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Powers simply

collateral can

are for this purpose most conveniently divided into those which are, and those which are not, simply collateral.

The Conveyancing Act, 1882, has enacted (w) that not (in general) a person to whom any power, whether coupled with an be destroyed interest or not, is given, may by deed disclaim the But powers not power; and this applies whether the instrument creatsimply collateral may be. ing the power came into operation before or after the

or alienated.

Suspension of powers.

commencement of the Act. With this exception, powers simply collateral cannot be destroyed or alienated (x). But it is otherwise with powers not simply collateral; for these may be, under certain circumstances, (1) suspended (or partially destroyed); (2) extinguished (or wholly destroyed); or (3) alienated. We will proceed to consider these points separately.

The suspension of powers can only occur in cases of powers appendant, and will happen where the exercise of the power would be in derogation of some previous estate or interest created under the power. This is well illustrated by a leading case (y), in which the facts were as follows:-Lord Bolingbroke was tenant for life of certain lands, with a power, if it should be desired to sell them, to revoke the uses to which they were held, and appoint new uses in favour of a purchaser. Lord Bolingbroke, in consideration of £3000, granted an annuity to last for his lifetime, and, in order to secure its payment, demised the lands to the annuitant for a term which was to expire on his (Lord Bolingbroke's) death. Afterwards he purported to revoke the uses to which the lands were held, joined in a sale of them, and appointed them to new uses in favour of the purchaser. The latter claimed to hold them free from the lease to the annuitant, which he could, of course, do if Lord Bolingbroke's revocation.

(w) 45 & 46 Vict. c. 39, s. 6.
(x) Digge's Case, 1 Rep. 173a.
(y) Goodright v. Cator, 2 Doug. 477.

But the Extinguish

ment of

of the use to himself for life was effectual. Court of Chancery held that the power of revoca- powers. tion was suspended, so far as regarded the estate of the tenant for life, since otherwise he would have been able, by the exercise of his power, to commit a gross fraud in taking away the security for the annuity (z).

The extinguishment of powers not simply collateral may occur in the case of either those which are appendant or those which are in gross. It occurs with powers of the first kind where the donee of the power parts with all his interest in the property subject to his power. For the very definition of an appendant power points to this. Suppose, for instance, that a tenant for life has power to make leases to take effect in possession. If he assigns the whole of his interest to another person, it is clear that any subsequent lease of that property made by him could not take effect out of his interest in the property, since he no longer has any. His power of making leases is, therefore, extinguished. But the rule will not apply where he does not entirely part with his interest in the property; as if he conveys it to trustees, but on trust to hold it for himself, subject to payments, out of the profits of it, to other people (a).

Cases in which a power in gross is extinguished do not often happen. For since no estates created by the donee of such a power can affect his own interest, he cannot, by the exercise of the power, prejudice any person to whom he may have transferred his interest; such a transfer cannot, therefore, extinguish his power. But the power is extinguished where he has, subsequently to his acquisition of the power, done some act which would be defeated by any future exercise of

(z) And see Bringloe v. Goodson, 4 Bing. N. C. 726; Hurst v. Hurst, 16 Beav. 372.

(a) Ren v. Bulkeley, 1 Doug. 291; Long v. Rankin, Sug. Pow. 895.

Alienation of powers.

By release.

Involuntary
alienation.
Bankruptcy
Act, 1869.

the power. Thus, where a tenant for life, who had a power of charging the land subject to the power with the payment of a sum of money to other persons, joined in revoking the settlement and making a new one, whereby he was made tenant for life of the property but without a power of charging it; it was held that this power had been extinguished by his joining in the new settlement (b).

Both powers appendant and those in gross may be alienated. Where the power is one which the donee may exercise for his own benefit, he has, in fact, something reserved to him out of the property subject to his power, and this he may alienate at pleasure by releasing his power. If, for example, having a power of charging land with the payment of a sum of money to himself, he joins in a conveyance of the land clear of the charge, this will operate as a release of his power (c). And a power in gross may also be released, although the exercise of such a power cannot confer any benefit on the donee of the power (d). But this is subject to the rule that the release must not be made with the object of obtaining for the donee of the power some benefit which he could not get otherwise. For, in such a case, equity will refuse to give present effect to the release, so far as it would operate in favour of the donee (e).

Lastly, a power, the exercise of which can confer any benefit on the donee of the power, may be the subject of involuntary alienation; it being provided by the Bankruptcy Act, 1869 (ƒ), that (g) the property of any bankrupt divisible amongst his creditors

(b) Savile v. Blacket, 1 P. Wms. 777.

(c) See West v. Berney, 1 Russ. & My. 431, 434.

(d) Smith v. Death, 5 Madd. 371; Horner v. Swann, Turn. & Russ, 430.

(e) Cunynghame v. Thurlow, 1 Russ. & My. 436".

(f) 32 & 33 Vict. c. 71.

(g) S. 15.

shall include the capacity to exercise, and to take proceedings for exercising, all such powers in, or over, or in respect of property, as might have been exercised by the bankrupt for his own benefit at the commencement of the bankruptcy, or during its continuance, except the right of nomination to a vacant ecclesiastical benefice.

Joint-tenancy.

CHAPTER XI.

OF ESTATES IN JOINT-TENANCY, TENANCY IN COMMON,

AND COPARCENARY.

HITHERTO We have considered estates in land as belonging to one tenant only: we will, in this chapter, briefly consider some cases in which an estate may belong to more than one tenant.

The first of these which we will notice is that of an estate being held in Joint-Tenancy, or by two or more Joint-Tenants.

A joint-tenancy may exist in any kind of estate in land. In order to constitute it, there must be, amongst the tenants, unity of interest, unity of title, unity of time, and unity of possession (a). In other words, the tenants must have the same quantity of interest (for instance, one cannot hold for life, and another in fee-simple); their estates must be created by the same act, and must commence simultaneously (except under circumstances to be presently noticed); and each must have entire possession of the land concurrently with the others, thus constituting one owner and one estate. The exception above referred to occurs where joint-tenants take by way of use or under a will. Thus, if there be a gift, made either by deed or by will, to the use of the children of A., or a gift by will to the children of A., those children of A. who may be born after the deed or will has

(a) 2 Bl. Com. 180.

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