APPOINT- but restrained to be executed with the consent of third persons, shall not be within the equity of the statute o 27 Eliz. In the case of Buller v. Waterhouse, indeed, the point was considered, but does not seem to have been settled; because all the claimants under the conveyance were purchasers for a valuable consideration. The distinction, however, between the cases where powers of revocation restrained to be exercised with the consent of a third person are, or are not, within the meaning of the 27 Eliz. seems to be this: if the interposition of a third person in the execution of such a power be merely colourable, and to evade the statute, (which is a fact to be positively proved, or a conclusion from circumstances that necessarily import as much,) the statute will operate notwithstanding. As if A. reserve to himself a power of revocation with the assent of B; and, afterwards, A. bargain and sell the land to another, the bargain and sale is good, and within the remedy of the statute; for otherwise, says Lord Coke, the good provision of the act, by a small addition and evil invention, would be defeated. So it was held in the case of Lavender v. Blackstone, before mentioned, that although the lease (which there operated as a power of revocation) was restrained to be by the assent of a third person; yet, that person not being a creditor, but a relation and father-in-law, the interposition of his assent did not prevent the lease from being fraudulenth. But, if the intervention of third persons, in the execution of a power, be to preserve or protect the rights of others, as of a wife or children, and not merely to evade the words of the statute; in such case, the general doctrine laid down in the precedents seems to warrant a conclusion, that the power of revocation, though reserved to the owner, is considered as being qualified, and out of the equity of the statute; Keb. 526, pl. 11. because, although the revocation be reserved to him, yet it is so clogged, that he can make no use of it without the assent of others, who have an interest in resisting such revocation, unless upon sufficient consideration. And a conveyance, with power of revocation, on payment of a small sum by the revoker, will, it seems, be within the statute, and void against a purchaser for a valuable consideration. Thus it was said by the court in Griffin v. Stanhope', that if a lease be made with a proviso, that if the lessor pay 10 s. then the lease shall be void, such lease would be void under the statute as to a purchaser; because it was apparent that the sum to be paid was not of the value of the land, but only limited as a power of revocation. But a power to charge an estate settled with a particular sum by way of mortgage, or otherwise, has been held not to be within the words of this statute. Thus, where a power was given to the owner of an estate, settled on himself for life, remainder upon his son in tail special, to charge the estate with the payment of 2,000l. it was objected, that this settlement, being with a proviso to charge the lands with the payment of 2,000l. was void against a purchaser for valuable consideration, within the provision of stat. 27 Eliz. c. 4. "which made conveyances, with power to revoke, alter or determine, at the will and pleasure of the owner, void." But the court held, that such proviso to charge the estate with 2,000l. was not a power within the words of the statute; "to revoke, determine or alter the estate," being to charge a particular sum; and no express fraud being found, the conveyance could not be adjudged fraudulent*. It is to be observed, however, that none can take advantage of this clause in the statute of 27 Elizabeth, against conveyances with power of revocation, except he who is Cro. Jac. 454. VOL. IV. * Jenkins v. Keymis, 1 Lev 150; S. C. 1 Hard. 395, b. с с APPOINT MENTS. APPOINT- a purchaser for money or other valuable consideration; for, the benefit of the clause is expressly restrained to those who purchase for money or other good consideration, paid or given, which word paid is to be referred to money, and given is to be referred to good consideration; so that the sense is for money paid, or other good consideration, given, which words exclude all considerations of nature or blood, or the like, and are to be intended only of valuable considerations, which may be given; and therefore he only who makes a purchase of land for a valuable consideration, is a purchaser within the statute'. Therefore, where one made a lease for eighty years without consideration, and afterwards conveyed the land to his wife for a jointure after marriage; it was resolved by the two Chief Justices, and three other Justices, that because this last conveyance was voluntary, without valuable consideration, the wife could not avoid the former lease, by averring that it was fraudulent". And one who claims relief under this statute, must not only be a purchaser for a valuable consideration, but also must himself be free from all imputation of fraud or deceit: for, per Anderson, Chief Justice of the Common Pleas, where a man who was of small understanding, and not able to govern the lands which descended to him, and was given to riot and disorder, by mediation of his friends, openly conveyed his lands to them, on trust and in confidence that he should take the profits for his maintenance, and that he should not have power to waste and consume the same; and afterwards, he, being seduced by deceitful and covetous persons, bargained and sold his land, being of a great value, for a small sum of money; this bargain, although it was for money, was holden to be out of this statute; for this act was made against all fraud and deceit, I 3 Co. 82; Twyne's case, Cro. Eliz. 445; 2 Rol. Rep. 305,306. m Cited per Beamond, Justice, Cro. Eliz. 445. and doth not help any purchaser, who doth not come to the land for a good consideration lawfully, and without fraud or deceit. And such conveyance, made on trust, or with power of revocation, is void only as to him who purchases the land for a, valuable consideration bonâ fide without deceit or cunning". And it is observable upon the two preceding cases put by Beamond and Anderson, that the reasoning of them applies equally to the clause in the statute respecting conveyances with power of revocation, as to that respecting fraudulent conveyances; for the construction of the statute as to this point must be the same as to all clauses of it; and Owen said, in the case of Upton v. Basset, that he was at the making of this statute, and that special care was taken that there should not be any words which should extend to purchasers, unless it were such as paid money or other good consideration for their purchase. And notice of such conveyance with power of revocation will not prevent a purchaser for valuable consideration from setting the same aside under the statute; for the notice of a purchaser cannot make that good which the act of parliament has made void as to him; and though it be true that qui scit se decipi, non decipitur, yet, in this case, the purchaser is not deceived, for the conveyance with power of revocation of which he has notice, is void as to him by the statute, and therefore shall not hurt him, nor is he, as to that, in any manner deceived P. APPOINT MENTS. An appointment in exercise of the power will, more- Power exover, have the effect of annulling by exhausting the power; appointment. tinguished by but this may be either total or partial, according to the extent of the appointment. Where the execution totally exhausts the uses to be appointed, it is a total revocation or extinguishment of the power; but if the appointment APPOINT- be by way of mortgage only, it will be an extinguishment of the power pro tanto only; for in equity, a mortgage is considered as a pledge only of the estate, and the mortgagor still continues in possession'. TIONS. CHAP. VI. OF REVOCATIONS. REVOCA- THE last mode we shall notice by which an appointment may be rendered void is by REVOCATION. A power to appoint the uses of land, unless simply collateral', we have seen, includes in it a right to appoint absolutely, or with a power of revocation and new appointment, although no express power of revocation be reserved in the deed creating the power of appointment; and also that in the deed of appointment itself, a power may be reserved for the same purpose. Hence it becomes necessary to inquire into the form and circumstances requisite to attend a revocation of uses, as well as into those which are requisite to attend the original appointment of them. As to which, it is to be observed, that no express words seem to be necessary either to the creating of a power of revocation, or of effectuating the revocation itself; for, if the intention be clear, the court will construe the expressions, so as to support the intention". And such power to revoke may be given to the extent of the whole limitation of the estates subjected to it, or only as to a part of it; as if a man make a feoffment to the use of J. S. for life, with remainders over, with power to revoke |