appear to be deemed competent to perform the duties of trustees, and to be proper and safe depositories of trusts; and among the almost infinite variety of purposes for which corporations are created at the present day, we find them (a) authorized to receive and take by deed or devise, in their corporate capacity, any property, real and personal, in trust, and to assume and execute any trust so created and declared. The court of chancery is vested with the same jurisdiction over these corporate trusts which it ordinarily possesses and exercises over other trust estates. The directors of corporations, as trustees, are liable personally for a fraudulent misapplication of funds, and that trust moneys may be pursued in the hands of any person receiving them without consideration, or with notice of the trust. One director or trustee may be sued alone for a breach of trust, without bringing the others before the court. Corporations are also created with trust powers of another kind; as

Attorney-General, 2 Bro. P. C. 236. Attorney-General v. City of London, 3 Bro. Ch. R. 171. Dummer v. Corporation of Chippenham, 14 Vesey, 245. See Angell & Ames on Corporations, 3d edit. pp. 124-130, on the powers of a corporation to be seised in trust for the use of another, where the cases are well collected, and the reason of them illustrated. Mr. Preston, in his Treatise on Conveyancing, vol. ii. pp. 247, 254, 257, 263, insists, that the more approved authority and better opinion is, that a corporation cannot stand seised to a use on a conveyance to them, though a corporation may be a cestui que use. In one case it has been admitted that a corporation might give a use; and therefore a bargain and sale in fee by a corporation would be good. But if a corporation can give a use, it can, upon the same principle, equally stand seised to a use; and the rule ought to be consistent and uniform, either that a corporation can give and stand seised to a use, or that they can do neither. The New York statute of May 14th, 1840, ch. 318, with just and politic liberality, authorized any incorporated college, or other literary incorporated institution, to take a grant or conveyance of real or personal estate, to be held in trust; (1.) For an observatory; (2.) To found and maintain professorships and scholarships; (3.) To provide and keep in repair a place of burial for the dead; (4.) For any specific purpose within the authorized objects of their charter. Real and personal estate may also be conveyed to any city or village corporation in trust for education, for the diffusion of knowledge, for the relief of distress, and for ornamental grounds, upon such conditions as the grantor or donor, and the corporation may agree to. It may also be conveyed to commissioners of common schools, and trustees of school districts, for the benefit of common schools therein.

(a) See Farmers' Fire Insurance and Loan Company, Laws of N. Y., April 17th, 1822, ch. 240.

incapacity or unfaithfulness in the corporation or failure of the objects of the charity. Harvard College v. Society for Promoting Theological Education. 3 Gray, 280.

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for the purpose of loaning money on a deposit of goods and chattels, by way of pledge or security. (a) It will soon become difficult to trace the numerous and complicated modifications which corporations are made to assume, and the much greater diversity of objects for which they are created. We are multiplying, in this country, to an unparalleled extent, the institution of corporations, and giving them a flexibility and variety of purpose unknown to the Roman or the English law. The study of this title is becoming every year more and more interesting and important.

(4.) Of their capacity to hold lands, and to sue and be sued. 1. To hold lands.

It was incident at common law, to every corporation, to have a capacity to purchase and alien lands and chattels, unless they were specially restrained by their charters, or by statute. (b) Independent of positive law, all corporations have the absolute jus disponendi of land and chattels, neither limited as to objects nor circumscribed as to quantity.1 They may execute a mortgage to secure a debt. This was so understood by the bar and court in the modern case of The Mayor and Commonalty of Colchester v. Lowten; (c) and this common-law right of disposition continued in England until it was taken away, as to religious corporations, by several restraining statutes, in the reign of Elizabeth. (d) We have not reënacted in New York those disabling acts; but the better opinion, upon the construction of the

(a) The New York Lombard Association, Laws of N. Y., April 8th, 1824, ch. 187. (b) Co. Litt. 44 a, 300 b. Sid. 161, note at the end of the case. 10 Co. 30 b. Com. Dig. tit. Franchise, F. 11, 15, 16, 17, 18. Parker, Ch. J., in First Parish in Sutton v. Cole, 3 Pick. Rep. 239.

