CHAPTER XVIII.

IV. OF TITLE BY FORFEITURE.

FORFEITURE is a punishment annexed by law to some illegal act, or negligence, in the owner of lands, tenements or hereditaments; whereby he loses all his interest therein, and they go to the party injured, as a recompense for the wrong which either he alone, or the public together with himself, hath sustained.

Lands, tenements, and hereditaments, may be forfeited in various degrees and by various means: 1. By crimes and misdemeanors. 2. By alienation contrary to law. 3. By non-presentation to a benefice, when the forfeiture is denominated a lapse. 4. By simony. 5. By non-performance of conditions. 6. By waste. 7. By breach of copyhold customs. 8. By bankruptcy.

I. The foundation and justice of forfeitures for crimes and misdemeanors, and the several degrees of those forfeitures proportioned to the several offences, have been hinted at in the preceding book; (a) but it will be more properly con sidered, and more at large, in the fourth book of these Commentaries At present I shall only observe in general, that the offences which induce a forfeiture of lands and tenements to the crown are principally the following six: 1. Treason. [*268] 2. Felony. (1) 3. Misprision of treason. 4. Præmunire. *5. Drawing a weapon on a judge, or striking any one in the presence of the king's principal courts of justice. 6. Popish recusancy, or non-observance of certain laws enacted in restraint of papists. (2) But at what time they severally commence, how far they extend, and how long they endure, will with greater propriety be reserved as the object of our future inquiries. (3)

II. Lands and tenements may be forfeited by alienation, or conveying them to another, contrary to law. This is either alienation in mortmain, alienation to an alien, or alienation by particular tenants; in the two former of which cases the forfeiture arises from the incapacity of the alienee to take, in the latter from the incapacity of the alienor to grant.

1. Alienation in mortmain, in mortua manu, is an alienation of lands or tepements to any corporation, sole or aggregate, ecclesiastical or temporal. But these purchases having been chiefly made by religious houses, in consequence whereof the lands became perpetually inherit in one dead hand, this hath occasioned the general appellation of mortmain to be applied to such alienations, (b) and the religious houses themselves to be principally considered in forming the 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, hath obtained a decisive victory.

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 neces[*269] sary, (c) for corporations to have a license in mortmain *from the crown,

to enable them to purchase 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 (b) See Book I, page 479.

(a) Book I, page 299.

(c) F. N. B. 121.

(1) Now by statute 3 and 4 William IV, c. 106, the forfeiture, where it exists at all, is only for the life of the person attainted. See note, p. 254.

(2) These laws are since repealed. See note, p, 257.

(3) [Until the facts of the seisin and of the forfeiture are found by an inquisition on behalf of the crown, or as it is phrased, until "office found," the land remains in the offender, ana may be conveyed by him, subject to being divested upon the recording of the inquisition. See 5 B. and Ad. 765.]

escheats, and other feudal profits, by the vesting of lands in tenants that can never be attainted or die. And such licenses of mortmain seem to have been necessary among the Saxons, about sixty years before the Norman conquest. (d) But, besides this general license 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 license also (upon the same feudal principles), for the alienation of the specific land. And if no such license was obtained, the king or other lord might respectively enter on the land so aliened in mortmain as a forfeiture. The necessity of this license from the crown was acknowledged by the constitutions of Clarendon, (e) in respect. of advowsons, which the monks always greatly coveted, as being the groundwork of subsequent appropriations. (f) Yet such were the influence and ingenuity of the clergy, that (notwithstanding this fundamental principle) we find that the largest and most considerable dotations of religious houses happened within less than two centuries after the conquest. And (when a license 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 newlyacquired signiory, as immediate lords of the fee. But when these dotations began to grow numerous, it was observed that the feudal services, ordained for the defense of the kingdom, 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 of their signiories, their escheats, [ *270 ] wardships, reliefs, and the like; and therefore, in order to prevent this, it was ordered by the second of King Henry III.'s great charters, (g) and afterwards by that printed in our common statute books, that all such attempts should be void, and the land forfeited to the lord of the fee. (h)

But, as this prohibition extended only to religious houses, bishops and other sole corporations were not included therein; and the aggregate ecclesiastical bodies (who Sir Edward Coke observes, (i) 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 bona 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, which are now so frequent in conveyances. This produced the statute de religiosis, 7 Edw. I; which provided, that no person, religious or other whatsoever, should buy, or sell, or receive under a pretence 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.

