king elected.
But a waiver of this right of forfeiture was always a sufficient license to corporations to hold lands. In process of time, as the mesne seigniories declined, and the rights of intermediate lords could be hardly traced, the license of the king as lord paramount was esteemed sufficient. It was therefore provided by the statute 7 and 8 William III., c. 97, that for the future the crown might, in its discretion, grant a license to take or alien in mortmain, of whomsoever the estates might be holclen. The art 9 George II. is now the leading English statute of mortmain. It forbids the gift of money or lands to charitable uses, except by deed operating immediately, and without power of revocation, formally executed and enrolled in chancery at least six months before the donor's death." In favor of churches, col-leires, and hospitals, some moditications of the statute have been admitted. - In the United States the English mortmain laws have not in general been adopted or recognized, except in Pennsylvania; and in that state, by an act passed in' 1855, bequests, devises, or conveyances for religious or charitable uses may be valid if made by deed or will at least one calendar month before the death of the testator or alienor.
In New York, by a statute enacted in 1848, gifts to charitable corporations by will must be made two months before the testator's death; and by another enacted in 1860 any person having a husband, wife, child, or parent is precluded from bequeathing more than one half his clear estate to any society, association, or corporation. In Georgia in like manner a gift to charitable uses by will is made void, if the testator has a wife or issue living, unless made 90 days before his death. In other states the checks to the acquisition of real estate by corporate bodies are such as are imposed by their charters, or by the general laws under which they have become incorporated.