same remedy is given in favor of purchasers claiming under a defective conveyance as from a like defective conveyance from actual owners. Courts of equity, before the statute, were in the habit of supplying defects in the execution of powers. (Butcher v. Butcher, 9 Ves. 394.) It is a well established branch of equity jurisprudence, and rests upon its jurisdiction, to relieve against mistakes. Such relief is not granted in favor of every one, nor for every species of mistake. A mistake in law affords no ground for relief. (Story's Eq. J. §§ 113, 180 et seq.) And there must be clear evidence of the existence of the mistake of fact. If the defect be in the omission of some condition which was merely nominal, and evincing no intention of actual benefit to any of the parties, provision is made in the statute, and no doubt equity would have relieved, independently of the statute, in favor of the proper parties. (Willard's Eq. Jur. 84.)

But equity cannot relieve against the consequences of failing to comply with the material directions of the party creating the power. Therefore when the power prescribes that a particular instrument, as a deed, is required, it cannot be executed by will; so a power which is expressly required to be executed by will, cannot be executed by any act which is to take effect in the lifetime of the grantee of the power. (Reid v. Shergold, 10 Ves. 370. Crabbe's Law of Real Property, p. 708, &c.)

The power to sell lands contained in a mortgage or other conveyance, intended to secure the payment of money, is deemed a part of the security and vests in the assignee of the mortgage, and may be executed by him, or by any person entitled to the money secured by it. (1 R. S. 738, § 133.) We have already seen that such a power is coupled with an interest, and survives the mortgage, and is irrevocable. (Bergen v. Bennet, supra. Knapp v. Alvord, 10 Paige, 205.)

With regard to the revocation of powers, we have seen that every power, beneficial or in trust, is irrevocable, unless an authority to revoke it is granted or reserved in the instrument creating the power. (1 R. S. 735, § 108.) The statute contains suitable guards against fraud, by treating the party who has received a power of revocation as absolute owner of the estate, so far as the rights of creditors and purchasers are concerned. (1 R. S. 733, § 86.)

It has been held that when a person takes by execution of a power, he takes under the authority, and under the grantor of the power, equally as if the power and the instrument executing it were incorporated in one deed. (Doolittle v. Lewis, 7 John. Ch. 45. Litt. 169. Co. Litt. 113 a. Cook v. Derchenfield, 2 Atk. 562, 567.) The rule is the same whether the power has reference to real or personal property. Powers may either be extinguished, released or suspended, according to the nature of the power, or the acts of the grantee. (Crabbe's Law of Real Property, 721.)

SECTION II.

Of Powers of Attorney to convey Lands.

The provisions of the article in the revised statutes on powers which we have been considering, do not extend to a simple power of attorney to convey lands in the name and for the benefit of the owner. (1 R. S. 738, § 134.) It was deemed sufficient to let that class of cases rest upon the common law.

A power of attorney is an instrument in writing under seal, by which the party executing it appoints another to be his attorney, and empowers such attorney to act for him, either generally in all matters or business, or especially to do some specified act or acts, in his name and behalf. (See the word in Burrill's Law. Dict.)

If it be intended that the attorney shall make a complete conveyance of real estate, or any interest therein, which by law is required to be by deed, the power of attorney must be executed by the principal under hand and seal. The instrument conferring the authority must be executed with the same solemnity as the instrument which the attorney is authorized to execute in the name of his principal. (Co. Litt. 52 a. Blood v. Goodrich, 9 Wend. 68.) An authority to execute a deed, must be itself a deed, or in other words an instrument under seal. (Lawrence v. Taylor, 5 Hill, 113.)

An agent may be orally empowered to contract to sell land, for the contract may be without seal. (Champlin v. Parish, 11 Paige, 405. McWhorter v. McMahan, 10 Paige 386. Lawrence v. Taylor, supra.)

As a general rule it may be said that any party having the complete ownership of an estate, has the jus disponendi, and unless laboring under some legal disability, may convey the same in person by deed, or authorize another by power of attorney under seal, to

convey it for him. Married women, infants, lunatics and other persons not sui juris, are not in general capable of appointing an attorney. (Per Bronson, Snyder v. Sponable, 1 Hill, 567.)

If a party can himself execute a deed of an estate, it would seem on principle that he might authorize another to do it. As a feme covert under the act of 1849 (L. of 1849, p. 528) can hold to her sole and separate use real and personal property, and can convey and devise the same "in the same manner and with the like effect as if she were unmarried," and as her deed thereof does not require to be acknowledged private and apart from her husband, (Blood v. Humphrey, 17 Barb. 660,) no reason is perceived why she may not execute a power of attorney under seal and empower such attorney to convey the same in her name. The statute in effect removes the disability of coverture with respect to the disposal of her separate property, without prescribing any restriction as to the mode.

