wherefore, it is firmly settled, that no estate capable of being considered as a remainder (according to the rules by which remainders are limited) shall ever be construed as a shifting or springing use (h). 4. The grantor, in a common law conveyance, cannot reserve to himself, nor confer on any other person, the power of revoking or altering the grant, by any future act or instrument: for that is deemed repugnant to the conveyance itself (i). The utmost that the common law allows, is a deed of defeasance (coeval with the grant, and therefore esteemed a part of it) upon events specifically mentioned (k). But the limitation of a use, subject to a power of this description, was not considered as involving any repugnancy; for a use was a mere direction to the trustee, how he was to deal with the legal estate: which might well be recalled or changed (1). Therefore, in a conveyance under the statute, a proviso giving to the grantor, or grantee, or a stranger, authority to revoke or alter, by a subsequent act, the estate first granted, will be valid; for it is in effect no more than an authority to revoke the use first limited, or to declare a new one (m). Such provisoes are called powers (n); a term properly applicable, as we have seen (0), to all authorities, as distinguished from estates: and they are either mere powers of revocation (p), enabling the grantor simply to recall what he has bestowed; or powers of revocation and new appointment (q), authorizing the grantor, or some other person, to alter or make a new disposition of the estate conveyed. The first, will of course hardly find a place except in grants of a gratuitous came from equity into the common "law with the Statute of Uses."(1 Burr. 120.) (0) Vide sup. p. 234. (p) A power of appointment implies power of revocation, but not è converso. (4 Cruise, Dig. 232.) (q) 1 Sand. Us. 155; 4 Cruise, Dig. 228. nature, (or voluntary conveyances as they are called,) though in these they are naturally to be expected (r); mankind, according to the remark of Lord Bacon, having always affected to have the disposition of their property revocable in their own time, and irrevocable ever afterwards (s). But with respect to powers of revocation and new appointment, they are of frequent occurrence in the more common case of conveyances founded on consideration, and particularly in family settlements; their object not being to indulge the caprice of any party, but to carry into effect with greater convenience the arrangements actually contemplated. Thus, if a life estate be limited to the settlor, with remainder over, it is common to insert a power enabling him from time to time to make effectual leases of the property in possession, for terms not exceeding twenty-one years; a privilege reasonable and convenient in itself, but such as is not incident to the estate of a tenant for life generally (t). Of the same nature, in general, are the usual powers of jointuring, selling, charging land with the payment of sums of money, and the like (u); and all these are technically described as powers of revocation and new appointment,—because, in authorizing a new disposition not made by the conveyance itself, they operate pro tanto as a revocation of those which it contains (x). Such a power, if closely considered, will be found to amount to an authority to create a use, to take effect in derogation, to a certain extent, of the uses first limited; or (r) 2 Font. 155, n. (q). (s) 2 Bl. Com. 335. (t) It is to be remembered here, that by a recent Act (19 & 20 Vict. c. 120) such leases may now be made by a tenant for life under a settlement even without a power to that effect in the settlement; provided it contains no express declaration to the contrary, and subject to such exceptions and provisions as are contained in that statute; (vide sup. p. 263.) (u) 2 Sand. Us. 81. (x) 1 Sand. Us. 155; 4 Cruise, Dig. 228. The term power of revocation and new appointment is not, however, usually applied to a mere power of leasing, jointuring, or the like; but to powers of a different nature, as where a man conveys his estate to trustees to certain uses, with proviso that it shall be lawful for him at any future time to revoke these uses and declare new ones, &c.; ibid; and see 1 Cruise, Dig. 438; Doe v. Martin, 4 T. R. 39. rather to the virtual limitation of an executory use of that description, in favour of such person, and for such estate, as shall be defined by the subsequent act of the donee of the power (y). This subsequent act or exercise of the power is called an appointment (2); and its effect (when it correctly pursues the authority) is to raise, in favour of the appointee, a use corresponding to the estate appointed (a); which being served out of the original seisin, is immediately executed by the statute, and transmuted into equivalent legal estate (b). An appointment is not considered as an independent conveyance (c). It is merely ancillary to the former deed; which (as already observed) contains, in effect, a prospective limitation of the new usc. The appointee, therefore, is considered, for most purposes, as deriving his title under the original conveyance (d); and (y) Sugd. Gilb. 152, 153 (n.); 2 Sand. Us. 81. 