the exercise of such powers is confidered as a fpecies of property advantageous to him, and there is no reason why he should not be allowed to depart with, or exclude himself from the benefit of it.

§ 3. Powers relating to the land may also be barred or extinguished by fine or common recovery; of which an account will be given under titles Fine and Recovery.

§ 4. Powers relating to the land are alfo liable to be extinguished or fufpended by any of those conveyances, which derive their effect from the ftatute of ufes, and which are faid to operate without transmutation of poffeffion; as a bargain and fale, covenant to stand seised, and leafe and release; for whoever has any estate in the land, may convey that estate to another, and it would be unjust that he should afterwards be admitted to avoid, or to do any thing in derogation of his own act. Any affurance, therefore, of this nature, which carries with it the whole of the grantor's eftate, operates as a total deftruction of the powers appendant to that estate; and by parity of reason, any affurance that only transfers a particular estate, such as an estate for life, or a term for years, suspends the exercise of the power, during the continuance of that eftate, or at least the eftate to be raised by it and where fuch assurance only creates a charge upon the estate, it neceffarily fubjects the eftate, created by the power, to that charge.

$ 5. With

§ 5. With respect to those powers relating to the land, which are called powers in grofs, as the estates to be created by them, do not fall within the compafs of the estate, to which they are faid to relate, there does not seem to be any reafon why an alteration in that estate should affect them. Hence, if a tenant

for life, with power to fettle a jointure, conveys away Hard. R.416. his life eftate, by bargain and fale, covenant to ftand feifed, or leafe and release, these conveyances will not affect his power of appointing a jointure. If he fhould even make a conveyance in fee, by any of thefe affurances, as it is not their operation to pass a greater eftate than the grantor has a right to convey, the power in grofs will not be affected by them.

§ 6. But where a tenant for life, with a power to Idem. jointure, conveys away his eftate by feoffment, to a stranger and his heirs, as this fpecies of affurance not only transfers the estate which the feoffor might lawfully pafs, but also a tortious fee, it follows that the whole inheritance is devested, and the feifin out of which the uses created by the power were to be fed, is destroyed, by which means the power becomes

extinct.

§ 7. Where a tenant for life, with powers of leaf- 1 Inft, 203 b. ing, jointuring, and charging, joins with the remainder ".. man in fuffering a common recovery, the conveyance to make a tenant to the præcipe ought to be during the joint lives of the tenant for life, and the intended tenant to the præcipe; in order to preserve the powers

of

Powers to Leafe not barred by a Charge on the Land.

Ren v.
Bulkely,

292.

of the tenant for life, by leaving the reverfion in him.

§ 8. In fome cafes, a power of leasing reserved to a tenant for life, will not be extinguished or fufpended by his conveyance of the estate, where fuch conveyance is made only to create a particular charge, and does not amount to a departing with the whole estate.

§ 9. Lord Onflow being tenant for life, under his Doug. Rep. marriage fettlement, with a power to make leafes for twenty-one years, referving the best rent, conveyed all his life eftate by leafe and release, to one Briscoe and his heirs, in truft to apply the profits in payment of an annuity of 150l. during the life of Lord Onflow, and the furplus to Lord Onflow himself.

In the year following Lord Onflow conveyed all his eftate to trustees for ninety-nine years, if he should fo long live, for payment of his debts, but with an express reservation as to all leafes granted or to be granted.

Lord Onflow afterwards made a lease of the premises in question, for twenty-one years, pursuant to his power, and the question was, whether the conveyance to Briscoe destroyed the power of leafing.

Lord Mansfield:"Powers came into the courts " of common law with the ftatute of uses, and the "construction

"construction of them, by the exprefs direction of "the ftatute, must be the fame as in courts of equity.. "The creation, execution, and deftruction of them; "depend on the fubftantial intention and purpofe of "the parties. It is faid, firft, that the grantor in this "cafe was not in poffeffion, and that it was necessary "he fhould be to execute the power. But I think "poffeffion here means the receipt of the rents and "profits which were applied to his ufe. If actual "poffeffion were neceffary, a leafing power could "never be executed, where the land is in the hands "of a tenant. Secondly, it is contended that by "granting away his life eftate, he extinguished his power. Certainly where the whole life eftate is conveyed away by the intention of the parties, the '' power must be at an end, and cannot afterwards be "exercifed to the prejudice of the grantee. But the σε conveyance here was only to let in a particular

10

charge, fubject to which the rents and profits ftill "belonged to Lord Onflow, and the leafe could not "prejudice the fecurity, nor the remainder man, for "the best rent must be referved; it would therefore "be contrary to the intention of all parties, to hold "that the power was extinguished, by the conveyance "to Brifcoe."

§ 10. Powers collateral to the land cannot be released, nor are they extinguished or deftroyed by a feoffment, fine, or recovery; for thefe powers being given to ftrangers, they are intended for the benefit of

Powers col

lateral not barred by

Releate or

Conveyance.
1 inft. 265 b.

fome third perfon, and therefore the extinction of 342 b. n. 1.

them is supposed to be injurious to that perfon. And

VOL. IV.

Z

although

A Power may be merged.

Crofs v.
Hudfon,

3 Bro. R. 30.

although it is a general rule of law, that every perfon who is a party to a feoffment, fine, or recovery, is thereby estopped from claiming any estate or interest in the lands fo conveyed, yet if the donee of a collateral power, conveys the eftate, over which the power is given, by feoffinent, fine, or recovery, and afterwards executes his power of revocation, it will be good. For the perfon claiming the eftate under the revocation, is in immediately by, and makes his title directly from the original fettler: he is not therefore bound or eftopped by any act of the perfon to whom the power is given. Thus, by the old law, if ceftui que ufe devifed that his feoffees fhould fell his land, and died, and his feoffees made a feoffment over, yet it was held that the feoffees might fell against their own feoffment, because the power to fell was merely collateral to the right of the land, and the vendee took nothing by the feoffient.

§ 11. A power given to a perfon having a particular estate in the land, may be merged by his acquifition of the fee fimple.

12. Thus, where an eftate was limited to John Hay for life, remainder to his wife for life, remainder to the children of the marriage in tail, remainder to the furvivor of the hufband and wife in fee. With a power to the husband, by deed or will, to charge the lands with a rent. There was no iffue, and the hufband in the lifetime of his wife, by will, reciting the power, devised in execution of his power, and of all other powers, a rent of 100 l., and furvived his wife.