of the trust (c). Again, where fraud constitutes the ground of the equitable demand, the time begins to run from the moment when the fraud was, or might with reasonable diligence have been, discovered (d); the usual protection afforded by the court to bond fide purchasers for valuable consideration without notice being reserved, as well as all other rules of the court in refusing relief on the ground of acquiescence or otherwise. The rules which the statute has laid down as to the bar to relief [* 435 ] in equity, which time affords, are very much the same as those which the court acted upon before the statute (e). The court does not recognize a mistake as a reason for extending the time within which suits may be brought (ƒ); and stale demands generally are looked upon, whatever be their nature, with great disfavour (g). Claims to advowsons are to be barred after three incumbencies obtained adversely to the right of the claimant, and those through whom he claims, or sixty years, whichever is the longest period (h), an extreme limit of 100 years, from the time of a clerk being presented adversely to the claim, being imposed (i). Title by statute against the Crown and the Duke of Cornwall. Limitation to actions and suits to recover money charged upon lands. The statute we have been discussing does not apply when the Crown or the Duke of Cornwall is the claimant. But by another statute, possession for sixty years gives a title against the Crown (j) and against the Duke. We may mention as convenient to be here stated as forming part of the same act-though but indirectly connected with the subject of this chapter- that actions and suits to recover money charged upon any lands or rents, or any legacy (whether so charged or not) are made. subject to the same limitation as to time as the actions and suits concerning land and rent (k). Moreover, no arrears of *dower or rent or of interest upon money charged upon land or rent are to be recovered by any distress, action [*436 ] or suit; but within six years after they become due (1), or after some acknowledgment in writing, signed by the person by whom the same is payable or his agent, shall have been given to the claimant or his agent. Arrears of rents. (c) Sect. 25. See Knight v. Bowyer, 2 De G. & J. 421; Lewis v. Duncombe, 29 Beav. 175; Dickenson v. Teasdale, 1 De G. J. & S. 52, where it was held that a general charge of debts did not create an express trust within the section; and the like was held in Proud v. Proud, 32 Beav. 234. (d) Sect. 26. See Manby v. Bewicke, 3 K. & J. 342. (e) Cholmondeley v. Clinton, 2 Jac. & W. 1, 152. Sir T. Plumer fully explained the doctrine of the court as to the effect of lapse of time. His judgment was affirmed by the House of Lords. (f) See Cully v. Doe d. Taylerson, 11 A. & E. 1008; In re Peats' Trust, L. R. 7 Eq. 302. (g) Pickering v. Lord Stamford, 2 Ves.581; Cholmondeley v. Clinton, ubi sup. As to arrears of rent which the court allows, see Hicks v. Sallitt, 3 De G. M. & G. 782; Penny v. Allen, 7 De G. M. & G. 409. (h) Sect. 30. By sect. 32 it is declared that incumbrances after a lapse are to be reckoned, but not after a promotion to a bishopric. (i) Sect. 33. (j) 9 Geo. 3, c. 16, 24 & 25 Vict. c. 62; ante, p. 100; and as to the Duke of Cornwall, 7 & 8 Vict. c. 105, 23 & 24 Vict. c. 53, 24 & 25 Vict. c. 62. (k) See Sheppard v. Duke, 9 Sim. 567; Prior v. Horniblow, 2 Y. & C. 200; Philippo v. Munnings, 2 M. & Cr. 309; Cox v. Dolman, 2 De G. M. & G. 592. (7) Sects. 41, 42. See Snow v. Booth, 8 De G. M. & G. 69. More than six years' arrears charged upon a reversionary interest in land may be recovered after the land falls into possession. Wheeler v. Howell, 3 K. & J. 198. In re Lowe's Settlement, 30 Beav. 95, and it seems that a mortgagee selling under a power may retain out of the purchase-money all arrears of interest. Edmunds v. Waugh, L. R. 1 Eq. 418. Though in a foreclosure suit (it being within the terms of the section) he can only recover six years' arrears. Shaw v. Johnson, 1 Dr. & S. 412; Round v. Bell, 30 Beav. 121. These questions as to recovery of arrears of interest and rent are somewhat complicated by the provisions of another act passed in the same session of parliament (m), which allows actions or suits for money, secured by covenant, bond, or other specialty, to be recovered at any time within twenty years; which provision, since most rent, interest