The king could always grant agicence to alien. in mortmain, or, more correctly speaking, lie could remit the forfeiture consequent upon alienation, so far at least as concerned himself ; but such remission could strictly only affect his own rights', and not those of the niesnc lords, unless they also consented. It was the practice, before the king granted his licence, to sue out a writ of ad quad daranum, in order that inquiry might be made and the king informed what damage himself or others might sustain from the licence. This practice however fell into disuse long before the statute of the 7 & 8 Will. III., c. 37, which authorises the king to grant to any person or persons, corporate or not, licence to alien in mortmain, and to purchase and hold in mortmain any lands or heieditaments, and that such lands shall not be subject to forfeiture. 'When a licence to hold lauds in mortmain is granted, it generally epocifiea the amount in value of the lands to be held by the corporation to which it is granted, and if the corporation should be ever found to acquire lands beyond this value, such lauds are forfeited to the lord.
Until the statute of 9 Cleo. II., c. 36, presently mentioned, though lands could not be aliened in mortal:tin, yet certain gifts to corporate bodies were held good. Thus, if a foolf nent was made to a dean and chapter to perform a charitable use (within the 43 Eliz., c. 4), it was good, though they could not be seined to another's use ; and a devise to a college to a charitable use within this statute was also good. (I lob., 136; 1 Lev., 284.) The statute of the 9 (leo. II., e. 36, is now commonly, though not correctly, called the Statute of Mortmain. It applies only to England and Wales. It is entitled "Au Act to restrain the Disposition of Lands, whereby the same become inalienable." The provisions and object of this enactment cannot be otherwise expressed than by stating the first section at full length :—" Whereas gifts or alienations of lands, tene ments, or hereditaments, in mortmain, are prohibited or restrained by Magna Cherie and divers other wholesome laws, as prejudicial to and against the common utility ; nevertheless this public mischief has of late greatly iucreaaed by many large and improvident alienations or dispositions made by languishing or dying persons, or by other persons, to uses called charitable uses, to take place after their death, to the disherison of their lawful heirs ; for remedy whereof be it enacted, that from and after the 24th day of June, 1736, no manors, lands, tenements, rents, advowsons, or other hereditaments, corporeal or incorporeal whatsoever, nor any sum or sums of money, goocis, chattels, stocks in the public funds, securities for money, or any other personal estate whatsoever, to be laid out or disposed of in the pur chase of any lands, tenements, or hereditaments, shall be given, granted, aliened, limited, released, transferred, assigned, or appointed, or any ways conveyed or settled to or upon any person or persons, bodies politic or corporate, or otherwise for any estate or interest whatsoever, or any ways charged or encumbered by any person or persons whatsoever, in trust or for the benefit of any charitable uses whatsoever, unless such gift, conveyance, appointment, or settlement of any such lands, tene ments, or hereditaments, sum or sums of money, or personal estate (other than stocks in the public funds), be made by deed indented, sealed and delivered, in the presence of two or more credible wit nesses, twelve calendar months at least before the death of such donor or grantor (including the days of execution and death), and be enrolled in His Majesty's High Court of Chancery within six calendar months after the execution thereof ; and unless such stock be trans ferred in the public books usually kept for the transfer of stocks, six calendar months at least before the death of such donor or grantor (including the days of the transfer and death); and unless the same be made to take effect in possession for the charitable use intended im mediately from the making thereof, and be without any power of revo cation, reservation, trust, condition, limitation, clause, or agreement whatsoever, for the benefit of the donor or grantor, or of any person or persons claiming under him." The act provides that what relates to
the time before the grantor's death for sealing the deed and making the transfer shall not extend to any purchase to be made really and boni fide for a full and valuable consideration, actually paid at or before the making of such conveyance or transfer without fraud or collusion. The two universities of Oxford and Cambridge, and the colleges within them, were excepted from the operation of the act ; and the colleges of Eton, Winchester, and Westminster, but in favour of the scholars only, were also excepted. This act limited the number of advowsons which any college or house of learning (before referred to in the act) could bold; but this restriction was removed by the 45 Geo. III., c. 101. By the 5 Geo. IV., c. 39, the British Museum is excepted the statutes of mortmain ; and various other public bodies have been in like manner excepted by act of parliament. The judicial interpretation of this act, called the Mortmain Act, has prevented a large amount of property from being given to charitable uses. A bequest of money for charitable purposes, to arise from the sale of land, is void ; or of money due ou mortgages ; or of money to pay off the mortgage on a chapel ; or of money to build a chapel, unless some land already in mortmain is distinctly pointed out by the terms of the bequest ; or of mortgages both in fee and for years ; or of money to be laid out on mortgage security. This act can only be called a Mortmain Act with any propriety so far as it relates to corporate bodies, and even with regard to them with no strict propriety, inasmuch as the Mortmain Acts were intended to prevent corporate bodies holding lands to their own use, or to prevent other persons holding them to the use of corporate bodies. The act is in fact intended to limit the power of giving property for charitable purposes to any person or persons, and is very improperly called a Mortmain Act, if we consider that many gifts of land for charitable purposes were not considered, before the passing of this act, as within the old statutes of mortmain.