This seemed to be a sufficient security against all alienations in mortmain: but as these statutes extended only to gifts and conveyances between the parties, the religious houses now 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 [ *271] against the tenant; who by fraud and collusion, made no defence, and thereby judgment was given for the religious house, which then recovered the

(d) Selden, Jan. Angl. 1. 2. § 45.

(e) Ecclesiae de feudo domini regis non possunt in perpetuum dari, absque assensu et consensione ipsius. c. 2, A. D. 1164.

(f) See book I, page 384.

(g) A. D. 1217. cap. 43. edit. Oxon.

(h) Non licet alicui de cætero dare terram suam alicui domui religiosæ, ita quod illam resumat tenendam de eadem domo ; nec liceat alicui domui religiosæ terram alicujus sic accipere,quod tradat illum ei a quo ipsam recepit tenendam : si quis autem de cætero terram suam domui religiosœ sic de deret, et super hoc convincatur, donum suum penitus cassetur, ut terra illa domino suo illius feodi in curratur. Mag. Cart. 9 Hen. III, c. 36. (i) 2 Inst. 75.

land by sentence of law upon a supposed prior title. And thus they had the honour of inventing those fictitious adjudications of right, which are since become the great assurance of the kingdom, under the name of common recoveries. But upon this the statute of Westminster the second, 13 Edw. I, c. 32, 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, (k) in case the tenants set up crosses upon their lands (the badges of knights teniplars 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 evasion, that when the statute of quia emptores, 18 Edw. I, abolished all subinfeudations, and gave liberty for all men to alienate their lands to be holden of their next immediate lord, (7) a proviso was inserted (m) 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 was marked out by the statute 27 Edw. I, st. 2, it was further provided by statute 34 Edw. I, st. 3, that no such license should be effectual, without the consent of the mense or intermediate lords.

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 a new method of conveyance, for 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, [*272 ] while the seisin of the 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. And it is to these inventions that our practisers are indebted for the introduction of uses and trusts, the foundation of modern conveyancing. But, unfortunately for the inventors themselves, they did not long enjoy the advantage of their new device; for the statute 15 Ric. II, c. 5, enacts, that the lands which had been so purchased to uses should be amortised by license from the crown, or else be sold to private persons; and that, for the future, uses shall be subject to the statutes of moitmain, 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 church-yards, such subtle 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. And lastly, as during the times of popery, lands were frequently given to superstitious uses, though not to any corporate bodies; or were made liable in the hands of heirs and devisees to the charge of obits, chaunteries, and the like, which were equally pernicious in a well governed state as actual alienations in mortmain; therefore, at the dawn of the reformation, the statute 23 Hen. VIII, c. 10, declares that all future grants of lands for any of the purposes aforesaid, if granted for any longer term than twenty years, shall be void.

But during all this time, it was in the power of the crown, by granting a license of mortmain, to remit the forfeiture, so far as related to its own rights; and to enable any spiritual or other corporation to purchase and hold any lands or tenements in perpetuity; which prerogative is declared and confirmed by the statute 18 Edw. III, st. 3, c. 3. But, as doubts were conceived at the time of the revolution how far such license was valid, (n) since the kings had no *power to dispense with the statutes of mortmain by a clause of non [ *273 ] obstante, (o) which was the usual course, though it seems to have been (1) 2 Inst. 501. (m) Cap. 3. (n) 2 Hawk. P. C. 391. (o) Stat. 1 W. & M. st. 2, c. 2.

