Mortmain

Mortmain (/ˈmɔːrtmeɪn/[1]) is the perpetual, inalienable ownership of real estate by a corporation or legal institution; the term is usually used in the context of its prohibition. Historically, the land owner usually would be the religious office of a church; today, insofar as mortmain prohibitions against perpetual ownership still exist, it refers most often to modern companies and charitable trusts. The term mortmain is derived from Mediaeval Latin mortua manus, literally "dead hand", through Old French morte main.[2] (in modern French, mainmorte).

This article is about mortmain in relation to real estate. For other uses, see rule against perpetuities.

History

During the Middle Ages in countries such as England, the church acquired a substantial amount of real estate. As the church and religious orders were each recognised as a legal person separate from the office holder who administered the church land (such as the abbot or the bishop), the land would not escheat on the death of the holder, or pass by inheritance, as the church and the religious orders would not die. The land was held in perpetuity. This was in contrast to feudal practice in which the nobility would hold land granted by the king in return for service, especially service in war.

Over time, the church gained a large share of land in many feudal states; this was a cause of increasing tension between the church and the Crown.[3]

In 1279, and again in 1290, Statutes of Mortmain were passed by King Edward I to impose limits on the church's holding of property, although limits on the church's power to hold land are also found in earlier statutes, including Magna Carta (1215) and the Provisions of Westminster (1259).[4] The broad effect of these provisions was that the authorisation of the Crown was needed before the land could vest perpetually in a corporation. As an example of the response of the institutions, the chartulary of Chertsey Abbey records that "shortly after one of these statutes vulgarly called Mortmain" 11 acres (4.5 ha) in Ash, Surrey, were held by Robert de Zathe with sufficient common pasture for his flocks and herds, while Geoffrey de Bacsete and his brother William had 28 acres (11 ha).[5]

Although statutes prohibiting mortmain have been abolished in most countries today, a similar legal principle still exists in some jurisdictions in the form of the rule against perpetuities.

Mortmain played an important part in legal history, and earlier case law often needs to be considered against this background. For example, the judicial decision in Thornton v Howe (1862) 31 Beav 14 held that a trust for publishing the writings of Joanna Southcott[6] was charitable, being for the "advancement of religion". This decision is often held up as setting the bar extremely low in determining whether a charity is for the advancement of religion.[7] But if one considers that at the time the statutes against mortmain were in force, and that the effect of the decision was that the trust was void, rather than imbuing it with special privileges in relation to taxation, it puts a very different spin on the ratio decidendi.

Origin of the term mortmain

William Blackstone wrote, in 1765, "The reason of [this] appellation Sir Edward Coke offers many conjectures; but there is one which seems more probable than any that he has given us: viz. that these purchases being usually made by ecclesiastical bodies, the members of which (being professed) were reckoned dead persons in law, land therefore, holden by them, might with great propriety be said to be held in mortua manu. [in dead hands]."[8]

See also

• Cestui que
• Statutes of Mortmain
• Waqf, the Islamic equivalent of mortmain

Footnotes

1. "mortmain". Oxford English Dictionary third edition. Oxford University Press. December 2002. Retrieved 13 January 2019.
2. Dictionary.com, access date: 23 April 2013
3. Herbermann, Charles, ed. (1913). "Mortmain" . Catholic Encyclopedia. New York: Robert Appleton Company.
4. The nascent Provisions of Westminster were repealed by the Crown with Papal consent in 1262 and were formally annulled in 1264. See generally Provisions of Oxford.
5. Exchequer King's Remembrancer Miscellaneous Books vol. 25, p. 30 see H.E. Malden (editor) (1911). "Parishes: Ash". A History of the County of Surrey: Volume 3. Institute of Historical Research. Retrieved 5 November 2012.CS1 maint: extra text: authors list (link)
6. Southcott claimed she was pregnant by the Holy Ghost and would give birth to the new Messiah: a prediction which was apparently not borne out by events.
7. Hanbury & Martin, Modern Equity, cites it as authority for the proposition that "any belief, no matter how outlandish, shared perhaps by only a handful of friends, be entitled to the perpetuity and fiscal advantages given to charities".
8. William Blackstone, Commentaries on the Laws of England, Volume I, "Of the Rights of Persons". Facsimile of the first edition. Chicago: University of Chicago Press, 1979 (London, 1765), p. 467.