1 Kyd on Corp. 76, 78, 108, 115.

(c) 1 Ves. & Bea. 226, 237, 240, 244, and it was so adjudged in the case of Barry v. The Merchants' Exchange Company, 1 Sandford's Ch. Rep. 250.

(d) By the statute of 4 and 5 Wm. IV. c. 76, all lay civil corporations in England are restrained from selling or mortgaging any real estate, except under a government license, in the mode prescribed.

1 This doctrine is controverted and the cases ancient and modern analyzed at great length in Grant on Corporations, pp. 127-139. The learned author endeavors to show that, at common law, corporations are restrained in their right to alienate lands as well as in all their other powers.

statute for the incorporation of religious societies (a) is, that no religious corporation can sell in fee any real estate without the chancellor's order. The powers given to the trustees of religious societies incorporated under that act are limited to purchase and hold real estate, and then to demise, lease, and improve the same for the use of the congregation. This limitation of the corporate power to sell is confined to religious corpora

tions;

and all others can buy and sell at pleasure, *282 except so far as they may be specially restricted by their charters or by statute. (b)1 Corporations have a fee simple for the purpose of alienation, but they have only a determinable fee for the purposes of enjoyment. On the dissolution of the corporation, the reverter is to the original grantor or his heirs; but the grantor will be excluded by the alienation in fee, and in that way the corporation may defeat the possibility of a reverter. (c)

In England, corporations are rendered incapable of purchasing lands without the king's license; 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 corporations by the common law. These statutes are known by the name of the statutes of mortmain, and they applied only to real property; and were introduced during the establishment and grandeur of the Roman church, to check the ecclesiastics from absorbing in perpetuity, in hands that never die, all the lands of the kingdom, and thereby withdrawing them from public and feudal charges. (d) The earlier statutes

(a) Laws of New York, sess. 36, ch. 60, sec. 11. This act has not been either revised or repealed. See N. Y. Revised Statutes, vol. iii. p. 298.

(b) Corporations holding for charitable purposes, says Lord Eldon, 1 Ves. & Bea. 246, can alienate at law, but the alienee will be a trustee.

(c) Preston on Estates, vol. ii. p. 50.

(d) Lord Ch. Brougham observed, that the object of the mortmain act was to prevent land from being placed extra commercium upon the feudal principle of protecting

1 See the provisions of the N. Y. R. S. as to the right of corporations to hold lands. 1 R. S. p. 599, sec. 1.

2 The People v. Mauran, 5 Denio's R. 389. Nicoll v. N. Y. & E. R. R. 2 Kern. 121.

* See Bingham v. Weiderwax, 1 Comst. R. 509.

of mortmain were originally levelled at the religious houses; but the statute of 15 R. II., c. 5, declared that civil or lay corporations were equally within the mischief and within the prohibition; and this statute made lands conveyed to any third person, for the use of a corporation, liable to forfeiture, in like manner as if conveyed directly in mortmain. (a) We have not in this country reënacted the statutes of mortmain, or generally assumed them to be in force; 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, and which usually confine the capacity to purchase real estate to specified and necessary objects; and in the force to

the lords against having tenants who never died, but that there was no intention of preventing by will the investment of moneys in improvements upon land already in mortmain. Giblett v. Hobson, 3 Mylne & Keen, 517.

(a) Co. Litt. 2 b. 2 Blacks. Com. 268-274, and 1 Blacks. Com. 479. The mortmain acts apply to corporations exclusively; and trusts made by feoffment, grant, or devise to unincorporated bodies, for charitable uses and purposes, not deemed superstitious, have not been held to be invalid, under the mortmain act of 23 Hen. VIII. c. 10, and that of 1 Ed. VI. c. 14. Porter's case, 1 Co. 24 a. Martidale v. Martin, Cro. E. 288. Case 5 Ed. VI. cited by the A. V. Chancellor, in Wright v. Trustees of Meth. Epis. Church, 1 Hoffman's Ch. Rep. 248. Adams and Lambert's case, 4 Co. 104 b. Sir F. Moore's Rep. 648. The prohibition to alienate a mortmain was qualified. The right to seize the lands as a forfeiture belonged to the mesne lords and the king, and if they remitted the forfeiture, the alienation was good. The interests of the heir were not considered; he was bound by the alienation. Wilmot's Opinions, p. 9. Attorney-General v. Flood, Hayes's Irish Exch. Rep. 611. The assistant vice-chancellor in Wright v. M. E. Church, in 1 Hoffman's Rep. 254.