The acts of 1848 and 1849, probably relate to married women, inhabitants of this state. The act of 1835, chapter 275, makes a separate provision with respect to non-residents. It provides that when such married woman shall unite with her husband in executing any power of attorney for the conveyance of real estate situated in this state, the conveyance executed in virtue of such power shall have the same force and effect as if executed by such married woman, in her own proper person; provided that the execution of such power of attorney by such married woman shall first have been proved or acknowledged, according to the provisions of the revised statutes in relation to conveyances executed by married women residing out of this state.

Before the power has been executed, the principal has the right to revoke it, except when the power is coupled with an interest, as it has been declared in the instrument itself to be irrevocable. The power of sale in a mortgage, it has been seen, is a part of the security itself, and affords an instance of irrevocable powers. When a power of attorney to sell and couvey lands for another has been recorded, an instrument under seal revoking it, is not deemed effectual unless the instrument containing such revocation be recorded in the same office in which the instrument containing the power was recorded. (1 R. S. 763, § 41.) Notice, or a copy of the instrument of revocation, should also be served on the attorney.

An authority must be strictly pursued. A power of attorney authorizing the attorney to sell and execute conveyances and assur

ances in the law of the lands sold, does not authorize the attorney to bind his principal by any covenants. Any act varying from the terms of this power is void. (Nixon v. Hyserott, 5 John. 58. Gibson v. Cold, 7 id. 390.)

An attorney has no right to delegate his authority to any other person, unless the instrument contains a power of substitution. The principle is delegata potestas non potest delegari. (Broom's Maxims, 665.) The party to whom the authority is given must execute it himself, and he cannot delegate it to another. The principal in general employs the agent from the confidence he reposes in him, and it would be a violation of the trust to transfer the authority to another without the express consent of the party who created the power. The principle has a wide application to the doctrine of agency, but we are discussing it only with reference to powers of attorney to sell land.

It is usual in powers of attorney of this kind, if the principal so pleases, to insert in the power a clause authorizing the attorney to substitute one or more attorneys under him to do the act and to retain the power of revocation.

If the authority be given to two or more, it cannot be executed by one alone. All must join. An authority to three jointly is not well executed by two. (Co. Litt. 181 b. Green v. Miller, 6 John. 39. Franklin v. Osgood, 14 id. 553. Sinclair v. Jackson, 8 Cowen, 543.) This is the undisputed rule with respect to private matters between individuals. A different rule obtains in matters of public concern. To obviate the inconvenience of this rule it is provided that the surviving executor or administrator, when the grant has been made to several, may execute the power. But the authority may be so given that the surviving attorney may act. It may be given to several jointly or severally, in which case either one could execute the authority; and if it be given to them or the survivors or survivor of them, the death of one or more, so long as one remains, will not end the power.

We have said the party making the power of attorney may, at any time before it is executed, revoke it. (See ante, p. 269.) But there are other acts which will put an end to the authority. It must be executed during the life of the party creating it, and therefore his death determines the power. (Bac. Abr. tit. Authority, E.) This applies only to a naked power. A power coupled with an interest is not revoked by the death of the grantor of the power. (Id.)

With regard to the manner in which the power must be executed, it may be in general remarked that it must be executed in the name of the principal. If the attorney affix only his own name and seal, the grant is void, although in the body of the instrument it be stated that it is the agreement of the principal by his attorney. (Townsend v. Corning, 23 Wend. 435. Same v. Hubbard, 4 Hill, 351. White v. Skinner, 13 John. 307.) No particular form of words is necessary to be observed by the attorney in executing the instrument, provided the words used import the requisite facts. It should appear upon the face of the instrument that it was intended to be executed as the deed of the principal, and that the seal affixed to the instrument is his seal, and not the seal of the attorney merely. (Wilks v. Back, 2 East, 142. Townsend v. Hubbard, supra.) And when the deed is executed for several parties, it is said not to be necessary to affix a separate and distinct seal for each, if it appear that the seal affixed was intended to be adopted as the seal of each of the parties. (Id.) It will be less likely to lead to disputes, if approved forms be used and a seal affixed to each name.

A power of attorney to convey lands should be duly acknowledged or proved in the same manner that conveyances of real estate are required to be acknowledged or proved, and that it be in all cases recorded in the county where the lands are situated. It should be referred to in the deed executed in pursuance of it by some intelligible description, if it be not in substance set out or recited at large. As it will form a part of the grantee's title to the land, care should be taken that it, as well as the deed, should be duly proved and acknowledged and recorded in the proper county.

All powers of attorney receive a strict interpretation, and the authority is never extended beyond that which is given in terms, or is absolutely necessary for carrying the authority into effect. (Sandford v. Handy, 23 Wend. 260. Nixon v. Hyserott, supra.)

A party dealing with an agent is chargeable with notice of the contents of the power under which he acts. (Warwick v. Warwick,

3 Atk. 294. Willard's Eq. Juris. 250, 608.)