LEAVE. FIRST READING. (Hansard, 9 June 1857)

§ MR. ATHERTON

asked for leave to introduce a Bill to amend the law relating to the conveyance of land for charitable uses. The Bill he proposed was, with some alterations, and, as he believed, improvements, the same as those to which the House had agreed in 1855 and in 1856, but which had not received the assent of the other House. The importance of the measure and its peculiarity induced him to lay before the House a statement of the evils proposed to be remedied by this measure, and the nature of the remedies suggested. The title of the Bill showed that it was to be confined to lands given to charitable, including religious, uses. In ancient times perpetuity was attained by making over lands from a lay proprietor to a corporation, which had the effect of making land inalienable so long as the corporation remained 1473 in existence. In the hands of these corporations lands might be literally considered to be in mortmain, and it was against them that the statutes called the mortmain acts were levelled. Then followed the device of uses and trusts, by means of which lands were given to trustees for charitable or religious uses, the Court of Chancery enforced them, and perpetuity was attained by transfer of the land from one set of trustees to another in succession. Still there was no literal infringement of the mortmain laws. So matters continued until the passing of the existing Mortmain Act, the 9th Geo. II., c. 36. That statute had continued to the present time to be practically the mortmain law of the country. The main and primary object of that Act was to prevent those deathbed bequests of land to charitable and religious uses which were found to prevail at the time, and it provided in effect that no land should be dedicated to charitable uses except by deed. That part of the law he (Mr. Atherton) proposed to leave as it stood. The Act of George II, then proceeded to make certain provisions and to impose certain restrictions with reference to the dedication of land to those purposes by deed; but there was a difference between the case of a bonâ fide sale for a valuable consideration and the case of a voluntary gift, and the reasons which rendered restrictions necessary in one case did not universally apply to the other. In this view he was supported by the Report of a Select Committee which sat in 1852, and which recommended that all restrictions, except enrolment, should be abolished in the case of bonâ fide sales; and that a measure should be introduced to remedy any defects in the titles of lands already devoted to charitable uses where there was no question as to bonâ fide sales having taken place. In the present Bill he proposed to make a distinction between deeds relating to land conveyed for a valuable consideration already executed, and deeds hereafter to be executed. With respect to any past deed he proposed to dispense with the provision that it should have been executed in the presence of two witnesses—the provision which required that it should have been enrolled within six months after its execution—and with the provision that the deed should be without reservation, trust, or agreement, for the benefit of the grantor or person claiming under him. But he proposed to make it a condition 1474 that deeds already executed should have been, or should hereafter be, enrolled within twelve months after the Act coming into operation. It was of great importance that there should be some means of ascertaining how much land had been withdrawn from circulation, if the term might be used, and dedicated to charitable purposes, and also the object and nature of the trusts created. In the case of future deeds of that kind he dispensed with all the requirements of the old statute, except enrolment. With respect to the conveyance of lands not for a valuable consideration the requirements were much the same as those provided by the Act of George II., including the provision that the deed must be executed twelve months prior to the death of the grantor. But under the existing Act, the grantor or conveyor was prohibited from making any reservation for his own benefit. Suppose that in a mining district a site was wanted for a chapel, school, or church, it was not competent for the person granting the surface for a charitable purpose to reserve the minerals for himself, nor even a right of way. Stipulations also as to the formation of streets, or particular classes of buildings, drainage, and the like, were prohibited. It was his object to remove these restrictions in specific instances where he thought they produced inconvenience. Again, it had been the practice in many cases where persons were not disposed to make public the object of the charity to execute a deed conveying the property, and another declaring the trust. The deed enrolled was the conveying one, but he proposed that where deeds of that kind existed, the deed declaring the trust should be enrolled, and he proposed an analogous provision with respect to deeds already executed. Although it might seem easy to a lawyer to talk about Lord Hard-wicke's Act, it was found that, in fact, the titles to many charity properties were in a very unsettled state, through the non-compliance with the provisions of that statute. Those titles it was desirable to clear, and the clearance was therefore one of the objects of his Bill. Such were the main points of the Bill which he now asked the leave of the House to bring in. He believed it had been put in a shape to carry out creditably his intentions, and he had less hesitation in saying so, as he had had the advantage of some suggestions from the Attorney General, and also of two gentlemen 1475 connected with the Statute Law Commission.