(k) Cap. 33.

unnecessary: (p) and as, by the gradual declension of mesne signiories through the long operation of the statute of quia emptores, the rights of intermediate lords were reduced to a very small compass; it was therefore provided by the statute 7 and 8 Wm. III, c. 37, that the crown for the future at its own discretion may grant licenses to aliene or take in mortmain, of whomsoever the tenements may be holden.

After the dissolution of monasteries under Henry VIII, though the policy of the next popish successor affected to grant a security to the possessors of abbey lands, yet, in order to regain so much of them as either the zeal or timidity of their owners might induce them to part with, the statutes of mortmain were suspended for twenty years by the statute 1 and 2 P. and M. c. 8, and during that time, any lands or tenements were allowed to be granted to any spiritual corporation without any license whatsoever. And, long afterwards, for a much better purpose, the augmentation of poor livings, it was enacted by the statute 17 Car. II, c. 3, that appropriators may annex the great tithes to the vicarages; and that all benefices under 100l. per annum may be augmented by the purchase of lands, without license of mortmain in either case; and the like provision hath been since made, in favour of the governors of Queen Anne's bounty. (q) It hath also been held, (r) that the statute 23 Hen. VIII, before mentioned, did not extend to any thing but superstitious uses; and that therefore a man may give lands for the maintenance of a school, an hospital, or any other charitable uses. But as it was apprehended from recent experience, that persons on their death-beds might make large and improvident dispositions even for these good purposes, and defeat the political ends of the statutes of mortmain; it is therefore enacted by the statute 9 Geo. II, c. 36, that no lands or tenements, or money to be laid out thereon, shall be given for or charged with any charitable uses whatsoever, unless by deed indented. [*274] executed in the presence of two witnesses twelve calendar months before the death of the donor, and enrolled in the court of chancery within six months after its execution (except stocks in the public funds, which may be transferred within six months previous to the donor's death), and unless such gift be made to take effect immediately, and be without power of revocation: and that all other gifts shall be void. (4) The two universities, their colleges, and the scholars upon the foundation of the colleges of Eton, Winchester, and Westminster, are excepted out of this act: but such exemption was granted with this proviso, that no college shall be at liberty to purchase more advowsons, than are equal in number to one moiety of the fellows or students, upon the respective foundations. (5)

2. Secondly, alienation to an alien (6) is also a cause of forfeiture to the crown of the land so alienated; not only on account of his incapacity to hold them, (r) 1 Rep. 24.

(p) Co. Litt. 99.

(q) Stat. 2 and 3 Anne, c. 11.

(4) The statutes of mortmain are in force in Pennsylvania so far as they prohibit the dedication of property to superstitious uses, or grants to corporations without statutory license. 3 Binn. App. 626; Methodist Church v. Remington, 1 Watts, 218; 2 Kent, 282. They have not been adopted in the law of the other states, and corporations may hold property so far as not restricted by their charters, or as it may not be foreign to the purposes of their creation. And even in Pennsylvania a corporation created in another state, with capacity to take property for its corporate purposes, may hold lands subject only to forfeiture to the state. Runyan v. Coster's Lessee, 14 Pet. 122. See further as to conveyances in mortmain, Ang. and A. on Corp. § 149; Grant on Corp. 98, et seq.

(5) The statute 45 Geo. III, c. 101, repealed the restriction imposed by this act on colleges, as to the number of their advowsons, so that now they may hold them without restriction. Mr. Justice Coleridge says he believes it to be understood, however, that neither the statute 9 Geo. II, nor 45 Geo. III, at all affected the restraints of the mortmain laws, and that a license from the crown is still necessary when a college purchases an advowson. Many colleges are provided with a prospective license to purchase in mortmain to a certain extent; and such a license has in practice been considered sufficient.

