if this is such that a subsequent execution of the power would derogate from the grant. Land over which one has a power is not, apart from statute, liable for his debts; but any estates created by an execution of . the power, in favor of persons not paying a valuable consideration, is so liable. The rule against perpetuities applies to powers, so as to prevent the creation of an estate under the power which will not vest within the legal period. 1 273. Common-law powers. Following the classification of powers stated in the above Aummary, common-law powers are first to be considered.1 The only common-law powers, properly so called, which need be here mentioned, are those given by will to executors, authorizing them to sell lands for the payment of debts or legacies. Such powers existed at common law where land was by custom devisable,2 and after the passage of the Statute of Wills, making land generally devisable, their validity in wills was established." When executors are thus given a power of sale without being given the title to the land, the title vests in the heir or residuary devisee till the sale is made,—that is, till the "execution" of the power,-and then it passes to the vendee, by force of the will, as if it were an executory devise to him, and not by force of the conveyance by the executors; this case being distinguished from that in which there is a devise 1 The classification as given is practically that of Mr. Edwards, as stated in his Law of Property in Land (2d Ed.) 203. This author's admirable outline of the subject of powers has been very considerably utilized in the following pages. Litt. 169: Co. Litt. 112b; Edwards, 203; Gray, Perpetuities, § 124. Mr. Chance shows that there were probably certain other common-law powers, of an unusual character. See Chance, Powers, §§ 5-12. Co. Litt. 112b; Townsend v. Walley, Moore, 341. of the land itself to the executors, with power in them to alienate it, the title in the latter case vesting in the execu tors till the execution of the power, and then passing by their conveyance, and not by the will♦ Powers of agency. Powers of attorney, by which one person is nominated as an agent to make a transfer or do some other act in the name and stead of the principal, are sometimes spoken of as common-law powers. Such an authority, however, while it did exist at common law, is entirely different from the powers here considered, since it is merely an agency in the person to whom the power is given, authorizing him to execute an instrument of conveyance or to do some other act in the place and stead of his principal, the title passing, not by the power of attorney, but by the conveyance subsequently made, which is regarded as made by the principal. A power of attorney creates merely a contractual relation,-rights in personam, as does any other contract of agency; while a Litt. § 169; Co. Litt. 112b, 181b, 236a; Sugden, Powers, 111-115; Mandelbaum v. McDonnell, 29 Mich. 78, 18 Am. Rep. 61; Hope v. John son, 2 Yerg. (Tenn.) 123; Mitchell v. Spence, 62 Ala. 450; Guyer v. Maynard, 6 Gill & J. (Md.) 420; Hoyt v. Day, 32 Ohio St. 101; Shelton v. Homer, 5 Metc. (Mass.) 462; Den d. Elle v. Young, 23 N. J. Law, 478; Thompson v. Gaillard, 3 Rich. Law (S. C.) 418; Brumfield v. Drook, 101 Ind. 190; Todd v. Wortman, 45 N. J. Eq. 723; Greenough v. Welles, 10 Cush. (Mass.) 571; Clark v. Hornthal, 47 Miss. 434; Bradt v. Hodgdon, 94 Me. 559; Smith v. McConnell, 17 Ill. 135, 63 Am. Dec. 340; Ryan v. Duncan, 88 Ill. 144; Spruance v. Darlington, 7 Del. Ch. 111; Moore v. Bedford (Tenn.) 56 S. W. 1038; Ashby v. Ashby, 59 N. J. Eq. 536; In re Journey's Estate, 7 Del. Ch. 1. In the former case, the executor has a "naked power"; in the latter, a "power coupled with an interest." See post, § 279. In Pennsylvania it is provided by statute that a power of sale in See Shippen's the executors shall give them, in effect, an estate. Heirs v. Clapp, 29 Pa. St. 265. Sugden, Powers, 45, 199. power, such as we here treat of, involving dominion over land to a greater or less extent, creates in the person to whom the power is given rights in rem of a proprietary character." 