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executed, and inheritances executory; as lands executed by livery, &c. cannot by indenture of defeasance be defeated afterwards. And so, if a disseisee release a disseisor, it cannot be defeated by indentures of defeasance made afterwards; but at the time of the release or feoffment, &c. the same may be defeated by indentures of defeasance, for it is a maxim in law, Quæ incontinenti fiunt in esse videntur (p 3).

But rents, annuities, conditions, warranties, and such like, that be inheritances executory, may be defeated by defeasances made, either at that time, or any time after and so the law is of statutes, recognizances, obligations, and other things executory.

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Lastly, somewhat were necessary to be spoken concerning clauses of provisoes, containing power of revocation, which since Littleton wrote are crept into voluntary conveyances, which pass by raising of uses, being executed by the (*) statute of 27 H. 8. and are become very frequent, and the inheritance of many depend thereupon. As if a man seised of lands in fee, and having issue divers sons, by deed indented, covenanteth in consideration of fatherly love, and for the advancement of the blood, or upon any other good consideration, to stand seised of three acres of land to the use of himself for life, and after to the use of Thomas his eldest son in tail; and for default of such issue, to the use of his second son in tail, with divers like remainders over; with a proviso that it shall be lawful for the covenantor at any time during his life to revoke any of the said uses, &c. this proviso being coupled with an use, is allowed to be good, and not repugnant to the former states. But in case of a feoffment, or other conveyance, whereby the feoffee or grantee, &c. is in

on pain of forfeiture, a parol licence was held not to discharge the lessee from the proviso. Roe v. Harrison, 2 T. R. 415. S. P. Mease v. Mease, Cowp. 47. Littler v. Holland, 3 T. R. 590. Brown v. Goodman, 3 T. R. 592 n.--[Ed.]

(P3.) In case of a feoffment, &c. where the estate is executed, it is not to be defeated by condition or defeasance, uniess contained in the same deed, or in another executed at the same time. 2 Saund. 48. But the law is clear that a bond, judgment, or statute, may be defeated by a subsequent defeasance. Cro. Eliz. 623. 755. So an obligation, &c. may be defeated by a defeasance made after the condition is broken, as well as before. Ayloffe v. Scrimpshire, Carth. 64. 2 Saund. 48 b. n. (2). But if a thing executory at its commencement be after executed, it cannot be defeated by a subsequent defeasance. 5 Co. 90 b.-[Ed.]

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On revocation of uses, covenantor seised in fee without entry or claim.

May revoke part of the ases at one time, and part at another.

On alienation of part, the power extinct for part only-on alienation of the whole, all the power extinct. Lib. 1. fol. 173. 174. Digge's case, lib. 1. fol. 107. Albanie's case, lib. 10. fol. 143. Scrope's case, lib. 7. fol. 12. 13. Sir Franeis Englefield's case.

Secus in the case of a power without interest.

New uses may be limited by the same conveyance revoking the old.

Powers of revocation to be construed favourably.

by the common law, such a proviso were merely repugnant and void.

And first, in the case aforesaid, if the covenantor, who had an estate for life, do revoke the uses according to his power, he is seised again in fee-simple without entry or claim

Secondly, he may revoke part at one time, and part at another.

Thirdly, if he make a feoffment in fec, or levy a fime, &e. of any part, this doth extinguish his power but for that part; whereas in that case the whole condition is extinct. But if it be made of the whole, all the power is extinguished; so as to some purposes it is of the nature of a condition, and to other purposes in nature of a limitation.

(2 Rol. Abr. 263. 1 Rol. Abr. 331.)

Fourthly, if he that hath such power of revocation hath no present interest in the land, nor by the ceasor of the estate shall have nothing, then his feoffment or fine, &c. of the land is no extinguishment of his power, because it is mere collateral to the land.

Fifthly, by the same conveyances that the old uses be revoked, may new be created or limited, where the former cease ipso facto by the revocation, without either entry or claim.

Sixthly, that these revocations are favourably interpreted, because many men's inheritances depend on the same (2 3) And here I may apply the abovesaid verse:

Ex paucis dictis intendere plurima possis.