and other similar payment is usually so secured, often applies to cases falling within the section we have been last noticing. [*437] *CHAPTER XVIII. TITLE BY FORFEITURE. FORFEITURE (forisfactura) is a punishment annexed by law to some illegal act, or negligence, in the owner of lands, tenements, or hereditaments; whereby he loses his interest therein, which thereupon either vests in the person immediately suffering the injury, or in the crown, or in some other functionary occupying a position representative of public interests. When the forfeiture is to the crown, the land does not vest in the crown, ipso facto by the cause of forfeiture, but it is only after a solemn inquisition on behalf of the crown and the finding by the jury of the facts and recording the same, or as it is phrased, upon "office found," that the land becomes the property of the crown (a). And when the forfeiture is to a subject, as for instance the lord of the fee, the title, except against him, remains unaffected by the forfeiture; but the land is subject to the entry of the lord for the forfeiture (b). Lands, tenements, and hereditaments, may be forfeited in various degrees and by various means: 1. By crime. 2. By alienation contrary to law. 3. By wrongful disclaimer. 4. By non-presentation to a benefice; when the forfeiture is denominated a lapse. 5. By simony. *6. By non-performance of conditions. 7. By breach of copyhold customs (c). [*438] I. We have already (d) had occasion to notice so much of the law of forfeiture by the crime of the tenant as is sufficient in this part of these commentaries. As we there noticed, the ancient rigour of the law has I. Forfeiture by attainder. been much relaxed in this respect: moreover, the common practice of the government of conferring upon the family or relations of the offender the interest which accrues to the crown by the forfeiture (e) has still further diminished the substantial importance of this law: which, however, in (m) 3 & 4 Will. 4, c. 42, see sect. 3. (a) Perkins Profitable Book, tit. Grants, s. 26; Com. Dig. tit. Capacity, D. 6; Shep. Touch. 232; Doe d. Griffith v. Pritchard, 5 B. & Ad. 765, where it was held that an attainted felon might bring ejectment, no office having been found. (b) Co. Litt. 2 b; 10 Rep. 30. (c) Formerly waste committed by a tenant for life or for years was a ground of forfeitSee Statutes of Marlbridge, 52 Hen. 3, ure. its present form, is well suited to the ends of justice. The nature of the crimes and the particular circumstances under which the forfeiture is incurred will appear in our future inquiries. II. Lands and tenements may be forfeited by alienation, or conveying them to another, contrary to law. This is either alienation in mortmain, or alienation to an alien, in which cases the forfeiture arises from the incapacity of the alienee to hold lands (ƒ). II. For alienation 1. Alienation in mortmain. 1. Alienation in mortmain, in mortua manu, is an alienation of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal. * These purchases having been in ancient times chiefly made by religious houses, the consequence of which was [* 439 ] that the lands became perpetually inherent in one dead hand, the general appellation of mortmain came to be applied to such alienations, and the religious houses themselves to be principally considered in framing the various ancient statutes of mortmain: in deducing the history of which statutes, it will be matter of curiosity to observe the great address and subtle contrivance of the ecclesiastics. in eluding from time to time the laws in being, and the zeal with which successive parliaments have pursued them through all their finesses; how new remedies were still the parents of new evasions: till the legislature at last, though with difficulty, obtained a decisive victory. main. By the common law any man might dispose of his lands to any other private man at his own discretion, especially when the feudal restraints of alienation were worn away. Yet, in consequence of these, it was always, and is still Licences in mort- necessary (g), for corporations to have a licence in mortmain from the crown to enable them to hold (h) lands; for as the king is the ultimate lord of every fee, he ought not, unless by his own consent, to lose his privilege of escheats and other feudal profits, by the vesting of lands. in tenants that can never be attainted or die. There