274. Statutory powers. If a power to alien land is given by legislative act, an alienation in pursuance thereof derives its effect from the act. Such a power may be given to the owner of an interest in land, as in the case of the power given in England by statute to life tenants to make leases extending beyond their lives, or the power of sale frequently given by statute to a mortgagee; or it may be given to the holder of an office, as in the case of the power of sale given to the assignee under the present bankruptcy law,1° or that given by statute to an executor to sell land for the payment of debts.11 275. Powers taking effect as executory limitations. In discussing the effect of the Statute of Uses, reference was made to the fact that, by means thereof, legal estates could be created to spring up or shift in the future, not according to limitations in the instrument creating them, but according to the appointment or direction of a person named in such instrument. Similarly, land may be devised to vest in the future according to the direction or "appointment" of a person named in the will. In both these cases there is, in effect, an executory interest limited to a person to be named in the future. The person to whom authority to name the taker is given is said to have a power of appointment, and, upon the • See 2 Austin, Jurisprudence (3d Ed.) 883; Edwards, Prop. Land, 202; Williams (18th Ed.) 362. Sugden, Powers, 45. Edwards, Prop. Land, 76; Farwell, Powers, 597. 10 Act 1898, § 70; Collier, Bankruptcy, 454. 112 Woerner, Administration, § 337. See post, § 474. making of the appointment by him, the person in whose favor he exercises the power takes an interest in the land as . if there had been an executory limitation in his favor in the original instrument.12 Thus, one may convey land to A. and his heirs to such uses as A. (or B., or even the grantor himself) may appoint, and, upon the making of the appointment in favor of C. and his heirs, the land vests in C. in fee simple, by way of springing use, as if the original limitation had been to him; the fee resulting, until appointment, to the grantor. And so one may devise land to such person, and for such an interest, as A. may appoint, and, on the making of the appointment in favor of B. and his heirs, the fee simple vests in B., as by an executory devise to him.18 In case, however, the estate created by the exercise of the power is immediately preceded by another estate, it will take effect as a remainder, and not as an executory interest, in accordance with the rule before stated that a future limitation will always be so treated, if possible." By means of a power of this character, the grantor of an estate may reserve to himself the power to revoke the grant, as in the case of a conveyance by A. to the use of B. and 12 Sugden, Powers, 31, 147, 196; Co. Litt. 271b, Butler's note vii. 1; 1 Leake, 114. 18 A power of appointment given by will is frequently spoken of as a common-law power or authority. See Sugden, Powers, 45; 1 Leake, 377. The expression "common-law" power is in such cases evidently used in contradistinction to a power arising by force of the Statute of Uses. See Farwell, Powers, 175; 1 Leake, 377. A power created by will takes effect under the Statute of Wills (Sugden, 199; Chance, Powers, § 5; Townesend '7. Walley, Moore, 341), and is not, except in the case of a power to executors to sell, which may be distinguished as having been recognized at common law, any more a common-law authority, strictly speaking, than an executory interest is a common-law interest. Sugden calls even a statutory power a common-law authority. Sugden, Powers, 45. 14 Whitby v. Mitchell, 42 Ch. Div. 494, 44 Ch. Div. 85, 5 Gray's Cas. 604. his heirs, with the reservation of a power in A. (or in a third person) to revoke the use thus limited, in which case B.'s estate in fee simple will terminate on the exercise of such power.15 276. Equitable powers. Equitable powers are of two kinds. The first kind consists of powers of appointment, similar to those of the class last described, except that they are exercisable only with reference to equitable interests in the land, the legal title being outstanding in trustees, and not within the purview of the power. Thus, the legal fee may be vested by conveyance or devise in trustees for A. for life, with remainder in trust to such persons as A. shall appoint, and, in default of appointment, in trust for B. in fee simple, in which case the exercise by A. of the power in favor of C. will divest the equitable interest of B. in favor of C., without, however, affecting the legal ownership in the trustees, except that they will, in equity, be compelled to hold for the benefit of C.16 Another kind of equitable power, and one which is of very frequent occurrence, exists when the legal owner of the estate, holding for the benefit of another, is given power to sell or lease or otherwise create estates or interests in the land which will bind the equitable as well as the legal interest. In these cases the grant of the power relieves the legal owner to that extent from the effect of the equitable 18 Sugden, Powers, 363, 478; Jones v. Clifton, 101 U. S. 225; Riggs ▼. Murray, 2 Johns. Ch. (N. Y.) 565; Reidy v. Small, 154 Pa. St. 505. So it has been held that the grantor may reserve a power to mortgage the land. Bouton v. Doty, 69 Conn. 531. Powers of revocation are expressly recognized by the New York statute, and statutes of other states modeled thereon. Chaplin, Exp. Trusts, c. 23. 16 Sugden, Powers, 200; Farwell, Powers, 2. (608) |