In 1843, an attempt was made in the English house of commons to repeal the statutes of mortmain, and allow of the establishment of schools, hospitals, churches, and religious and monastic institutions for the relief of the poor, the encouragement of charity and religion, at the pleasure and with the bounty of individuals; but the motion met with no encouragement, and was withdrawn. The statute of 9 Geo. II. c. 36, is now the leading English statute of mortmains. It declares that no lands or moneys to be laid out thereon, shall be given or charged for any charitable uses, unless by deed, executed in the presence of two witnesses, twelve months before the death of the donor, and enrolled in chancery within six months after its execution, and be made to take effect immediately, without power of revocation. The two universities, and the scholars, upon the foundation of the colleges of Eton, Winchester, and Westminster, were excepted out of the act.

'See The Warden, &c. v. Southeastern Co. 13 Eng. L. & Eq. 240. Bostock v. N. Staffordshire Railway Co. 32 E. L. & Eq. 101. A municipal corporation having power to hold estate real and personal for its public use cannot hold lands beyond its boundaries for a highway. Riley v. City of Rochester, 5 Seld. 64.

be given to the exception of corporations out of the statute of wills, (a) which declares that all persons, other * 283 than bodies politic and corporate, may be devisees of real estate. (b)

The statutes of mortmain are in force in the state of Pennsylvania. It has been there held and declared, by the judges of the supreme court of that state, (c) that the English statutes of mortmain have been received, and considered the law of that state, so far as they were applicable to their political condition; and that they were so far applicable "that all conveyances by deed or will, of lands, tenements, or hereditaments, made to a body corporate, or for the use of a body corporate, were void, unless sanctioned by charter or act of assembly." (d) In the other states it is understood that the statutes of mortmain have not been reënacted or practised upon; and the inference from the statutes creating corporations and authorizing them to hold

(a) 32 Hen. VIII. c. 1. N. Y. Revised Statutes, vol. ii. p. 57, sec. 3.

(b) If corporations are limited in the purchase of lands to lands of a specific yearly value, say 2001., and the value be within the sum prescribed when purchased, and the lands afterwards rise in value by good husbandry, or extraneous causes, the title of the corporation is not thereby affected, and the yearly value at the time of the purchase is all that the limitation requires. This is the just and equitable rule.1 2 Iust.

722.

(c) 3 Binney's Rep. App. 626. The statutes of mortmain apply in Pennsylvania, only so far as they prohibit dedications of property to superstitious uses, or grants to corporations without a statutory license. Methodist Church v. Remington, 1 Watts's Rep. 218.

(d) By the statute in Pennsylvania of 6th of April, 1833, passed since the declaration of the judges mentioned in the text, all purchases of land by any corporation, or by any person in trust for one, without the license of the commonwealth, are made subject to forfeiture, and the same penalty extends to all lands held by corporations existing in other states, either directly or through the medium of trustees or feoffees. Purdon's Dig. 350. But in Runyan v. Lessee of Coster, 14 Peters, 122, it was adjudged that a corporation of another state authorized to purchase and hold lands in Pennsylvania or elsewhere, is competent to purchase and hold lands in that state, subject, nevertheless, to be divested of the estate, and to a forfeiture of it to the state of Pennsylvania, whenever that state thinks proper to institute process for that purpose. The corporation holds a defeasible estate if held without a license procured from Pennsylvania.

The law was so declared in the great case of Bogardus v. Trinity Church, 4 Sandf. Ch. R. 634. If, at the time of the grant, the income exceed the prescribed limit, it is a question between the corporation and the sovereign power, of which third persons cannot avail themselves.