Page images

Gross not

that the power was extinguished, by the conveyance to Briscoe.

13. With respect to those powers relating to land, Powers in which are called


in gross ; as the estates to be barred by a created by them do not fall within the compass of the Conveyance

of the Land. 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,

1 Cha, Ca. 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.

14. A man settled lands by fine, to the use of Edwards v. himself for life, with a clause, that if he should make Slater,

Hard. R. a jointure to his wife, and make a lease for 31 years, 410. to commence after his death, for raising 3,0001. 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 3,000). 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.

Lord Hale.and Baron Rainsford were of opinion, that the power to make a lease for 31 years, to com-, mence 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 seising 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


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

Pinne v.
Forrest, 41.

n. 1.

342 b.

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.

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.

1 Inst. 265 b. 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. case, that if a feoffinent in fee be made to A. to divers Moo. 605.

uses, with a proviso, that if B. shall revoke, the uses shall cease: there B. cannot release his power; and a feoffment by him shall not extinguish it; for the power of B. is merely collateral, and the land doth not

move from him, nor shall the party be in by him, Vide Tit. nor under him; and neither a fine nor a recovery will 35 & 36.

in this case operate as a bar to the power. · A Power may

22. A power of revocation may, in some cases, be. be forfeited to the Crown. forfeited to the Crown, by an attainder for high

treason, and by that means become vested in the King. Thus, if a person is tenant for life, with a power of revocation over the estates in remainder, and he is attainted of high treason, his estate for life,

and his power of revocation, will both be forfeited. In what Cases

23. In a case of this kind, if the execution of the it may be exeouted. power of revocation be attended with circumstances

inseparably annexed to the person of him to whom the power is given, it cannot be executed by the

Crown. Duke of

24. Thomas Duke of Norfolk conveyed his estate Norfolk's Case, cited to trustees, to the use of himself for life, remainder 7 Rep. 13 a. to the use of his eldest son in tail, with several re

mainders over, with a proviso, that it should be lawful for the duke to revoke those uses, by any writing under his proper hand, subscribed by three witnesses. The duke was afterwards attainted of high treason ; and it was determined that this power of revocation,

although forfeited, could not be executed by Queen Smith v. Elizabeth ; because the circumstances prescribed in Wheeler,

the execution of the power were so inseparably ani Vent. 128.

nexed to the person of the duke, that no one but himself could execute them.

25. But if the execution of a power of revocation be not attended with circumstances inseparably annexed to the person of him to whom the power is given; there, in case of an attainder for high treason, the power may be executed by the Crown.

2. Sir Francis Englefield left the kingdom in the Englefield's first year of Queen Elizabeth by licence, and re- 7 Rep. 11. mained abroad beyond the time of his licence. The Queen, by her warrant under the privy seal, required him to return, and upon his not complying, seised his lands. Sir Francis Englefield, by indenture executed at Rome, and made between him and Francis Englefield his nephew, covenanted for the advancement of his blood, &c. to stand seised to the use of himself for life, remainder to the use of his said néphew and the heirs male of his body, remainder to the use of the right heirs of his nephew; with a proviso, that as his nephew was an infant, so that his proof was not then seen, and because the uncle did not think it convenient to settle the said inheritance in the nephew absolutely, so long as the uncle should live, therefore if the uncle, by himself, or by any other, should, during his natural life, deliver or offer to the nephew, a gold ring, to the intent to make void the uses, then all the uses should be void.

Sir Francis Englefield was afterwards indicted for high treason, for compassing the Queen's death, on which he was outlawed. And in 28 Eliz, an act of attainder for high treason was passed against him. Queen Elizabeth, by letters patent, reciting the settlement, and power of revocation, on tender of a gold ring, 'appointed two persons to deliver a gold ring to Francis Englefield, which he refused. The question was, whether this tender of a gold ring to Francis Englefield, was a good revocation of the uses.

It was argued, that the execution of this power was not given to the Queen by the act of attainder, because it was inseparably annexed to the person of Vol. IV.


« PreviousContinue »