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 c. 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 • Perkins v. Walker, 1 Vern. Wall v. Thurborne, 1 See Adums v. Adams, Cowp. 651. c Bishop of Oxon v. Leighton, 2 Vern. 376; and see Lavender v. Blackstone, 3 Keb. 526, pl. 11. the estate for life only, and that then another shall have that estate, and that the remainder shall continue as at first limited, this is a good power. A power of appointment, if it be a power relating to the land, includes in it a power to appoint absolutely and outright, or with a power to be reserved in such appointment, to revoke the appointment when made, and appoint new uses; if therefore the donee would wish to be at liberty to revoke the uses appointed, it will be necessary that he should reserve such power, and so toties quoties; for otherwise the first power will be exhausted, and no further use can be made. But it is to be observed, that when the power of appointment does not relate to, but is collateral only to the land, the person to whom such collateral power is given, cannot, in an appointment made in pursuance of his power, reserve a power to revoke the uses by his appointment'; for in such case the power is but an authority, and, when executed, is gone. And it is observable, that wherever there is a power of revocation, the law gives the revoker a power to limit new uses, although no power of new limitation be expressed in the deed; for, he that has power to revoke, has also power to limit. And such new uses upon a revocation may be limited or raised by the same conveyance which revokes the ancient uses, as well as by a new conveyance; for the ancient uses ceasing ipso facto by the revocation, without. claim or other act, the law will adjudge priority in the operation of one and the same deed, although it be sealed and delivered at one and the same instant: and, therefore, such deed will, in construction of law, be first a revocation Thomson v. Freston, 2 Rol. Abr. 262, pl. 1. • Hill v. Bond, 1 Eq. Ca. Abr. 342; Prec. Ch. 474; Adams v. Adams, Cowp. 651. Wall v. Thurborne, 1 Vern. 355. & Per Finch, Lord Keeper, 1 Ch. Ca. 242; Colston v. Gardner, 2 Ch. Ca. 46, S.L. Lady Hastings's case, cited 3 Keb. 7, Ca. 7; but see also post, 400, and 1 Stra. 584. REVOCA TIONS. REVOCA- and cesser of the ancient uses, and then a limitation or raising of the new uses". And the rule of law will be the same, as to the ceasing of the estate, although the uses be raised by a recovery, and not, as in the case last cited, by a covenant to stand seised. Thus the court held, in Fitzwilliam's case, that it was all one where he who made the revocation was seised or possessed of the land; for the best construction of the statute of 27 Henry 8, of uses, was to make them subject to the rules of the common law, according to which, if two acts were done by one and the same means, and took place in one and the same instant, the law would so construe it, that that act should be taken in law to precede, which would give efficacy to to the entire instrument. Nor will the manner of wording a power, so as to distinguish the revocation and ceasing of the former uses, from the limiting the new uses, and mark them as separate acts, make any alteration in the legal construction thereof. For, per cur. in the same case, the ancient uses may, notwithstanding, be revoked, and the new uses well declared in the same deed; because, first, in judgment of law, there are but two times concurrent in one instant, namely, the time of the ceasing of the former uses, and the time of the declaration of the new; for, although the revocation and the ceasing of the former uses be distinguished in words, yet, in truth, they are one; for, the use which is revoked ceases, and the use which ceases is revoked: secondly, although no use ceases until the writing of revocation be sealed and published, and, after the sealing and publication, nothing can be added to it, yet it may well stand with the words of the proviso and the intention of the parties, that the new declaration may be in the same deed; for both being contained in one and the same writing, its operation will be, first, to make a destruction of the former, and then, eo instanti, a creation Digges's case, 6 Resol. 1 Rep. 174; S. C. Moor, 603. i Fitzwilliam's case, 6 Rep. 33, b. Ibid. 6 Co. 32. may be con of the new uses; and although these clauses And, where a power of revocation is reserved, the estates, created by the deed in which such power is contained, may be defeated not only by an express revocation, but by a revocation in law; as, where the donee of the power does an act of a nature that is irreconcileable with the existence of the former uses; quia non refert an quis intentionem suam declaret verbis, an rebus ipsis, vel factis; as when a man having power to revoke, limits new and other uses; in this case, the limitation of any latter uses which are inconsistent with the former ones, will be construed a revocation of the first uses, although the deed creating the power be not recited or referred to1(1). For although there be not. any express signification of the purpose or determination to determine the former uses, yet when a person limits new and other uses, he thereby necessarily signifies his purpose to determine and alter the uses before limited. And although the uses be limited, in the deed creating them, to be revoked by express words, in totidem verbis, 1 Scroop's case, 10 Co. W. Jones, 392; S. C. cited 143, b; S. C. 2 Rol. Abr. 1 P. Wms. 162. 263; Snape v. Turton, Sir (1) Constructive revocations seem, however, not to have been allowed of at law, until some time after the statute of uses, for Scroop's case was founded only on one authority, namely, the case of Frampton v. Frampton, cited in that case, to have been determined Trin. 2 Jac. but of which case I have not met with any report. See Scroop's case, 10 Rep. 144; S. C. 2 Rol. Abr. 263; 10 Ja. 1. REVOCA- REVOCA- yet any act irreconcileable with those uses, will operate in law as a revocation". Therefore, where D. conveyed land to trustees to certain uses, with power for D. at any time thereafter, by any writing subscribed and sealed by him in the presence of two or more credible witnesses, "in express words," to revoke or make void the estate or use thereby limited; and that then, and from thenceforth, the use and estate thus limited should cease. D. by his will, sealed and delivered in the presence of two witnesses, gave and devised the lands for different estates than those limited, but without expressly revoking the former uses; yet it was held to be a revocation, for that, when two acts could not consist together, the latter must be a revocation of the former. But, with respect to express revocations, there is the same necessity in executing a power of revocation, for attending to the circumstances required by the power, as to the form of the instrument, subscription of witness, &c. as we have before seen there is in executing a power of appointment. For, per Holt, "when a man has restrained himself by a particular power, he has no right to dispose of his estate but by exactly pursuing that power, nor will equity enlarge his right. For there was the greatest reason, in this case, that a man should be obliged by the rule of law in a court of equity, because it was a law that he had put upon himself: and that was the equity of the legal obligation, namely, because it was supposed to be made by his own express or implied consent. If a man voluntarily made a settlement to the use of himself for life, and after to other uses, and reserved no power of revocation, he could not revoke this, no, not in equity; and the reason was the same as to a power reserved; for he had no other right to do it but by virtue of the power; m Guy v. Dormer, Sir T. Raym. 295; but note, this point happened not to be material, as the event of this case would have been the same, whether the revocation had been good or not. |