MORTMAIN. A term applied to denote the possession of lands or tenements by any cor poration, sole or aggregate, ecclesiastical or temporal. These purchases having been chiefly made by religious houses, in conse quence of which lands became perpetually inherent in one dead hand, this has occasion ed the general appellation of mortmain to be applied to such alienations. 2 Bla. Coin. 268; Co. Litt. 2 b; Barrington, Stat. 27, 97. See Story, Eq. Jur. 13th ed. § 1137 n. (4) ; Shelf. Mortm. In England the common-law right of every corporation to take and hold lands and tenements has been restrained by the statutes of mortmain, which subject the power to acquire lands to the discretion of the crown or parliament as to the grant of a license; 8 H. L. C. 712 ; McDonogh v. Mur doch, 15 How. (U. S.) 367, 405, 14 L. Ed. 732. These statutes have not been re-enacted or considered in force in this country except in Pennsylvania, where they are judicially rec ognized to the extent of prohibiting the dedi cation of property to superstitious uses, and grants to a corporation without a statutory license ; Leazure v. Hillegas, 7 S. & R. (Pa.) 313 ; though the title is good till office found and may be conveyed subject to the right of the state to defeat it; id. See Arderican & Foreign Christian Union v. Yount, 101 U. S. 352, 25 L. Ed. 888. The commonwealth only can object; Goundie v. Water Co., 7 Pa. 233.
Ordinarily, a corporation may take and hold such land as may be within the pur poses of the charter, whe..her it acquires it by deed or devise ; Clark, Corp. 129. Stat utes sometimes restrict the amount that can be taken. Where a limit of value is specified it is ascertained as of the taking; Bogardus v. Rector, etc., of Trinity Church, 4 Sandf. Ch. (N. Y.) 633.
In the United States the term mortmain acts is applied to statutes which exist in some states restricting the right of religious corporations to hold land and the power to make conveyances, devises, or bequests to re ligious societies or charitable uses., Such statutes are aimed at the same mischief which gave rise to the English statutes of mortmain, and either avoid the deed or will, quoad hoc, altogether, or when without valu able consideration, or when the real estate is above a specified valuation, or If made within a specified time before the death of the grantor or testator. See Stims. Am. Stat. L. §§ 403, 1446, 2618.
In England, by the Mortmain Act of 1736, 9 Geo. II. c. 36, the power of devising land by will to charitable purposes was absolutely destroyed; 6 Ch. D. 214. This act and vari
ous amending acts were repealed by the act of 1888, but practically the then existing law was re-enacted; Whitehead, Church Law 174.
The act of 1888 Is In effect a codification of the law on the subject ; 5 L. Quart. Rev. 387. It is in four distinct parts; I. Assurances in mortmain are void and the land liable to forfeiture, if made oth erwise than under authority of a statute or of a license from the queen, is empowered to grant it. II. Assurances for charitable uses are treated substantially on the basis of the statute 9 Geo. II., and charitable objects are enumerated In the lan guage of the statute 43 Eliz. c. 4 ; they must take effect immediately, without any power of revoca tion, reservation, etc., except as to a nominal rent, mines and minerals, or easements, building con tract, or the like ; or, in case of bona fide sale, of a rent charge or annual payment to the vendor; they can never be made by will, but only by deed made with prescribed formalities. III. Exemptions are made of specified quantities of land for parks, museums, and schoolhouses, which may be made by will ; also land for the two universities and other named colleges is excepted from the provisions in the second part of the act. IV. Scotland and Ire land are excluded, and existing charters, etc., are saved.
By the Mortmain and Charitable Uses Act of 1891, land may be assured by will to or for the benefit of any charitable use, hut such land shall, notwithstanding anything in the will contained to the contrary, be sold within one year from the death of the testator unless the time is extended by the high court, or a judge at chambers, or the char ity commissioners, who have power to sanction the retention or-acquisition of such land where It Is required for actual occupation for purposes of char ity. Land under the mortmain acts, 1888 and 1891, is defined to include tenements and hereditaments, corporeal or incorporeal, of any tenure, but not any money, secured on land or any personal estate arising from or connected with land ; 54 & 55 Viet. c. 73, § 3. See Bourchier & Chilcott, Mortmain ; Tudor, Charities, etc. (1906 ed.).
Statutes of mortmain are local in their application and do not affect wills of per sons domiciled in British colonies. A bequest by a 'testator, domiciled in a colony, of mon ey, to his trustees for the purchase of land in England for a charitable object, is valid; 7 H. L. Cas. 124.
See Whitehead, Church Law 174; Tyssen, Char. Beq. 561; 1 Brett, Com. ch. xix.; CHARITABLE USE.