Mortmain - Definition - Law Dictionary Home Dictionary Definition mortmain

Definition :

Mortmain [fr. mort, Fr., dead, and main hand], such a state of possession of land as makes it inalienable; whence it is said to be in dead hand--in a hand that cannot shift away the property. It takes place upon alienation to any corporation, sole or aggregate, ecclesiastical or temporal, 2 Bl. Com. 268.

By several old statutes, alienation of lands and tenements in mortmain, i.e., to religious and other corporations, which were supposed to hold them in a dead or unserviceable hand, were prohibited under pain of forfeiture to the lord, the fruits of whose feudal seigniory (the great hinge of government in those days) were thus impaired. But either with or without the consent of the immediate lords (for this is doubtful), this forfeiture might be dispensed with by a licence in mortmain from the Crown, which licence was made sufficient without any such consent by 7 & 8 Wm. 3, c. 37, repealed and reenacted by the consolidating mortmain and (English) Charitable Uses Act, 1888 (51 & 52 Vict. c. 42), which provides that 'land''which term, by s. 10, includes tenements and hereditaments corporeal and incorporeal of whatsoever tenure, and any estate and interest in land (e.g., a mortgage)--shall not be assured to or for the benefit of, or acquired by or on behalf of, any corporation in mortmain otherwise than under licence from the Crown, or of a statute for the time being in force.

The licence of the sovereign, therefore, is necessary bylaw in all cases, except in the very numerous cases where, as by the (English) Companies Act, 1929, s. 14, the necessity is dispensed with by the statute, or charter constituting the corporation. In some cases a now restriction is imposed, e.g., Trade Unions may, by the (English) Trade Union Act, 1871, s. 7, hold only one acre of land, and Societies to promote Art, Science, Religion or like purposes not involving the acquisition of gain registered under the (English) Companies Act, 1929, may not, by s. 14 of that Act, hold more than two aces without the licence of the Board of Trade.

The so-called 'Mortmain Act' is 9 Geo. 2, c. 36. It provided that no land, or money to be laid out inland, might be given for any charitable use except by deed executed twelve months before the death of the donor, and enrolled within six months after execution. This Act, as amended, is repealed and re-enacted with amendment by the (English) Mortmain and Charitable Uses Act, 1888 (51 & 52 Vict. c. 42), but that Act has been extensively amended by the (English) Mortmain and Charitable Uses Act, 1891 (54 & 55 Vict. c. 73), in the manner pointed out under the title CHARITABLE USES AND TRUSTS. in regard to assurances of land or personalty or enactments declaring a charitable use executed after 1925, alterations and enrolment under s. 4, sub-ss. (6) and (9) of the Charitable Uses Act, 1888, are no longer required, and the assurance or instrument must be sent to the offices of the Charity Commissioners within six months after execution or permitted extension to be recorded. This does not apply to registered land, or to assurances or instruments which are to be sent to the Board of Education [s. 29, (English) Settled Land Act, 1925]; the same s. provides that all land vested in trustees for charitable, ecclesiastical or public trusts or purposes is settled land for the purposes of the Act.

The 'Statute of Mortmain,' or 'De Viris Religiosis,' is 7Edw. 1. Its object was to aid in enforcing the provisions of the great charter on the subject of alienation to religious societies, and to carry that restriction somewhat further, 2 Reeves, 154. This Act also is repealed by the Act of 1888.See, further, CHARITABLE USES AND TRUSTS.