are traces of licences of mortmain among the Saxons, above sixty years before the Norman conquest, though the extent of their application seems doubtful (i). But, besides this general licence from the king, as lord paramount of the kingdom, it was also requisite, whenever there was a mesne or intermediate lord between the king and the alienor, to obtain his licence also, (for the same reasons founded upon feudal principles,) for the alienation of the specific land. And if no such licence was obtained, the king or other* lord might respectively enter [* 440 ] on the land so aliened in mortmain as a forfeiture. The necessity of this licence from the crown was acknowledged by the constitutions of Clarendon (k), in respect of advowsons, which the monks always greatly coveted, as being the groundwork of subsequent appropriations. Yet, such were the influence and ingenuity of the clergy, that (notwithstanding this fundamental principle) we find that the largest Evasions of the rule by the clergy. (f) As we have already (pp. 262, 355) had occasion to notice, formerly tortious alienations by particular tenants, as where a tenant for life aliened by feoffment to another in fee-simple or fee-tail, had the effect of a forfeiture of the life estate. This effect has, since the year 1845, been abolished, 7 & 8 Vict. c. 76, s. 7, repealed, but re-enacted in other words by 8 & 9 Vict, c. 106, s. 4. VOL. I.-88 (g) F. N. B. 121. (h) Co. Litt. 2 b; 10 Rep. 30. (i) Selden, Jan. Angl. 1, 2, s. 45. Mr. Hallam doubts whether there was any restraint on alienations in mortmain prior to Magna Charta. Middle Ages, vol. 2, 321. (k) Ecclesiae de feudo domini regis non possunt in perpetuum dari, absque assensu et consensione ipsius. C. 2, A. D. 1164. and most considerable dotations of religious houses happened within less than two centuries after the conquest. And (when a licence could not be obtained), their contrivance seems to have been this: that, as the forfeiture for such alienations accrued in the first place to the immediate lord of the fee, the tenant who meant to alienate first conveyed his lands to the religious house, and instantly took them back again, to hold as tenant to the monastery; which kind of instantaneous seisin was probably held not to occasion any forfeiture: and then, by pretext of some other forfeiture, surrender or escheat, the society entered into those lands in right of such their newly acquired seigniory, as immediate lords of the fee. But, when these dotations began to grow numerous, it was observed that the feudal services so highly valued in those days were every day visibly withdrawn; that the circulation of landed property from man to man began to stagnate; and that the lords were curtailed of the fruits Further prohibi- of their seigniories, their escheats, wardships, reliefs and the like; therefore in order to prevent this, it was ordained by the second of king Henry III.'s great charters (1), and afterwards by that printed in our common statute-books, that all such attempts by religious houses should fail in their object, and the land should be forfeited to the lord of the fee (m). tions. Statute De *But, as this prohibition did not extend beyond religious houses, [* 441 ] bishops and other sole corporations were not included in it: and the aggregate ecclesiastical bodies (who, sir Edward Coke observes (n), in this were to be commended, that they ever had of their counsel the best learned men that they could get) found many means to creep out of this statute, by buying in lands that were bond fide holden of themselves as lords of the fee, and thereby evading the forfeiture; or by taking long leases for years, which first introduced those extensive terms, for a thousand or more years, religiosis. which are now so frequent in conveyances. This produced the statute De religiosis, 7 Edw. 1, stat. 2, A.D. 1279; which provided that no person, religious or other whatsoever, should buy, or sell, or receive from any one under colour of a gift, or term of years, or any other title whatsoever, nor should, by any art or ingenuity, appropriate to himself any lands or tenements in mortmain upon pain that the immediate lord of the fee, or, on his default for one year, the lords paramount, and in default of all of them, the king, might enter thereon as a forfeiture. Origin of common This seemed to be a sufficient security against all alienations in