(3.) Powers of revocation, in their creation, are to be construed favourably, and therefore no express or technical words are necessary to the creating of such powers; but any expression which denotes an intent to reserve such power will be sufficient. Bishop of Oxford v. Leighton, 2 Vern. 376. Lavender v. Blackstone, 3 Keb. 26. But if such power be once executed, that is, the old uses over the whole estate revoked, and new uses limited, such new uses cannot be revoked without an express reservation of a power for such purpose. Hele v. Bond, Prec. Ch. 474. Zouch v. Woolston, 2 Burr. 1136. 2 Ves. 211. A power of revocation

may extend to all the limitations, or be restricted to a particular estate limited by the conveyance; as where the use is to A. for life, remainder

over, with a power to revoke the estate for life only, this seems, says Rolle, to be a good power. Thomson v. Freston, 2 Rol. Abr. 262. A power of revocation may be either a power relating to the land, that is, a power limited to one that had, has, or shall have an estate or interest in the land, which power is either appendant or in gross: or simply collateral; as where the party to whom the power is reserved has not, nor ever had any estate in the land. Edwards v. Slater, Hard. 415. Gilb. on Uses, 141. 143. Sanders on Uses, 288. 2 Fonbl. Tr. Eq. 155. With respect to the reservation of powers of revocation, Mr. Sugden, in his valuable Treatise of Powers, states the result of the authorities to be, “1st, That in a deed executing a power, a power of revocation and new appointment may be reserved, although not expressly authorized by the deed creating the power. Adams v. Adams, Cowp. 651. Vid. Digge's case, 1 Co. 173 b. And that such powers may be reserved toties quoties. Becket's case, Lane, 118. Hele v. Bond, supra. Digge's case, supra. 2d, That where an appointment under a power is made by deed, it cannot be revoked unless an express power be reserved in the deed by which the power is executed: a revocation will not be authorised by a general prospective power in the deed creating the first power. Hele v. Bond, supra. 3d, That although in the original settlement a power of revocation only be reserved, yet a power to limit new uses is implied, and may be executed accordingly (Fowler v. North, 3 Keb. 7. Anon. 1 Ch. Ca. 242. Colston v. Gardner, 2 Ch. Ca. 46.), unless a contrary intention can be collected from the whole settlement (Anon. Stra. 584.), er the estate is expressly limited to other uses. Atwaters v. Birt, Cro. Eliz. 85. But 4th, That every power reserved in a deed executing a power will be strictly construed, and therefore a mere power of revocation in such a deed will not authorize a limitation of new uses. Ward v. Lenthal, 1 Sid. 348." Sug. Pow. 314, 315. Upon the authority of Wall v. Thurbourne (1 Vern. 355.) an opinion has prevailed, that a power of revocation cannot be annexed to a power simply collateral; but such a doctrine, Mr. Sugden remarks, would be very inconvenient, and certainly cannot be considered as settled. Idem, 316. The same writer also observes, that the decisions as to the necessity of reserving a power of revocation in order to authorise a party to revoke an appointment by deed, have always been considered to apply to personal as well as real estate: and that, notwithstanding the late case of Perrot v. Perrot, (East, 423.), it is not, perhaps, at this day possible to contend, that an appointment by deed shall be revocable because the donee might have appointed by will, which would have been revocable. Sug. Pow, 317.319. -Ed.]

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CHAP. XXVIII.

OF ESTATES IN REMAINDER AND REVERSION. (A)

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A REMAINDER is a residue of an estate in land, depending upon a particular estate, and created together with the same, and in law Latin it is called remanere (1).

Remainder, in legal Latin, is remanere, coming of the Latin word remaneo; for that it (a) is a remainder or remnant of an estate in lands or tenements, expectant upon a particu lar estate created together with the same at one time, as in the case of Littleton (sect. 215.) appeareth (2) (B).

By section 215 it appeareth, that if a man maketh a gift in tail, the remainder in fee, without deed (b)(c), the remain

(1) "Sect. 215." Hal. MSS.[Hargr. n. 9. 49 a.]

(2) See Fearne's Ess. on Cont.

Rem. 3d ed. p. 5 to 11.-[Hargr. n. 2. 143 a.]

