Restriction on the sale, mortgage, or leasing of charity lands

(r) Stat. 54 & 55 Vict. c. 73, s. 3; above, pp. 450, 456, n. (d).

(s) See Gentle v. Faulkner, 1900, 2 Q. B. 267.

(t) See Wms. Real Prop. 190, -1st ed.; Adtington v. Cann, 3 Atk. 141, 150; Boson v. Statham, 1 Eden, 508, 513.

(u) Stat. 18 & 19 Vict. c. 124, passed 14th August, 1855. According to the previous law the alienation of charity lands was not absolutely prohibited, but was liable to be set aside if not provident and beneficial to the charity. And a sale or other alienation of charity lands might well be made under the direction of the Court of Chancery, or by the trustees of a charity acting under express powers conferred by the author of the trust. But if a sale or other disposition of charity lands were made by the trustees without the authority of the Court or any such express powers, the burden lay on the purchaser or other person taking under the disposition of proving that the transaction was provident and beneficial to the charity: and if he failed to establish this the disposition would be set aside, unless the defence of purchase for value without notice of the trust or of the Statute of Limitations could be maintained. See A.-G. v. Warren, 2 Swanst. 291, 302; A.-G. v. Hungerford, 2 Cl. & Fin. 357; A.-G. v. Bret-tinghani, 3 Beav. 91; A.-G. v. South Sea Co., 4 Beav. 453; Magdalen College, Oxford v. A.-G., 6 H. L. C. 189, 205, 213; Re Ash-ton Charity, 22 Beav. 288; Re Clergy Orphan Corp.. 1894, 3 Ch. 145, 154; Re Mason's Orphanage amd London and North Western Rail. Co., 1896, 1 Ch. 54, 59, 603, 604.

(x) Re Mason's Orphanage, etc., 1896, 1 Ch. 54, 596; Fell v. Official Trustee of Charity Lands, 1898, 2 Ch. 44.

(y) Bangor v. Parry, 1891, 2 Q.'B. 277.

(z) See Tudor's Charitable Trusts, 3, 181 sq., 184 sq., 195 sq., 593, 596 sq., 4th ed.; stats. 16 & 17

Vict. c. 137, ss. 28, 29, 32, 43; 23 & 24 Vict. c. 136, s. 2.

(a) lie Mason's Orphanage, Sec.c., 1896, 1 Ch. 54, 596: A.-G. v. National Epileptic Hospital, 1904, 2 Ch. 252; A.-G. v. Mathieson, 1907, 2 Ch. 383.

(b) Stat. 18 & 19 Vict. c. 124, ss. 47, 48.

(c) By sect. 62 of the Charitable Trusts Act, 1853, this Act shall not extend to (1) The Universities of Oxford, Cambridge, London or Durham, or any college or hall in the said universities of Oxford, Cambridge and Durham; or to and partly by income arising from any endowment, the powers and provisions of the Act shall, with respect to such charity, extend and apply to the income from endowment only, to the exclusion of voluntary subscriptions, and the application thereof; and no donation or bequest unto or in trust for any such charity as last aforesaid, of which no special application or appropriation shall be directed or declared by the donor or testator, and which may legally be applied by the governing or managing body of such charity as income in aid of the voluntary subscriptions, shall be subject to the jurisdiction or control of the Board of Charity Commissioners or the powers or provisions of this Act; and no portion of any such donation or bequest as last aforesaid, or of any voluntary subscription, which is now or shall or may from time to time be set apart or appropriated and invested by the governing or managing body of the charity, for the purpose of being held and applied or expended for or to some defined and specific object or purpose connected with such charity, in pursuance of any rule or resolution made or adopted by the governing or managing body of such charity, or of any donation or bequest in aid of any fund so set apart or appropriated for any such object or purpose as aforesaid, shall be subject to the jurisdiction or control of the said Board or the powers or provisions of this Act: and (10)Nothing in this Art shall subject the funds or property of any missionary or other similar society, or the missionaries,