mortmain: but these statutes extended only to gifts and conveyances between the parties; the religious houses therefore bethought themselves of a new recoveries. device, began to set up a fictitious title to the land, which it was intended they should have, and to bring an action to recover it against the tenant; who, by fraud and collusion, made no defence; judgment then was given for the religious house, which thereupon recovered the land by sentence of law upon a supposed prior title, which was, in fact, a mere myth. It was thus that those fictitious adjudications of right, which afterwards became and () A. D. 1217, cap. 43, edit. Oxon. (m) Nec liceat de cetero alicui dare terram suam alicui domui religiose, ita quod illam resumat de eadem domo tenendam. Nec liceat alicui domui religiose terram alicujus sic accipere, quod tradat illum illi a quo ipsam recepit tenendam. Si quis autem de cetero Statute of Westminster 2nd. longcontinued the great assurances of the kingdom, under the name of common recoveries, were invented. The honour of their [* 442] discovery, such as it is, rests with the clergy (0). But very soon afterwards the statute of Westminster the second, 13 Edw. 1, c. 32, a. D. 1285, enacted, that in such cases a jury shall try the true right of the demandants or plaintiffs to the land, and if the religious house or corporation be found to have it, they shall still recover seisin; otherwise it shall be forfeited to the immediate lord of the fee, or else to the next lord, and finally to the king, upon the immediate or other lord's default. And the like provision was made by the succeeding chapter (p), in case the tenants set up crosses upon their lands (the badges of knights templars and hospitallers) in order to protect them from the feudal demands of their lords, by virtue of the privileges of those religious and military orders. So careful indeed was this. provident prince to prevent any future evasions, that when the statute of Quia emptores, 18 Edw. I., abolished all sub-infeudations, and gave liberty for all men to alienate their lands to be holden of their next immediate lord (q), a proviso was inserted (r) that this should not extend to authorize any kind of alienation in mortmain. And when afterwards the method of obtaining the king's license by writ of ad quod damnum had been sanctioned by the statute 27 Edw. 1, st. 2, it was farther provided by statute 34 Edw. 1, st. 3, that no such licence should be effectual, without the consent of the mesne or intermediate lords. Invention of uses. Yet still it was found difficult to set bounds to ecclesiastical ingenuity; for when they were driven out of all their former holds, they devised or turned to this object a new method of conveyance, by which the lands were granted, not to themselves directly, but to nominal feoffees to the use of the religious houses; thus distinguishing between the possession and the use, and * receiving the actual profits, while the seisin of the [* 443 ] lands remained in the nominal feoffee; who was held by the courts of equity (then under the direction of the clergy) to be bound in conscience to account to his cestuy que use for the rents and emoluments of the estate (s). And it is to this last invention that modern practitioners are indebted for the introduction of uses and trusts, the foundation of much of the conveyancing of the present day (t). But, unfortunately for the inventors themselves, they did not long enjoy the advantage of their new devise; for the statute 15 Rich. 2, c. 5, enacts, that the lands which had been so purchased to uses should be amortised by licence from the crown, or else be sold to private persons; and that, for the future, uses shall be subject to the statutes of mortmain, and forfeitable like the lands themselves. And whereas the statutes had been eluded by purchasing large tracts of land, adjoining to churches, and consecrating them by the name of churchyards, such subtile imagination is also declared to be within the compass of the statutes of mortmain. And civil or lay corporations, as well as ecclesiastical, are also declared to be within the mischief, and of course within the remedy provided by those salutary laws. Stat. 15 Rich. 2 against uses in mortmain. But, during all this time, it was in the power of the crown, by granting a (0) Ante, p. 227. (p) Cap. 33. (q) 2 Inst. 501. (r) Cap. 3. (8) See post, vol. iii. p. 38. |