A conveyance by a party out of possession, and with an adverse possession against him, is void, according to the law of Connecticut, Massachusetts, Vermont, Maryland, Virginia, North Carolina, Indiana, and of most of the other states. In Pennsylvania, Kentucky, and Tennessee, the doctrine does not prevail, and a conveyance by a disseisee would seem to be good, and pass to the third person all his right of possession, and of property, whatever it might be. (a) In Connecticut, by the Colony Act of 1727, the seller forfeited half the value of the land. In Massachusetts, the penalty in the statute of 32 Hen. VIII. had never been adopted, though the principle of the common law is assumed that such a conveyance is void. (b) In Indiana such a conveyance is held void at common law. (c) In New York, the purchase of land pending a suit concerning it is champerty, and the purchase is void if made with a knowledge of the suit, and not in consummation of a previous bargain. (d) In Massachusetts there is no statute on the subject, but champerty is considered an offence at common law. (e) The statutes of Westminster 1, c. 25, Westminster 2, c. 49, and particularly the statute of 28 Edw. I. c. 11, established that doctrine, which became incorporated into the common law. The substance of those statutes was made part of the statute law of New York in 1788, and by the New York Revised Statutes, (f) to take a conveyance of land, or of any interest therein, from a person not in possession while the land is the subject of controversy by suit, and with knowledge of the suit, and (a) Stoever v. Whitman, 6 Binney's Rep. 420. Act of Tennessee, 1805, c. 11. 2 Littell, 393. Allen v. Smith, 1 Leigh's Virg. Rep. 231. 4 Kent's Com. 449. (b) 5 Pick. Rep. 348. (c) Fite v. Doe, 1 Blackford's Rep. 127. (f) Vol. 2, 691, § 5. that the grantor was not in possession, is declared to be a misdemeanor. The same principle which would render the purchase of a pretended title void, would apply with much greater force to a purchase while the title to the land was in actual litigation. (a) SECTION II. Persons incompetent to purchase, or competent to purchase, but not to hold property.-Purchases or sales by monasteries, and religious and lay corporations.-Gens de main-morte.-Statutes of mortmain in England and Scotland. Do not extend to the colonies.-To what extent adopted in the United States.-The incapacity of persons under interdict. -Husband and Wife.-Aliens.-Incapacity from the relation in which the parties stand to each other.-Prohibition of the civil law applied to those invested with civil and military authority, and to judges and officers of the courts. To what extent these prohibitions are retained.-The incapacity of tutors, guardians, and others, qui aliena negotia gerunt, under the civil law.-Law of Holland, Spain, England, and Scotland.-The civil law permitted the prohibited persons to make purchases at public sales, or from co-guardians.-This relaxation is not admitted by the law of England or Scotland.-United States. It has been the policy of the several systems of jurisprudence which are here considered, to prevent, or at least subject to the control of the supreme authority of the state, the acquisition of immoveable property by ecclesiastical and lay corporations. Charles the Fifth, by an edict of the 19th of October, 1520, prohibited the purchase of immoveable property, allodial or feudal, by monasteries or churches, without the previous licence of the sovereign. (b) (a) 4 Kent's Com. p. 449. (b) Placit. Holl. vol. 3, p. 396. Voet, lib. 18, tit. 1, n. 11. Perez. Cod. lib. 1, tit. 2, n. 11. In France, churches, communities, chapters, colleges, convents, &c., were designated gens de main-morte. "Gens æterna, eadem perpetuò permanens, quasi in eâ nemo unquam moriatur." By the ancient constitution of that kingdom, they could neither acquire nor hold any immoveable property. (a) At length this incapacity was so far removed, that they might acquire and hold it, provided they previously obtained the licence of the king. This licence was termed amortissement, amortizamentum. A revision of the ordinances of France relative to these institutions was made by the edict of August, 1749, and the declaration of the 20th of July, 1762, and 26th of May, 1774. The Code Civil gives effect to dispositions by gift or by will, in favour of hospitals, poor of townships, or establishments of public utility, so far only as they are authorized by an imperial decree. They are to be accepted by the administrators of such townships or establishments, after being thereto duly authorized. (b) A similar