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It only remains for me, in reply to Mr. Higgs, to notice the other points as to the validity of a devise to the use between the statute of uses, 27th Henry VIII. and that of wills, 32d of the same reign. This point, according to Mr. Higgs, only admits of arguments founded on probabilities, and he still thinks the opinion of Messrs. Hargrave, Butler, Powell, and others, on this subject, to be just. I have, however, the satisfaction of being able to present Mr. Higgs with an argument, founded upon certainty and fact, and which at the same time, cannot fail to disprove the opinion of the eminent characters just mentioned. In a case between the statutes of uses and of wills, viz. in the soth of IIenry VIII. it became a question, In what cases a use might be changed? And it was held, that if a man declared his use by will, as " I will that my feoffees shall be seized to such a use;" there he may change the use because created by will. So that the validity of a devise of the uses, between the statute of uses, and devises, is made manifest by this case. See the case itself, Bro. Feoff. Al. Uses, pl. 47.
Another correspondent has said, (last Vol. p. 559,) that if the statute of uses does not apply to uses, declared on seisin created by will, it cannot apply to uses declared on a seisin created by virtue of the acts for redeeming the land-tax: but the cases are altogether dissimilar. The reason why the statute of uses does not apply to wills at this day, viz. that no seisin could have been created by a will, at the time of the statute, does not bear upon conveyances under the land-tax acts, because the conveyances by these acts authorized, were in force at the time of the statute of uses, and competent to create a sufficient seisin, whereon uses might have been limited. The land-tax acts do not, like the statute of wills, appoint a new mode of creating a seisin; they merely authorise persons (as tenants for life, for instance) to convey in fee, who otherwise would not be entitled so to do. Lincoln's Inn, March 16, 1704.
P.S. I take this opportunity of enquiring, if Mr. Lmeans to give up his arguments on the subject of powers. In discussing the subject with that gentleman, I should not feel myself called upon to use, nor should I be justified in using a style similar to some of my former communications, because he confined himself to argument. I deemed such a style admissible only in answer to those who themselves endeavour first to hold up others to ridicule.
In a late Number of the Journal some person has assumed the signature which bas been subscribed to my communications, see p. 36. If that person has any particular fancy to the name Studens, I should not have the smallest objection to resign it to him ; but, if he has taken the signature of an old correspondent, in the expectation of having his request more readily complied with by the Editors, I do not think such a practice altogether right."
XII. Copy of Mfr. B.'s further Opinion on a Question,
Whether the Power of selling and exchanging in Settlements
are properly limited to Strangers ? + I SEE no reason whatever to alter my former opinion, that
there is not the slightest ground for Mr. Holliday's opinions. Sept. 9th, 1796.
Copy of Mr. H's Opinion. I cannot concur in either of the objections, which have been taken against the title to Sir A.'s estate of Black Acre.
In respect to the objection from Sir A.'s having levied a fine, instead of suffering a recovery to bar the entail, subsisting when he came to the estates, I agree that a recovery would have guarded against the possibility of having his title affected by any debts or incumbrance of his father, upon the reversion in fee, or by any last will or any other conveyance of bis father. But the father having died intestate, and no debts or conveyance appearing to interrupt or clog, the descent of the reversion to Sir A., I think that the title is good, notwithstanding his having levied a fine, instead of suffering a recovery; indeed I suppose the objection on that account is rather cautionary than one meant to be finally insisted upon.
• We trust that it has happened entirely from mistake, # Vide Law Journal, vol. ii. p. 545.
As to the other objection, which seems to be thought the material one, I think it clear, that the power of sale in Sir Ai's late marriage settlement, is as effectually exerciseable as if it had been reserved to Messrs. B. and F.; the re. leasees to uses, and trustees to prescribe contingent remainders. It would indeed have been more conformable to the common practice, if the power had been intrusted to them. But it is not essential to the execution of powers, that the person's exercising them should have any estate or interest in the land. When the power is annexed to an estate, it is on that account called appendant; where it is vested in one having no interest in the land, the power is called collateral. But both powers are exerciseable with equal effect. The authorities cited by Mr. B. in support of his opinion, strike me as amply sufficient to this doctrine. But further authorities may be cited, and I particularly request attention to the case of a power to executors to sell in Co. Lit. 113; and to the opinion of Mr. Booth, in Mr. Hilliard's edition of Sh. Touch. Probably Mr. Booth's opinion may have considerable influence in subduing the doubt wbich has been raised, whether the remainder to trustees to preserve, was estate enough to make the power of sale effectual ? This doubt might have been answered by pointing out the sufficiency of the remainder in point of estate. But Mr. Booth saw that the principle of the objection was erroneous. He therefore in the most preremptory language denied the principle, forcibly observing, that it is absolutely immaterial to the creation of powers, “ whether they are reserved to the parties that created the uses, or to any one baving an actual use or estate under any limitation in the deed of uses; or to feoflees, grantees, releasees, or to au absolute stranger.”
