A

TREATISE

OF

POWER S.

CHAPTER I.

OF THE NATURE OF POWERS BEFORE AND SINCE THE STATUTE OF USES; AND OF THE SUSPENSION, EXTIN

GUISHMENT, AND MERGER OF POWERS,

THEIR EFFECT FROM THE STATUTE.

DERIVING

SECTION I.

POWERS

OWERS are either common law authorities; declarations or directions operating only on the conscience of the persons in whom the legal interest is vested; or declarations or directions deriving their effect from the statute of uses. A power given by a will to A to sell an estate, (I) and a power given by an act of parliament to sell estates; as in the instance of the land-tax redemption acts, are both common law authorities. The estate passes by force of the will, or act of parliament, and the person who executes the power, merely nomi nates the party to take the estate. A power of attor

(I) This is doubted where a seisin is raised to feed the devise. The doctrine cannot be considered, till the student is made acquainted with the nature of this seisin.

ney is also a common law authority; but the estate is not in this, as in the other cases, actually transferred by the instrument creating the power. It is a mere authority to execute a conveyance in the place of the principal; and the estate, therefore, must be conveyed by the attorney, with the same solemnities as would have been requisite upon a transfer executed by the principal himself. A power to dispose of an estate, or sum of money, of which the legal interest is vested in another, is a power of the second sort. The legal interest is not divested by the execution of the power, but equity will compel the person seised of it, to clothe the estate created with the legal right.

To understand correctly the nature of powers deriving their effect from the statute of uses, which it is the principal object of these sheets to elucidate, we must consider, 1st, The nature of trusts before the statute of uses; and, 2d, The effect of the statute.

The simplicity of the common law was admirably adapted to times when transfers of property were not frequent. It was essential to their validity, that corporal possession of the land should be delivered to the purchaser in the presence of his neighbours; thus, every one's title was publicly known, and secret and fraudulent transfers of property never could take place. This mode of transfer was termed a feoffment, with livery of seisin, a conveyance which is still frequently used. And the like strictness required, that estates thus notoriously transferred, should not be defeated by the mere execution of a deed; and, therefore, a power of revocation annexed to a feoffment, was void in its very creation. A condition, it is true, might at all times have been added to a feoffment; but the strict

rule

rule of the common law did not permit the breach of such condition to be taken advantage of by any but the feoffor or his heirs, and this principally with a view to prevent maintenance. These rules opposed an effectual barrier to such modifications of estates as prevail at this day. When to this rigour we add, that except in some few places, by force of a custom, lands could not be devised, we shall not be surprised that the wants of succeeding times should invent a mode to defeat the excessive rigour, and subvert the simplicity of the common law. This was effected by the introduction of uses. It is not within the plan of this work, to consider the precise time when, or by whom uses were introduced. The nature of them only requires our attention. An use, then, was a mere confidence in a person to whom an estate was conveyed, without consideration, to dispose of it as the person by whom it was conveyed should direct. The estate was regularly transferred to a friend, upon trusts designated at the time; or upon such trusts as should be afterwards appointed by the real owner. But still the person to whom the estate was conveyed, was, to all intents and purposes, owner of the estate at law. It is observed, in Chudleigh's case, that he who hath an use, hath not jus neque in re neque ad rem, but only a confidence and trust, for which he had no remedy by the common law and Serjeant Frowick, afterwards Chief Justice of the Common Pleas, remarked, in the reign of Henry the 7th, that by the course of the common law, cestui que use had no more to do with the land, than the meerest stranger in the world. To prevent, in some measure, the consequences of this doctrine, it became usual to have several joint feoffees; so that, on the death of any, the estate might survive to B 2 the

the others, and not be subject to the dower of the deceased's wife, &c. And it also became customary for the owner himself to be one of the feoffees; nor did any inconvenience result from this practice; the judges held, that although in such case the use was in part suspended, yet it might be disposed of in the same manner as if the entire legal estate was vested in others. This mode of conveyance became indeed so common, that in the statute of uses, to which our attention will presently be called, an express provision was inserted to meet this case

Equity, after some time, and by degrees, assumed the jurisdiction which it now exercises, in enforcing the performance of trusts and contracts, so that the person who had conveyed his estate, or cestui que use, as he was then termed, answers almost precisely to cestui que trust of the present day. When uses were once established, and not noticed by the courts of law who ac› knowledged the legal tenant only, the complication of modern settlements was soon introduced. Thus, POWERS arose; for although it was repugnant to a feoffiment at common law, that a power should be reserved to revoke it, yet there was no such repugnancy as to trusts, which were simple declarations, or directions to the person seised of the legal estate, in what manner, and to whom he should convey the estate. And, for the same reason, the owner might direct the trustee-to convey as a stranger should appoint, although a power of entry for a condition broken, could not be reserved to a stranger on a common law conveyance.

Equity, however, only lent its aid where there was a valuable or good consideration. The first arose upon a real contract, and was termed a bargain and sale. It

was,

was, in fact, originally a mere contract by A to sell his estate to B, although in process of time it became a mode of settlement, and equity did not enquire into the amount of the consideration; the second was also a mere contract or agreement, by a husband, parent, or kinsman, to settle his estate upon his wife, children, or relations. This was styled a covenant to stand seisedMoney, rent, or services incident to tenure, were sufficient to sustain the former: the consideration of marriage, and natural love and affection to a legitimate child, brother, nephew, or cousin, the latter. In order to comprehend the doctrines we shall hereafter have occasion to discuss, it will here be necessary to observe, that a consideration was only required where the inheritance remained in the contracting party. Now a covenant to stand seised, or a bargain and sale. did not transfer the possession to the covenantce or bargainee it was a mere contract, and was, therefore, termed a conveyance, not operating by transmutation of possession; the party with whom the contract was made was compelled to resort for relief to equity, and equity following the rule of the civil law, would not enforce a mere nudum pactum. But, where a conveyance did operate by transmutation of possession, as a fine, recovery, feoffment, or release, which vest the legal estate in the conusce, recoveror, feoffee, or releasee, and uses were declared on such a conveyance, there equity did not inquire into the consideration: the real owner having divested himself of the legal estate, it was not necessary to resort to equity, as against him; and the person in whom it was vested being a mere naked trustee, was bound in conscience to execute the directions of the donor. This is clearly

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