policy was adopted in Spain. These communities have no capacity to acquire and hold property, unless it be conferred on them by the express authority of the sovereign. They possess a very limited power of disposing of such property as they are permitted to acquire and hold. This limitation regards not merely the nature and value of the property which they can alienate, but also the interest in it which they can transfer. (c) In England, corporations are rendered incapable of purchasing lands without the king's licence; and this restriction extends equally to ecclesiastical and lay corporations, and is founded upon a succession of statutes, from Magna Charta, 9 Hen. III., to 9 Geo. II., which took away entirely the capacity which was vested in (a) Dumoulin, sur l'Art 51 de la Cout. Paris. (b) Art. 910, 937. (c) L. 12, tit. 5, lib. 1, Nov. Rec. corporations by the common law. (a) The statutes are known by the name of the Statutes of Mortmain. The parishioners, or inhabitants of any place, or the churchwardens, are incapable of purchasing lands by those names. (b) But it seems that in London, the parson and churchwardens are a corporation to purchase lands. (c) And churchwardens and overseers are enabled, by statute law, (d) to purchase a workhouse for the poor, but this is merely as trustees, and does not affect the general rule of law. (e) In Scotland, feudal subjects granted in donation to churches, monasteries, or public corporations, for religious, charitable, or public uses, are said to be given in mortmain, or mortified; since all casualties must necessarily be lost to the proprietor, where the vassal is a corporation which never dies. (f) The purposes for which lands had been given to the church in the time of Popery, were, after the Reformation, considered superstitious, and the lands declared to belong to the crown by the act of annexation. (g) At the present day, the only lands which continue mortified to the church are the manses and glebes of parochial ministers, which are appropriated to the use of the reformed clergy. But mortifications may still be granted in favour of hospitals, either for the subsistence of the aged and infirm, or for the maintenance and education of indigent children, or in favour of universities, or other public lawful societies, to be holden in blanch or in feu farm. But as the superior loses the casualties, lands cannot be mortified without the superior's consent, (h) and the Barons of the Exchequer, upon this ground, (c) Warner's Case, Cro. Jac. 532. Hargrave's n. (4) to Co. Litt. 3 a. (d) 9 Geo. 1, c. 7, § 4. (e) 2 Sugd. Vend. and Pur. 105. (g) 1587, c. 29. (f) Cr. lib. 1. (h) Cr. lib. 1. Dieg. 10, $ 35. Dieg. 11, § 21. refuse to pass signatures of lands in favour of corporations, that so the crown-revenue may not be impaired by the loss of its casualties. (a) The Statutes of Mortmain do not extend to the colonies of Great Britain. (b) They have not been re-enacted in New York; and the only legal check to the acquisition of lands by corporations, consists in those special restrictions contained in the acts by which they are incorporated, which usually confine the capacity to purchase real estate for the specified and necessary objects; and to the force to be given to the exception of corporations out of the statute of wills, which declares that all persons, other than bodies politic and corporate, may be devisees of real estate. (c) The Statutes of Mortmain are in force in the state of Pennsylvania. In the other states, it is understood, that they have not been re-enacted, or acted on; and the inference from the statutes creating corporations, and authorizing them to hold real estate to a certain limited extent, is, that the corporations created by the statutes of the United States, cannot take and hold real estates for purposes foreign to their institution. (d) A corporation may take a mortgage upon land by way of security for loans made in the course, and according to the usage of, its lawful operations, or in satisfaction of debts previously contracted in the course of dealing. (e) Another class of persons incapable of selling, are those who are placed under interdict. Curators, guardians, and generally those entrusted with the care and administration of the property of others, cannot sell. (a) Erskine, b. 2, tit. 4, § 10 and 11. (b) Attorney Gen. v. Stewart, 2 Meriv. 143. (c) 32 Hen. 8, c. 1. N. Y. Rev. Stat. vol. 2, 57, § 3. 2 Kent's Com. 283. (d) First Parish in Sutton v. Cole, 3 Pick. Rep. 232. (e) Silver Lake Bank v. North, 4 Johns. Ch. Rep. 370. Baird v. Bank of Washington, 11 Serg. and Rawle, 411. |