(2) Any cathedral or collegiate church (see Re Dod's Charity, 1905, 1 Ch. 442); or to

(3) Any building registered as a place of meeting for religious worship with the Registrar-General of Births, Deaths or Marriages in England or Wales, and bond fide used as a place of meeting for religious worship (see stats. 18 & 19 Vict. c. 81, s. 9; 32 & 33 Vict c. 110, s. 15); or to

(4) The Commissioners of Queen Anne's Bounty; or to

(5) The British Museum; or to

(6) Any friendly or benefit society or savings bank; or to

(7) Any institution, establishment, or society for religious or other charitable purposes, or the auxiliary or branch associations connected therewith, wholly maintained by voluntary contributions; or to

(8) Any bookselling or publishing business carried on by or under the direction of any society wholly or partially exempted from this Act, so far as such business is or shall be carried on by means of voluntary contributions only, or the capital or stock of such business; and

(9) Where any charity is maintained partly by voluntary subscriptions teachers, or officers of such society, or of any branch thereof, which funds or property shall not be within the limits of England or Wales, to the jurisdiction of the said Board:

Provided always, that the said exemption shall not extend to any cathedral, collegiate, chapter, or other schools. See also sect. 60.

Under the Charitable Trusts Act, 1853 (d), the Charity Commissioners may authorise the sale, exchange, mortgage (c), or leasing of charity lands, where advantageous to the charity; and leases, sales, exchanges, and other transactions so authorised shall have the like effect and validity as if they had been authorised by the express terms of the trust affecting the charity (f). Thus, where express powers of alienation have not been conferred on the trustees of charity lands, the Charity Dispositions of charity lands by authority of the Charity Commissioners.

It has been held that, by charities wholly maintained by voluntary contributions, it is intended to describe charities which have no invested endowment yielding an income for their support, or other property permanently available for the purposes of the charity (as freehold land owned and occupied for such purposes), but are entirely dependent on the gifts of the benevolent, whether recurrent or occasional, and whether inter vivos or by will; A.-G. v. Mathieson, 1907, 2 Ch. 383. With regard to charities maintained partly by voluntary subscriptions and partly by income arising from any endowment, it has been held that the income of any endowment prima facie means income derived from any invested funds; that in the case of such charities, bequests and donations for the general purposes of the charity, which may be lawfully applied as income consistently with the terms of the gift, are exempt from the operation of the Acts; and that, so long as they remain so applicable as income, such gifts and the income thereof are not brought within the operation of the Acts by being invested, even in the purchase of land. So that in the case of the last-mentioned charities, land bought by the trustees with the produce of such gifts can be disposed of without the consent of the Charity Commissioners, and, further, appears to be alienable by the trustees at their discretion without subjecting the purchaser to the burden of proving that the alienation was beneficial to the charity; above, p. 459, n. (u); see Re Clergy Orphan Corporation, 1894, 3 Ch. 145, 150, 154; Royal Society of London and Thompson, 17 Ch. D. 407; Finnis and Young to Forbes and Pochin, 24 Ch. D. 587, 591; Re Gilchrist Educational Trust, 1895, 1 Ch. 367; Re Stockport, etc. Schools, 1898, 2 Ch. 687; Re Church Army, 1906, W. N. 73; 94 L. T. 559; A.-G. v. Mathieson, 1907, 2 Ch. 383, 393; Re Society for training Teachers of the Leaf and Whittle"s Contract, ib. 486; Re Wesleyan Methodist Chapel, South Street, Wandsworth, 1909, 1 Ch. 484; see also Corporation of Sons of Clergy and Skinner, 1893, 1 Ch. 178; sed quaere whether this case is consistent with Re Mason's Orphanage, etc, 1896, 1 Ch. 54, 596. If however any land so purchased be by deed or otherwise so settled or appropriated to some particular charitable purposes that it is no longer competent for the governing body of the charity to apply the proceeds of a sale thereof as income, it will become an endowment and be subject to the jurisdiction and control of the Charity Commissioners; A.-G. v. Mathieson, ubi sup.