(6) [An alien may be grantee in a deed, though he cannot hold it; for on "office found" the king shall have it by his prerogative. Co. Litt. 2 b.; 5 Co. 52; 1 Leon. 47; 1 Chitty's Com. L. 162. As to copyhold, see 1 Mod. 17; All. 14.]

which occasions him to be passed by in descents of land, (s) but likewise on account of his presumption in attempting, by an act of his own, to acquire any real property; as was observed in the preceding book. (t)

3. Lastly, alienations by particular tenants, when they are greater than the law entitles them to make, and devest the remainder or reversion, (u) are also forfeitures to him whose right is attacked thereby. As, if tenant for his own life aliens by feoffment or fine for the life of another, or in tail, or in fee; (7) these being estates, which either must or may last longer than his own, the creating them is not only beyond his power, and inconsistent with the nature of his interest, but is also a forfeiture of his own particular estate to him in remainder or reversion. (v) For which there seem to be two reasons. First, because such alienation amounts to a renunciation of the feudal connexion and dependence; it implies a refusal to perform the due renders and services to the [*275 ] lord of the fee, of which fealty is constantly one; and it tends in its consequence to defeat and devest the remainder or reversion expectant: as therefore that is put in jeopardy, by such act of the particular tenant, it is but just that, upon discovery, the particular estate should be forfeited and taken from him, who has shown so manifest an inclination to make an improper use of it. The other reason is, because the particular tenant, by granting a larger estate than his own, has by his own act determined and put an entire end to his own original interest; and on such determination the next taker is entitled to enter regularly, as in his remainder or reversion. The same law, which is thus laid down with regard to tenants for life, holds also with respect to all tenants of the mere freehold or of chattel interests; but if tenant in tail alienes in fee. this is no immediate forfeiture to the remainder-man, but a mere discontinuance (as it is called) (w) of the estate-tail, which the issue may afterwards avoid by due course of law: (x) for he in remainder or reversion hath only a very remote and barely possible interest therein, until the issue in tail is extinct. But, in case of such forfeitures by particular tenants, all legal estates by them before created, as if tenant for twenty years grants a lease for fifteen, and all charges by him lawfully made on the lands, shall be good and available in law. (y) For the law will not hurt an innocent lessee for the fault of his lessor; nor permit the lessor, after he has granted a good and lawful estate, by his own act to avoid it, and defeat the interest which he himself has created.

Equivalent, both in its nature and its consequences, to an illegal alienation by the particular tenant, is the civil crime of disclaimer; as where a tenant, who holds of any lord, neglects to render him the due services, and upon an action brought to recover them, disclaims to hold of his lord. Which disclaimer of tenure in any court of record is a forfeiture of the lands to the lord (z), upon reasons most apparently feudal. And so, likewise, if in any court of record the *particular tenant does any act which amounts to a virtual dis[ *276 ] claimer; if he claims any greater estate than was granted him at the first infeodation, or takes upon himself those rights which belong only to tenant of a superior class; (a) if he affirms the reversion to be in a stranger, by accepting his fine, attorning as his tenant, collusive pleading, and the like; (b) such behaviour amounts to a forfeiture of his particular estate. (8)

(s) See pages 219, 250.
(w) See Book III, ch. 10.

(t) Book I. pages 372. (x) Litt. 595-597. (b) Ibid. 253.

(a) Co. Litt. 252.

(u) Co. Litt. 251.
(y) Co. Litt. 233.

(v) Litt. § 415.
(2) Finch, 270, 271.

(7) But now by statute 8 and 9 Vic. c. 106, it is enacted that no feoffment shall have a tortious operation. and fines and recoveries in England are abolished. Forfeiture for this cause, therefore, cannot now take place, as the doctrine never applied to conveyances under the Statute of Uuses. 1 Cruise Dig. 109; 1 Washb. Real Prop. 92. In the United States it is declared by statute in many of the states that a deed purporting to convey a greater interest than the grantor has shall not work a forfeiture, but shall be effectual to transfer his actual interest. And this is perhaps the law in the other states also. See 1 Washb. Real Prop. 92, and cases cited. As to forfeiture by disclaimer of tenure, see Doe v. Flynn, 1 C. M. and R. 137; Doe v. Wells, 10 A. and E. 427.

(8) [If a servant sets up a title hostile to his landlord, it is a forfeiture of his term; and it is the same if he assists another person to set up such a claim; 1 C., M. and R. 141. See 1 Per