Nor was he the only one who treated the case in this way, for Mr. Filmer was cousulted on the same occasion, and gave it as his opivion unequivocally, that though the power was not appendant to any estate but was collateral; yet
such collateral power would enable the trustees to convey a good estate in fce-simple. In other words, both Mr. Filmer and Mr. Booth, on the one liand saw that the power of sale to the trustees to preserve was not appendant to their estate in remainder, but was as if a remainder had not been limited to them ; and yet, on the other hand had not the least doubt of the sufficiency of ihe power. The opinion of those two eminent conveyancers operates doubly against the objection to the power in question; for it they are right it is not only a mistake to consider appendancy
to an estate as necessary, but it is equally a mistake to consider the power of sale usually given to releasees to uses, and trustees to preserve contingent remainders, as an appendant power, it being according to the notions of Mr. Filmer and Mr. Booth, as collateral, as if given to persons having no estate or interest of any kind.
Upon the whole, I hope, that upon further consideration both of the objections which have been made against th title in question will appear to be fully obviated. Sept. 10th, 1796.
XIII. On the Power of Commissioners, by Bargain and Sale;
over Bankrupt's Estate Tuil. FOR the reasons I shall mention, I doubt much whe
ther a good title can be made to the lands comprised in the indentures of lease and release, of the 19th and goth of December, 1753.-By the articles of the 11th June, 1711, recited in the release, 'a suin of 1000l. was agreed to be laid out in the purchase of lands, situate within five iniles of London, to be settled
" To the use of Mr. II. H. for life, remainder; “ To E. T. his intended wife for life, remainder; “ To the sons of the marriage in tail male, remainder; “ To the daughters in tail, remainder; “ To his right heirs.
“ The issue of the marriage was a son called J., and a daughter called S.; she married R. C., and had issue by him a son called W. H. H. died, and his son J., in 1748, became bankrupt. On the oth July, 1749, he obtained his certificate.
“ The 10001. had been laid out in the purchase of stock. On the application of E. the widow, part of it was sold, and the inoney raised by the sale of it was laid out in the purchase of the lands in question, and by the indentures of the 19th and 20th of December, 1753, they were scttled
« To the use of said E. for life, remainder;
E. died in her son's life-time. After her decease the commission was renewed, and a new bargain and sale, comprizing the lands in question, was executed by the coinmissioners to the assignees.
These are the circumstances of the case ; and it appears to me very doubtful, whether the effect of them has been to bar either the entail or the remainders over, created by the articles of the 11th June, and the settlement of 1753.
“ Ist. It may be argued, that as the trust expressly directed the money to be laid out in the purchase of lands within five miles of London, it was a breach of trust to lay it out in the purchase of other lands; that if it were a breach of trust, the rights of the parties cannot be affected by it; that it must therefore still be considered as if the money had continued vested in the stock; that by reason of the remainder over, the bankrupt could not have obtained a de. cree to have the stock transferred to himn; or a decree that the lands, when purchased, should be limited to him and his heirs during the existence of the issue in tail; that the assignees are never in a better situation than the bankrupt himself; that while the trust fund continued stock, the bankrupt could not bar the entail, and that therefore the entail, and remainders over, are still subsisting.
2d." But admitting either that the objection to the investinent of the money, in the purchase of the lands in question, cannot be supported; or that if it can be supported, it can be of no consequence, from its being admitted, that the entail is actually barred; still it appears to me very doubtful, whether the remainders over are barred. Where a tenant in tail, expectant on a previous estate for life, becomes bankrupt, it secins admitted, that as without the concurrence of the tenant for lite, he could not have suffered a recovery, and thereby acquired the fee-simple of the lands; but might without his concurrence have levied a fine, and thereby acquired a base fee, determinable on the failure of the issue iu tail. The bargain and sale will therefore operate as a fine, and vest the land in the assignees, for an estate in fee, determinable ou failure of issue of the bankrupt, and not for an absolute estate in fee simple. I have seen' opinions to this effect by counsel of the first eininence, and I have known them acted upon by gentlemen of the greatest skiil and caution.
“ Butto support the present title it must be contended, either that in consequence of the tenant in tail surviving the preceding tenant for lile, the original bargain and sale had fro!n that time the effect of a recovery ; or that the new bargain and sale, being subsequent to the decease of the tenani for lite, bad that operation.
To each of these positions, objections of weight appear