Reservation of a Power to Mortgage. A reservation of a power to mortgage or charge may be valid. It is but a power of revocation, 42 which, if absolute, is void as to creditors, purchasers and debtors only, under subsequent sections of this act.43

Power to Charge Generally. A power to charge generally, and a power to jointure,45 may be granted to another, and, therefore, may be reserved under this section, and as between grantor and grantee of the power, such a power to charge generally is valid, and sub modo it is valid as to the limitation in remainder.4 46 A power of sale to be exercised only with the consent of the grantor, and to be manifested by the grantor's joining in the deed, constitutes a valid reservation,47 for such a power may be granted to another.48 45 Towler v. Towler, 142 N. Y.

42 Campbell v. Low, 9 Barb. 585, 592, 593; Marvin v. Smith, 56 id. oco; Newton v. Jay, 107 App. Div. 457.

43 See below, 88 145, 149, 150, 151, 152, 153, 159 and 267, Real Prop. Law.

44 Jackson v. Edwards, 22 Wend. 498, 508; Monjo v. Woodhouse, 185 N. Y. 295.

371.

46 See below, 88 145, 149, 150, 151, 152, 153, 159, Real Prop. Law.

47 Kissam v. Dierkes, 49 N. Y. 602; § 173, Real Prop. Law, and cases there cited.

48 Stokes v. Hyde, 14 App. Div. 530; Phillips v. Davies, 92 N. Y. 199.

§ 145. Effect of power to revoke. Where the grantor in a

conveyance reserves to himself for his own benefit, an absolute power of revocation, he is to be still deemed the absolute owner of the estate conveyed, so far as the rights of creditors and purchasers are concerned.

Formerly section 125, Real Property Law of 1896, chapter XLVI, General Laws:

§ 125. Effect of power to revoke. Where the grantor in a conveyance reserves to himself for his own benefit, an absolute power of revocation, he is to be still deemed the absolute owner of the estate conveyed, so far as the rights of creditors and purchasers are concerned.48%

Section 125 was formerly Revised Statutes, 733, section 86:

§ 86. Where the grantor in any conveyance shall reserve to himself, for his own benefit, an absolute power of revocation, such grantor shall be deemed the absolute owner of the estate conveyed, so far as the rights of creditors and purchasers are concerned.49

Reservation of a Power of Revocation.

A reservation of a power of revocation long before the Revised Statutes endangered the instrument containing it, after the statute of 27 Elizabeth, chapter 4; at least in a voluntary settlement and as to subsequent purchasers.50 While the statute (13 Eliz., chap. 5) did not expressly avoid such instruments as to creditors, a power of revocation to a settlor was deemed a badge of fraud, as he thereby remained the owner of the property.5 These statutes were, in substance, re-enacted in New York,52 and the Revised Statutes made them only more explicit as to powers of revocation,53

51

Effect of Section. The present section (145) of this act likewise avoids instruments containing absolute powers of revocation, but only as to creditors and subsequent purchasers. Its construction depends on the principles long animating the adjudications on the old statutes directed against fraudulent conveyances. An instrument reserving or creating an absolute power of revocation to settlor may

be valid inter partes 54 and void as to the State and other creditors and purchasers prejudiced.55

But a res

Reservation of Power of Revocation in Marriage Settlements. ervation of a power of revocation in a settlement made in contemplation of marriage, in the event that the marriage do not take place, is not an absolute power of revocation within the meaning of this section, and is valid as against creditors.56 The same ends intended by the reservation of a power of revocation may be accomplished by the reservation to settlor of a legal estate, or by the reservation of a reversion after an estate for the life of the intending wife.57

Where the reservation of a power absolute is contained in a covenant to stand seised, or where a fee results to the donee of the power, a question may arise how far a fee and a power may co-exist.58

Power of Revocation Appropriate in Some Settlements.