(A) In the former chapters of this book, the doctrine of estates has been considered, 1st. with regard to the duration, or the quantity of interest, which the owners have therein; and 2d. in respect of the number and connexion of the tenants: we are now to consider them with regard to the time of enjoyment, as they are either in possession or expectancy. Estates in possession are those where the tenant is entitled to the actual pernancy of the profits. Estates in expectancy are those where the right to the pernancy of the profits is postponed to some future period, and are of two sorts-remainders and reversions. An estate in remainder, says Sir William Blackstone, may be defined to be, an estate limited to take effect, and be enjoyed, after another estate is determined. As if a man, seised of lands in fee-simple, grants them to A. for twenty years, and, after the determination of that term, to B. and his heirs for ever: A. is tenant for twenty years, with remainder to B. in fee. In the first place, an estate for years is created or carved out of the fee, and given to A., and then the residue or remainder of the estate is given to B. Both these interests, however, are but one estate; the present term for years, and the remainder after, when added together, being equal only to one estate in fee. They are different parts, constituting one whole, being carved out of one and the same inheritance: they are both created, and may both subsist at the same time, the one in possession, the other in expectancy. 2 Bl. Com. 164.-[Ed.}

(B) And therefore, wherever the whole fee is first limited, there can be no remainder in the strict sense of that word; for the whole being disposed of, no remnant exists to limit over. Ant. 18 a. 10 Rep. 97 b. Plowd. 29. Vaugh. 269. Dyer, 33 a. 1 Ab. Eq. 186.-[Ed.] (C) That is, at common law, before the 29 Car. 2. c. 3.—[Ed.]

der is good, and passeth out of the donor by the livery of seisin; and so it is of a lease for life or years, the remainder over in fee; for the particular estate and the remainder, to many intents and purposes, make but one estate in judgment of law. Vide sect. 60.

IF a man letteth lands or tenements by deed, or without deed (for seeing that the remainders take effect by livery, there needs no deed (3) (*)), (4) for term of years, the remainder over to another for life, or in tail, or in fee; in this case it behoveth that the lessor maketh livery of seisin to the lessee for years, otherwise nothing passeth to them in the remainder, although that the lessee enter into the tenements. And if the termor in this case entereth before any livery of seisin made to him, then is the freehold and also the reversion in the lesSOT. But if he maketh livery of seisin to the lessee, then is the freehold together with the fee to them in the remainder, according to the form of the grant, and the will of the lessor.

"Maketh livery of seisin to the lessee." This livery is not necessary in this case for the lessee himself, because he hath but a term for years, but it is for the benefit of them in the remainder, so as the livery to the lessee shall enure for the benefit of them in the remainder: for the livery of the possession could not be made to the next in remainder, because the possession belonged to the lessee for years; and for that the particular term, and all the remainders, made in law but one estate, and take effect at one time, therefore the livery is to be made to the lessee.

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Littleton (sect. 721.) setteth down a rule concerning remainders, viz. every remainder which commenceth by deed ought to vest in him to whom it is limited, when livery of seisin is made to him that hath the particular estate (D).

(3) "12 H. 4. 20." Hal. MSS.[Hargr. n. 8. 49 a.]

(*) See n. (C), supra.
(4) Un pur, L. and M.

(D) Remainders are either vested or contingent. Vested remainders, or remainders executed, are those by which a present interest passes to the party, though to be enjoyed in futuro; and by which the estate is invariably fixed to remain to a determinate person after the particular estate is spent. As if A. be tenant for years, remainder to B. in fee; hereby B.'s remainder is vested, which nothing can defeat or set aside. 2 Bl. Com. 169. The person entitled to a vested remainder has an immediate fixed right of future enjoyment, that is, an estate in presenti ;

LITTLETON. [Sect. 60. 49a.] On lease for years, remainder for life, &c. livery of seisin necessary. [COKE, 49 a.]

22 H. 6. 1. 10 E. 4. 1

18 E. 4. 13.

49 a.

*49 b.

(Ante, 143a.)

378 a. Regularly remainder the particular estate is

should vest at the time

created:

(Plowd. 25 a. 29 a. 2 Cro. 360.)

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