operate without transmutation of possession; as a bargain and sale, covenant to stand seised, and lease and release. For whoever has any estate in the land, may convey it to another; and it would be unjust that he should afterwards be admitted to avoid, or do any thing in derogation of his own act. Any assurance therefore of this nature, which carries the whole of the grantor's estate, operates as a total destruction of the powers appendant to it. 8. It should however be observed, that a feoffment, 1 Inst. 237 a. Hob. 313. or other conveyance of part of the land, is an extinguishment of the power, as to that part only; and the power remains, as to the residue. 9. Where a person having a power appendant, makes a feoffiment or other conveyance, only for the purpose of creating a particular estate, as an estate for life, or a term for years; this only suspends the execution of the power, during the continuance of the estate created. And where such assurance only creates a charge on the estate, it necessarily subjects the estate to that charge. May be sus pended or charged. Thorne, 10. Where a person who had a power to revoke a Bullock v. use, made a lease for years, and levied a fine for Moo. 616. assurance of the lease, without express use; the power of revocation was held not to be extinguished by the fine, but only suspended during the term. A Power to lease not barred by a 11. In some cases a power of leasing, reserved to a tenant for life, will not be extinguished or suspended by his conveyance of the estate; where such convey. Charge. ance is made only to create a particular charge, and does not amount to a departing with the whole estate. 12. Lord Onslow being tenant for life, under his Ren v. Bulkeley, marriage settlement, with power to make leases, conDoug. 292. veyed his life estate by lease and release to one Briscoe and his heirs, in trust to apply the profits in payment of an annuity of 1507. during the life of Lord Onslow, and to pay the surplus to Lord Onslow himself. In the year following Lord Onslow conveyed all his estate to trustees for 99 years, if he should so long live, for payment of his debts; but with an express reservation as to all leases granted, or to be granted. Lord Onslow afterwards made a lease of the premises in question for 21 years, pursuant to his power; and the question was, whether the conveyance to Briscoe had destroyed the power of leasing. Lord Mansfield said, powers came into the courts of common law with the statute of uses; and the construction of them, by the express direction of the statute, must be the same as in courts of equity. The creation, execution, and destruction of them depended on the substantial intention and purpose of the parties. It was said, first, that the grantor, in this case, was not in possession, and that it was necessary he should be, to execute the power: but he thought possession here meant the receipt of the rents and profits, which were applied to his use. If actual possession were necessary, a leasing power could never be executed where land was in the hands of a tenant. Secondly, it was contended, that by granting away his life estate, he extinguished his power. Certainly where the whole life estate was granted away, by the intention of the parties, the power must be at an end and could not afterwards be exercised, to the prejudice of the grantee: but the conveyance here was only to let in a particular charge, subject to which the rents and profits still belonged to Lord Onslow, and the lease could not prejudice the security, nor the remainder-man, for the best rent must be reserved. It would therefore be contrary to the intention of all parties, to hold that the power was extinguished, by the conveyance to Briscoe. Gross not of the Land. 13. With respect to those powers relating to land, Powers in which are called powers in gross; as the estates to be barred by a created by them do not fall within the compass of the Conveyance estate of the person to whom they are given, a mere Gilb. Uses, alteration of that estate will not affect them: hence if 142, 3. a tenant for life, with power to settle a jointure, or to create a term for years, to commence from his decease, conveys away his life estate by bargain and sale, covenant to stand seised, or lease and release, Jenkins v. these conveyances will not destroy his powers; and if Keymis, he should even make a conveyance in fee, by any of 103. these assurances, as they pass no greater estate than the grantor has a right to convey, the power would not be affected by them. 1 Cha, Ca. Slater, 14. A man settled lands by fine, to the use of Edwards v. himself for life, with a clause, that if he should make a jointure to his wife, and make a lease for 31 years, 410. to commence after his death, for raising 3,000l. for his daughters portions, that then the cognizees should. stand seised to those uses; and limited several remainders over in tail, the reversion in fee to himself. Afterwards he made a jointure pursuant to this power, and then bargained and sold the lands to other persons in fee, by deed enrolled, in trust to raise portions. The bargainee afterwards conveyed the lands to him by feoffment. Then he made a lease for 31 years, to begin after his death, for raising 3,000l. for the portions of two of his daughters only; and he and his wife after that levied a fine, sur cognizance de droit, &c.; and afterwards he died. A person, by the direction of the lessee for 31 years, entered; and whether his entry were lawful or not, was the question. Unless the Estates are devested. Pinne v. Lord Hale and Baron Rainsford were of opinion, that the power to make a lease for 31 years, to commence after the death of the lessor, was not destroyed by the bargain and sale (contrary to the opinion of Baron Turner), because it was a power in gross, and the estate for life had no concern in it: and yet such a power might, by apt words, be destroyed by release, or by fine or feoffment, which carried away and included all things relating to the land. But an assignment of totum statum suum, or other alteration of the estate for life, did not affect such a power. 15. Where a tenant for life, with a power to jointure, or to create any other estate, to commence after his own, conveys away his estate, by feoffment, to a stranger and his heirs; as this species of assurance not only transfers the estate which the feoffor might. lawfully pass, but also a tortious fee, it follows that the whole inheritance is devested; and the seisin, out of which the uses created by the power were to be fed, is destroyed; by which means the power becomes extinct. And if the tenant for life levies a fine, or suffers a common recovery of the lands, the power will also be destroyed; for reasons which will be stated under those titles. 16. If the whole fee is in the terretenant, subject to the power; as where an estate is limited to A. for life, remainder to such uses as he shall appoint, remainder to A. in fee; there, if A. conveys the whole estate by lease and release to a stranger in fee, his power of appointment is destroyed; notwithstanding it is in the nature of a power in gross. 17. Where a tenant for life, with powers of leasing, jointuring, and charging, is obliged to part with the beneficial interest in the estate, he conveys it to n. 1. a person for 99 years, if he shall so long live; by which means the freehold remains still in him, and his powers are not destroyed. And where he joins with 1 Inst. 203 b. the remainder-man in suffering a common recovery; the conveyance to make a tenant to the præcipe is usually during the joint lives of the tenant for life, and the intended tenant to the præcipe; by which means the reversion remains in the tenant for life, and all his powers are thereby preserved. Powers not 1 Inst. 265 b. 342 b. 18. At common law a naked authority is not barred Collateral by a release or any other conveyance of the land. barred by any Thus, Lord Coke says, if a man by his will devised Conveyance. that his executors should sell his lands, and died; if his executors released all their right and title to the land to the heir, this was void; for that they had neither right nor title to the land, but only a bare authority. 19. Upon the introduction of uses, this doctrine Idem. was adhered to; and it was held in 15 Hen. VII., 1 Rep. 111 a. where cestui que use devised that his feoffees should sell his land, and died; and afterwards the feoffees made a feoffment over; that the feoffees might sell against their own feoffment; because the power to sell was merely collateral to the right of the land. 20. When powers of revocation and appointment were introduced, the Judges, reasoning by analogy from the preceding cases, laid it down, that powers collateral to the land could not be released, nor were they extinguished or destroyed by a feoffment, or any other conveyance of the land: for these powers being given to strangers, for the benefit of some third person, the extinction of them would be injurious to that person. 21. Thus it said by Popham, Ch. Just. in Digges's 1 Rep. 174 a. Moo. 605. case, that if a feoffment in fee be made to A. to divers |