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supplied. The law of the Court was also admitted, that if a power was executed in due form, but in

favour of a volunteer, the Court would take the George v. subject from that person, and give it to the creditors Milbanke, 9 Ves. 190.

of him who had the power. But where there was a complete want of execution, it could not be sup

plied for creditors. The decree was affirmed. Coke's Case, 31. Where a person has a power of revocation, by Godb. 289. Jenk. Cent.7. the exercise of which he may acquire an estate in fee Ca. 19.

simple, the land will be liable to debts due to the Crown.

TITLE XXXII.

DEED.

CHAP. XVIII.

How Powers may be extinguished and destroyed.

1. A complete Execution.

13. Powers in Gross not barred 3. Powers relating to the Land by a Conveyance of the

Land. may be released.

15. Unless the Estates are de5. Powers appendant barred by

vested. a Feoffment.

18. Collateral Powers not barred 6. By a Fine or Recovery.

by any Conveyance. 7. And by a Bargain and Sale, 22. A Power may be forfeited to

the Crown. &c.

23. In what cases it may be exe. 9. May be surrendered

cuted. merged.

28. A Power may be merged. 11. A Power to lease not barred 30. Where there is no Object of a by a Charge.

Power, it becomes void.

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SECTION 1.

TH
THE first and most obvious mode by which A complete

Execution. powers, whether relating to the land, or collateral to it, may be extinguished, is by a complete execution of them. And it was formerly held, that even a partial execution of a power operated as an Zouch .

Woolston, extinguishment of it; but this doctrine is not now ante, c. 16. deemed to be law.

2. If a power reserved over a legal estate, is de- Barnad. R. fectively executed at first, it may be executed over again, and the last execution shall stand ; the first being a mere nullity.

§ 39.

111.

or in

Land released.

may be

power relates :

Powers re

3. Powers relating to the land, whether appendant, lating to the

gross, may be destroyed by a release to any

person having an estate in possession, remainder, or 1 Rep. 174 a.

reversion, in the lands to which the
for where powers are given to a person having an
estate or interest, either present or future, in the
land, the exercise of them is considered as a species
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. Albany's 4. Francis Bunny enfeoffed Miles Hitchcock, to Case, i Rep. 110 6. the use of the said Francis for life, and after to

the use of David Bunny in tail, &c., with a proviso that it should be lawful for the said Francis to alter, change, or determine any of the uses limited in the said deed. Afterwards Francis Bunny, by his deed, did remise, release and quit claim to the said Miles and David, the said condition, proviso, and agreement, and all his power, liberty, and authority aforesaid. It was resolved that the power was destroyed by this release.

5. Powers appendant may be barred by the feoffpendant barred by

ment of the persons to whom they are given; because Feoffment,

a feoffment with livery is of such force that it excludes

the feoffor, not only from all present, but also from ante, $ 4. all future rights and titles ; and in Albany's case it

was agreed by the Judges, that a power to revoke and limit new uses might be utterly gone and extinguished

by a feoffment. By Fine or 6. Powers appendant may also be barred and Recovery.

extinguished by fine, or common recovery; of which

an account will be given under those titles. And by Bar- 7. Powers appendant may also be extinguished by gain and Sale, &c.

any of those conveyances which derive their effect 1 Inst

. 342 6. from the statute of uses; and which are said to

Powers ap

ante, c. 4.

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, May be susmakes a feoffinent or other conveyance, only for the pendedor

charged. 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. 10. Where a person who had a power to revoke a Bullock v.

Thorne, 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.

11. In some cases a power of leasing, reserved to a A Power to tenant for life, will not be extinguished or suspended barred by a 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, con

Doug. 292. veyed his life estate by lease and release to one Briscoe and his heirs, in trust to apply the profits in

lease not

payment of an annuity of 150 l. 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

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