66 (z) 2 Sand. Us. 31. "In what ever mode the power is exercised, "whether by grant, bargain and sale, "will, &c., the instrument in every "case operates strictly as an appoint"ment or declaration of the use; "and therefore, in consequence of "the rule before noticed, that there "cannot be a use upon a use, the "bargainee, &c. takes the legal es"tate, the appointment being made "to him; and if any ulterior use is "declared, it operates merely as a "trust in equity."-2 Sugd. Powers, p. 14 (ed. 1836); et vide ibid. vol. i. p. 240. (a) As to the manner of executing a power to appoint by will, see 7 Will. 4 & 1 Vict. c. 26, ss. 27, 10; as to illusory appointments, see 11 Geo. 4 & 1 Will. 4, c. 46; see also 12 & 13 Vict. c 26, (suspended by 12 & 13 Vict. c. 110, and repealed in part by 13 & 14 Vict. c. 17,) and 22 & 23 Vict. c. 35, s. 12, giving relief against the defective execution of powers. By the provision last mentioned, any deed thereafter executed in the presence of, and attested by two or more witnesses, in the manner in which deeds are ordinarily executed and attested, shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by deed, or by any instrument in writing not testamentary, notwithstanding it shall have been expressly required that a deed or instrument in writing, made in exercise of such powers, should be executed or attested with some additional or other form of execution, attestation or solemnity. (b) 2 Sand. Us. 82; 4 Cruise, Dig. 228. (c) 2 Sand. Us. 84. (d) 4 Cruise, Dig. 282, 497; Bringloe v. Goodson, 4 Bing. N. C. 734; see also Sugd. Powers, vol. ii. p. 25, edit. 1836. to be in the same position as if that instrument had actually contained a limitation in his favour, to the extent of the estate appointed. Not only as to the limitation of estates, but in other particulars, there were important differences between conveyances to uses, and those that take effect at common law. For most purposes (as we have seen) an actual possession is deemed to be given, by the former conveyances, equivalent to that which would have been obtained if the alienee (supposing the interest conferred to be freehold) had received livery of seisin, or (supposing it leasehold) had made actual entry (e). But as a bargain and sale, a covenant to stand seised, and a lease and release, convey the actual possession by construction of law only, so they differed from a feoffment, in such incidents as result from its real delivery in point of fact. Therefore, though a feoffment, when made by the tenant in actual possession, would convey a wrongful estate of freehold (supposing his title insufficient to give a rightful one), and, when made by a particular tenant for a greater estate than he can lawfully convey, would occasion a forfeiture (or, in the case of tenant in tail, a discontinuance) of the particular estate, and the contingent remainders dependent on that estate were consequently liable to be defeated (ƒ),—no such results would follow from any conveyance by way of covenant to stand seised, bargain and sale, or lease and release (g). For by the feoffment, there was an actual investiture of the possession, as for an estate of freehold; which, as it was held, must take effect either de jure or de facto; but the other conveyances could, in their nature, pass no more than the grantor might lawfully transfer (h). For this reason they received, by way of distinction from a feoffment, (and others now abolished of the like nature,) the (e) 2 Sand. Us. 52. (h) Fearne, by Butler, 322, 9th ed.; Smith v. Clyfford, 1 T. R. 744. appellation of innocent conveyances (i). But the statute 8 & 9 Vict. c. 106, s. 4, having (as we have seen) provided, that a feoffment made after the 1st October, 1845, shall not have any tortious operation, the whole learning on the subject to which we have here referred, (so far as regards future conveyances,) has, by the effect of this provision, been swept away. The reader who reflects attentively on the nature of a conveyance under the Statute of Uses, as we have attempted to explain it in the present chapter, will not fail to be impressed with the importance of the changes which this act of parliament incidentally occasioned. It has been said to have had little other effect than to make a slight alteration in the formal words of a conveyance (k),—a remark alluding to the practice it has introduced of limiting one use upon another, when the intention is to give a trust estate. So far indeed as the creation of that species of interest is concerned, such, and such only, was its result, but the remark puts altogether out of sight its operations in regard to the legal estate. We have seen that it enabled the owner to dispose of this, in methods obviously more suitable to the exigencies of social life than the conveyances formerly employed, and exempt from the harsh and inconvenient effects with which these were sometimes attended; and (what is still of greater consequence) that it materially enlarged the power of alienation itself, by affording him the means of subjecting his property to a variety of arrangements of which it was before incapable. In thus affording escape, however, from the rigours of (i) Fearne, ubi sup. ; in Smith v. Clyfford, 1 T. R. 744, they are termed lawful conveyances. The same property of passing no estate beyond what the grantor may properly transfer belongs also to a grant at common law. (Co. Litt. 332 a; 2 Sand. Us. 49.) (k) 2 Bl. Com. 336. The learned Commentator, however, notices immediately afterwards, p. 337, its having introduced new species of conveyances. |