Powers Coupled with Interest. It is a general rule of law, that a naked authority expires with the life of the person who gave it, but a power coupled with an interest is not revoked by the death of the grantor.70 Chancellor Kent was of the opinion that even before the Revised Statutes, a power of sale in a mortgage was a power with an interest.71 The Revised Statutes ended all doubt upon the subject.72

69 Farmers' Loan & Trust Co. v. Wilson, 139 N. Y. 284; Hoffman v. Union Dime Savings Bank, 109 App. Div. 24.

70 White v. Wagner, 31 Misc. Rep. 408.

71 Bergen v. Bennett, 1 Cai. Cas. at P. 15.

72 1 R. S. 737, § 133, supra; Terwiliger v. Ontario & S. R. R. Co., 149 N. Y. 94.

§ 147. When power is a lien. A power is a lien or charge on the real property which it embraces, as against creditors, purchasers and incumbrancers in good faith and without notice, of or from a person having an estate in the property, only from the time the instrument containing the power is duly recorded. As against all other persons, the power is a lien from the time the instrument in which it is contained takes effect.

Formerly section 127, Real Property Law of 1896, chapter XLVI, General Laws:

§ 127. When power is a lien. A power is a lien or charge on the real property which it embraces, as against creditors, purchasers and encumbrancers in good faith and without notice, of or from a person having an estate in the property, only from the time the instrument containing the power is duly recorded. As against all other persons, the power is a lien from the time the instrument in which it is contained takes effect.73

Section 127 was formerly 1 Revised Statutes, 735, section 107:

8 107. Every power shall be a lien or charge upon the lands which it embraces, as against creditors and purchasers in good faith and without notice, of or from any person having an estate in such lands, only from the time the instrument containing the power shall be duly recorded. As against all other persons, the power shall be a lien from the time the instrument in which it is contained, shall take effect.74

Recording Acts. This section is a part of the systematic legislation relating to the recording of certain instruments affecting title to real property in public record offices.75 This section originally probably referred exclusively to beneficial powers, which are necessarily rights in re, and may even amount to a title in fee to an estate. But the section is broad enough to cover powers in trust. In principle it is cumulative, as every conveyance must be recorded to be good as against persons without notice,76 and every will, in order to become fully effective, probated, and a power can be created in these instruments only." What applies to the entire instrument must apply to a part of it.

When an instrument containing a power is recorded, the record operates only according to the legal effect of the limitation. It can

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

74 Repealed, chap. 547, Laws of

75 Infra, art. 9, Real Prop. Law. 76 Infra, § 291, Real Prop. Law. 77 Supra, § 140, Real Prop. Law.

not revive an extinguished power.78 Actual notice of the power dispenses with the necessity of the record as to the person having notice.

Effect of Recording on Extinguished Power. This section has no application to a case where a power is extinguished by consent of the parties in interest. In Prentice v. Jansen a will directed certain real estate to be converted into money and the proceeds distributed. The parties beneficially interested in the execution of the power elected to take the land, which extinguished the power. It was held in substance that this section had no application to such a case, as the mere act of recording the instrument in which a power was granted could not revive an extinguished power.

79

78 Prentice v. Jansen, 79 N. Y. 478, 79 Prentice v. Jansen, 79 N. Y. 478.

486.

§ 148. When power is irrevocable. A power, whether beneficial or in trust, is irrevocable, unless an authority to revoke it is granted or reserved in the instrument creating the power.

Formerly section 128, Real Property Law of 1896, chapter XLVI, General Laws:

§ 128. When power is irrevocable.- A power, whether beneficial or in trust, is irrevocable, unless an authority to revoke it is granted or reserved in the instrument creating the power.80

Section 128 was formerly 1 Revised Statutes, 735, section 1c8:

$1C8. Eve y power, beneficial or in trust, is irrevocable, unless an authority to revoke it, is granted or reserved in the instrument creating the power.S1

Comment on Section. This section relates to the construction of original limitations of powers. It establishes a uniform rule. In so far as deeds creating powers were concerned, before the Revised. Statutes, some grants of powers were in their nature revocable; others not.82 Chancellor Kent states that the Revised Statutes 83 gave due stability to the rules of construction by declaring grants of powers irrevocable, unless an authority to revoke them be expressly granted or reserved.84

85

Powers of Attorney. But this rule has no relation to common-law powers of attorney, which remain in their nature revocable, unless coupled with an interest.86

Powers in the Nature of Uses. Powers in the nature of uses, operating under this statute, if created by deed, are no longer revocable, unless an authority to revoke them be contained in the deed.87 It is otherwise as to powers created by wills which are revocable, for it is the nature of a will to be ambulatory until the death of the testator or until revoked by a subsequent will.88

90

This Section does not Apply, when. The rule stated in this section does not apply in the construction of deeds in execution of a power.89 Prior to the Revised Statutes, a deed in execution of a power of revocation and new appointment, must contain a similar power of revocation, or it was executed once and for all, and was irrevocable, notwithstanding a power to revoke might ordinarily be executed toties quoties, if it was so reserved in the deed of execution.91 This still must be the rule. So, where a power is to be executed by will, and is so executed, it may be revoked by a subsequent will or codicil, without any reservation, and as before the Revised Statutes.92

Covenant not to Execute Power of Revocation. A present power of revocation might by the common law be released,93 and no doubt in equity a covenant not to exercise such a power or a power of appointment may in certain cases be still good. Certainly before the Revised Statutes "covenants not to exercise powers in particular events or without the consent of others were not infrequent, and probably such a covenant operated, at least in some cases, as a legal defeasance or restraint of the power."

80 The section, in terms, refers to instruments creating powers, not to those executing them.

90 Farw. Pow. 271; 1 Sugd. Pow. 462.

91 Farw. Pow. 269; 1 Sugd. Pow. 462.

92 Austin v. Oakes, 117 N. Y. 577,

" 94