Mortmain
Encyclopedia
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; 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 trust
s. The term "mortmain" is derived from mediæval French (mort main), literally meaning "dead hand."
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
.
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. 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 held that a trust
for publishing the writings of Joanna Southcott
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. 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
.
formed from the classic legal latin manus, (also present in mancipatio, mando) meaning power, authority (over one's wife, children and slaves) ; and the power and capacity to buy and sell (slaves or estates).
to which was added the medieval legal latin mortuus which does not mean dead but inalienable, unable to be given, rented or sold, as in mortgage. Mortmain means thus incapacity of selling possessions or estates.
Real estate
In general use, esp. North American, 'real estate' is taken to mean "Property consisting of land and the buildings on it, along with its natural resources such as crops, minerals, or water; immovable property of this nature; an interest vested in this; an item of real property; buildings or...
by a corporation or legal institution that can be transferred or sold in perpetuity; 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 trust
Charitable trust
A charitable trust is an irrevocable trust established for charitable purposes, and is a more specific term than "charitable organization".-United States:...
s. The term "mortmain" is derived from mediæval French (mort main), literally meaning "dead hand."
History
During the Middle AgesMiddle Ages
The Middle Ages is a periodization of European history from the 5th century to the 15th century. The Middle Ages follows the fall of the Western Roman Empire in 476 and precedes the Early Modern Era. It is the middle period of a three-period division of Western history: Classic, Medieval and Modern...
in countries such as England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
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
Escheat
Escheat is a common law doctrine which transfers the property of a person who dies without heirs to the crown or state. It serves to ensure that property is not left in limbo without recognised ownership...
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
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
.
In 1279 and again 1290 Statutes of Mortmain were passed by King Edward I
Edward I of England
Edward I , also known as Edward Longshanks and the Hammer of the Scots, was King of England from 1272 to 1307. The first son of Henry III, Edward was involved early in the political intrigues of his father's reign, which included an outright rebellion by the English barons...
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
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
of 1215 and the Provisions of Westminster
Provisions of Westminster
The Provisions of Westminster of 1259 were part of a series of legislative constitutional reforms which arose out of power struggles between Henry III of England and his barons...
of 1259. 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
Trust law
In common law legal systems, a trust is a relationship whereby property is held by one party for the benefit of another...
in the form of the rule against perpetuities
Rule against perpetuities
The common law rule against perpetuities forbids some future interests that may not vest within the time permitted; the rule "limit[s] the testator's power to earmark gifts for remote descendants"...
.
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 held that a trust
Trust law
In common law legal systems, a trust is a relationship whereby property is held by one party for the benefit of another...
for publishing the writings of Joanna Southcott
Joanna Southcott
Joanna Southcott , was a self-described religious prophetess. She was born at Gittisham in Devon, England.-Self-revelation:...
was charitable
Charitable trust
A charitable trust is an irrevocable trust established for charitable purposes, and is a more specific term than "charitable organization".-United States:...
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. 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
Void (law)
In law, void means of no legal effect. An action, document or transaction which is void is of no legal effect whatsoever: an absolute nullity - the law treats it as if it had never existed or happened....
, rather than imbuing it with special privileges in relation to taxation, it puts a very different spin on the ratio decidendi
Ratio decidendi
Ratio decidendi is a Latin phrase meaning "the reason" or "the rationale for the decision." The ratio decidendi is "[t]he point in a case which determines the judgment" or "the principle which the case establishes."...
.
Origin of the term 'Mortmain'
From medieval latin manus mortua.formed from the classic legal latin manus, (also present in mancipatio, mando) meaning power, authority (over one's wife, children and slaves) ; and the power and capacity to buy and sell (slaves or estates).
to which was added the medieval legal latin mortuus which does not mean dead but inalienable, unable to be given, rented or sold, as in mortgage. Mortmain means thus incapacity of selling possessions or estates.
See also
- WaqfWaqfA waqf also spelled wakf formally known as wakf-alal-aulad is an inalienable religious endowment in Islamic law, typically denoting a building or plot of land for Muslim religious or charitable purposes. The donated assets are held by a charitable trust...
the islamic equivalent of mortmain. - Statutes of MortmainStatutes of MortmainThe Statutes of Mortmain were two enactments, in 1279 and 1290, by King Edward I of England aimed at preserving the kingdom's revenues by preventing land from passing into the possession of the Church. In Medieval England, feudal estates generated taxes upon the inheritance or granting of the estate...
- Cestui que