Not only does

the reservation of a power of revocation not invalidate the instrument in which it is contained in all cases, but such a power is regarded oftentimes as most appropriate, and its omission will be remedied at the suit of the settlor.59

54 Conkling v. Davies, 14 Abb. N. C. 499; Belmont v. O'Brien, 12 N. Y. 394, 404; Van Cott v. Prentice, 104 id. 45; Von Hesse v. MacKaye, 136 id. 114; Locke v. F. L. & T. Co., 140 id. 135, 142; Gilman v. McArdle, 99 id. 451, 457; Lore v. Dierkes, 16 Abb. N. C. 47, 54; Matter of Masury, 28 App. Div. 580; affd., 159 N. Y. 532; Matter of Bostwick, 160 id. 489; Newton v. Jay, 107 App. Div. 457; Real Prop. Law, §§ 262, 263, 267.

55 Id., supra; Von Hesse v. MacKaye, 136 N. Y. 114; Robb v. Washington & Jefferson College, 103 App. Div. 327, 353; Schreyer v. Schreyer, IOI id. 456, 460; Real Prop. Law, § 267.

56 Cf. Belmont v. O'Brien, 12 N. Y. 394, 404; Schreyer v. Schreyer, 43 Newton v. Jay, 107 id. 457, and

Misc. Rep. 520, 101 App. Div. 456; $267, Real Prop. Law.

57 Cf. Adams v. Adams, 114 App. Div. 390, 395; Boon v. Castle, 61 Misc. Rep. 474. No appeal was

taken in this last case as there was a will proven in favor of grantee in the deed.

58 Chance, Pow. 16, 17; 2 id. 623; Farw. Pow. (1st ed.) 27; Goodeve Real Prop. 304; Rankine V. 1 Metzger, 69 App Div. 264; Co. Litt.

237a.

59 Conkling v. Davies, 14 Abb. N. C. 499; Barnard v. Gantz, 140 N. Y. 249; cf. Gibbs v. N. Y. Life Ins. Co., 14 Abb. N. C. 1; Schreyer V. Schreyer, 43 Misc. Rep. 520, and see - cases cited supra, note 54, p. 617, and under $267, Real Prop. Law.

Creditors. As to the mode in which a power of revocation may be enforced by creditors, see section 159; 60 and as to its effect against subsequent purchasers, see section 267.61

Execution of Power of Revocation. What is an execution of a power of revocation in some instances is specified in a subsequent section of this act.62

Infra, Real Prop. Law. 61 Infra, Real Prop. Law.

62 § 267, Real Prop. Law.

§ 146. Power to sell in a mortgage. Where a power to sell real property is given to a mortgagee, or to the grantee in any other conveyance intended to secure the payment of money, the power is deemed a part of the security, and vests in, and may be executed by any person who, by assignment or otherwise, becomes entitled to the money so secured to be paid.

Formerly section 126, Real Property Law of 1896, chapter XLVI, General Laws:

126. Power to sell in a mortgage.- Where a power to sell real property is given to a mortgagee, or to the grantee in any other conveyance intended to secure the payment of money, the power is deemed a part of the security, and vests in, and may be executed by any person who, by assignment or otherwise, becomes entitled to the money so secured to be paid.63

Section 126 was formerly 1 Revised Statutes, 737, section 133:

$133. Where a power to sell lands, shall be given to the grantee, in any mortgage or other conveyance intended to secure the payment of money, the power shall be deemed a part of the security, and shall vest in, and may be executed by any person, who, by assignment or otherwise, shall become entitled to the money so secured to be paid.64

Comment on Section. At common law, if a power of sale was limited to a mortgagee, his heirs and assigns, the transferee of the mortgage might exercise the power.65 But otherwise it was doubtful. The Revised Statutes dispensed with the necessity of a formal limitation to the assignees or heirs of the mortgagee. The assignment of the security now always carries with it the power of sale, contrary to the maxim, delegatus non potest delegare, and with out the necessity of any limitation of the power of sale to the assigns or heirs of the original mortgagee. It is a power coupled with an interest.68

63 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

64 Repealed, chap. 547, Laws of 1896.

65 Chance, Pow. 262; Shaw v. Summers, 3 Moo. 196; Bergen v. Bennett, Caines Cas. 1; Wilson v. Troup, 2 Cow. 195, 236.

66 An assignment might carry the power of sale in equity. Cf. 1 Jones, Mort., § 826.

67 Waterman v. Webster, 108 N. Y. 157, 164.

68 Bergen V. Bennett, I Caines Cas. 1, 15; Houghtaling v. Marvin, 7 Barb. 412.