Mortmain is a legal term that means ownership of real estate by a corporation or legal institution that can be transferred or sold in perpetuity, usually 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 medieval French (mort main), literally meaning "dead hand."
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 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 go to the king on the death of the holder, as the church and the religious orders would not die. In addition, as the land was held in perpetuity, it would never escheat or pass by inheritance (and no feudal incidents or taxes would be payable upon it).
This was in contrast to feudal practice where the nobility would hold land on grant from the king in return for service, especially service in war. This meant that the church over time gained a large share of land in many feudal states and so was a cause of increasing tension between the church and the Crown.[1]
In 1279 and again 1290 Statutes of Mortmain were passed by King Edward I to circumscribe the church's holding of property, although limits on the church's power to hold land are also found in earlier statutes, including the Magna Carta of 1215 and the Provisions of Westminster of 1259.[2] The broad effect of these provisions was that the authorisation of the Crown was needed before the land could vest perpetually in a corporation.
Although statutes prohibiting mortmain have been abolished in most countries today, the principle still subsists to a certain extent in relation to trust law 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[3] held that a trust for publishing the writings of Joanna Southcott[4] 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,[5] 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.
"Mortmain". Catholic Encyclopedia. New
York: Robert Appleton Company. 1913. http://en.wikisource.org/wiki/Catholic_Encyclopedia_(1913)/Mortmain.
| ←The Exile | Mandragora by Mortmain |
First and Last→ |
| Published in Mandragora (1917) |
[ 105 ]
GREY and ghostly cypresses
Meet above our bed.
That is surely why she presses
Close to me her head.
Dead are we. Be quite at rest!
There can be no harm
If across what was her breast
I should lay my arm.
She was never very brave,
And these damned trees
A most evil whisper have
In the midnight breeze.
Close she clings with body thin;
She was always slender;
Do you hold it a deep sin,
Buried, to be tender?
She is frightened, she would say,
But her lips have gone —
Curse you! Look the other way.
Read our burial-stone!
What? She brought me to this pass?
Brought me to this place?
Oh, it may be! Turn the glass.
She had a lovely face.
 |
This work is in the public domain in
the United States because it was published before
January 1, 1923.
The author died in 1963, so this work is also in the public domain in countries and areas where the copyright term is the author's life plus 30 years or less. This work may also be in the public domain in countries and areas with longer native copyright terms that apply the rule of the shorter term to foreign works. |
MORTMAIN (0. Fr. mortemain; med. Lat. mortua manus,, dead hand), the state or condition of lands or tenements when held by a corporation in perpetual or inalienable tenure. Alienation in mortmain having the effect of depriving the lord of the incidents of seignory, which arose through the death or felony of the tenant or failure of his heirs, many English statutes were passed directed against such alienation. The earliest is that of Henry III. 36 (Magna Carta); others being 7 Edward I. 13, (De Viris Religiosis); 13 Edward I. 32; 15 Richard II. 5; and 23 Henry VIII. 10. The present law is regulated by the Mortmain and Charitable Uses Act 1888, as amended by the act of 1891.
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