IX. UNDER A POWER PRECEDENT IX. CONVEYANCE by APPOINTMENT under a POWER of SALE in a SETTLEMENT, of a MANOR and other FREEHOLD ESTATE to USES to BAR DOWER; the Purchase having been made at an AUCTION through an AGENT who is a PARTY to the CONVEYANCE (a). 1. Parties. tlement by re covery and bargain and sale. THIS INDENTURE, made, &c., between A. B., of, &c. [donee of the power], of the first part, C. D., of, &c., [tenant for life in possession under the settlement], of the second part, G. H., of, &c. [agent, and also trustee], of the third part. and E. F., of, &c. [purchaser], of the 2. Recital of set- fourth part: WHEREAS, by an indenture of bargain and sale and settlement, dated the 12th day of May, 1814, perfected by inrolment, and expressed to be made between [parties], and by a common recovery duly suffered in pursuance of the same indenture in term (b), in the year of the reign of his late Majesty King before his Majesty's Justices of the Court of Common Pleas at Westminster, the manor, lands, and hereditaments hereinafter expressed to be hereby appointed, were (among other hereditaments) assured and limited (subject to certain sums of money then charged upon the same Recital of fines and recoveries. (a) When a purchase is made at an auction by an agent in his own name, and the contract is signed by him without giving notice of the fact that he is merely an agent, the vendor sometimes requires him to be a party to the conveyance, in order to avoid any question as to his having acquired a beneficial interest in the estate but the more usual course is for the agent to indorse and sign a memorandum of the fact on the contract. (b) A recovery could not be suffered out of term, but a fine might have been levied in vacation and recorded as of the preceding term: (Burton, 109, 110); and hence, in reciting a fine, it is always described as levied "in or as of term,” while a recovery is recited to have been suffered "in term." UNDER A POWER OF SALE. premises or some parts thereof, and which have since PRECEDENT IX. been released), to the use of such person or persons, and for such estate or estates, upon such trusts, and for such intents and purposes, and with, under, and subject to such powers, provisoes, limitations, charges, and declarations, and in such manner and form in all respects as the said (c) I. K. and L. M. should, in manner therein mentioned, direct, limit, or appoint, and in default of and until and subject to such direction, limitation, or appointment, to the use of the said I. K. and her assigns, for her life, without impeachment of waste, with remainder to the use of the said A. B. and N. O., and their heirs, during the life of the said I. K., in trust for her and her assigns, and to preserve contingent remainders with remainder to the use of such person or persons, &c. [ut supra], as the said L. M. alone should, in manner therein mentioned, direct, limit, or appoint, and in default of, and until, and subject to such last-mentioned direction, limitation, or appointment, to the use of the said L. M. and his assigns, for his life, without impeachment of waste, with remainder to the use of the said A. B. and N. O., during the life of the said L. M., in trust for him and his assigns, and to preserve contingent remainders, with remainder to the use of the said C. D. (then an infant under the age of twenty-one years), and his assigns for his life, without impeachment of waste, with remainder to the use of the said A. B. and N. O. and their heirs, during the life of the said C. D., in trust for him and his assigns, and to preserve contingent remainders, with remainders over (d); AND by the said indenture now in recital it was provided and declared that it should be (c) I. K. and L. M. are called "the said," as having in the complete recital been mentioned among the parties to the bargain and sale. (d) As to the period at which narrative recitals should commence, see Vol. i., p. 44; and as to the extent to which limitations and powers should be recited, Id. 50, and as to the manner of reciting an instrument creating a power, Id. 53. 3. Recital of the in the settle power of sale ment; PRECEDENT IX. UNDER A POWER OF SALE. 4.-of death of L. M. without having exercised his power; 5.-of deaths of N. O. and I. K.; 6. of C. D. being of age; 7.-of re-conveyance of an out standing legal estate; lawful for the said A. B. and N. O., and the survivor of (e) A recital of this form may be used in most similar cases with great advantage, for otherwise it would be necessary to carry back the commencement of the recitals to the period at which the legal estate became outstanding. UNDER A POWER rations in and by the said indenture of the 12th day of PRECEDEnt IX. May, 1814, limited, declared, and contained concerning the said hereditaments, as were at the date of the said indenture now in recital subsisting or capable of taking effect; AND WHEREAS the said A. B., in exercise of the 8.-of sale; power of sale hereinbefore recited, and at the request. and by the direction of the said C. D., put up for sale by public auction (f) on the day of, the manor, lands, and hereditaments hereinafter expressed to be hereby appointed, together with other hereditaments comprised in the said indenture of the 12th day of May, 1814, in lots, the eighth lot comprising the said manor, lands, and hereditaments hereinafter expressed to be hereby appointed; and at the said sale, the said G. H. was the highest bidder for, and was declared the purchaser of the hereditaments comprised in the said eighth lot, at the price of £1600, and immediately after the said sale the said G. H. paid the sum of £160 to or on account of the said A. B., by way of deposit and in part payment of the said sum of £1600; AND WHEREAS the said purchase was made by the said 10. G. H. only G. H. as agent for the said E. F., and the said sum of E. F. £160 paid by way of deposit as aforesaid was money belonging to the said E. F. NOW THIS INDENTURE 11. Witnesseth. effectuating the sale, and in WITNESSETH that for 9.-of purchase and payment of deposit. an agent for consideration of the sum of £160, paid by the said G. H. Consideration. on behalf of the said E. F. as hereinbefore mentioned, and of the sum of £1440 upon the execution of these presents (ƒ) As has been previously observed, ante, Vol. i., p. 54, all reference to the written agreement for sale or to the auction should, if possible, be avoided; and where, as in the text, owing to circumstances the reference cannot be avoided, it is best to make no specific allusion to the printed particulars or to the written agreement for sale, so that notice of them may not be put upon the title. Recital of sale by auction. PRECEDENT IX. OF SALE. knowledge), He the said A. B., in exercise of the said Power contained in the said indenture of the 12th day of May, 1814, and the said indenture of release by reference thereto as hereinbefore recited, and of every or any other power enabling him, and at the request and by the direction of the said C. D. (testified by his being a party to and executing these presents (g)), doth by this present 12. revokes old deed revoke, determine, and make void (h) all and every Donee of power of sale, at request of tenant for life, uses, Consent to exercise of a power of sale, what is sufficient. Manner of exercising a power of sale in a settlement. (g) When the consent of any person is required to the exercise of a power of sale, it is desirable to obtain that consent to the particular sale; for it seems doubtful if a general prospective consent, or a consent given after the execution of the power, is sufficient: Hawkins v. Kemp, 3 East, 410; Attorney-General v. Sitwell, 1 Y. & C. 559; Wiles v. Gresham, 2 Drew. 258; and where the consent of a class of persons is imperatively required to the execution of a trust for sale, the death of one of the class renders it impossible to execute the trust: Sykes v. Sheard, 2 N. R. 540. The power of a tenant for life to consent to a sale is not affected by his bankruptcy: Holdsworth v. Goose, 29 Beav. 111; Eisdell v. Hammersley, 31 Beav. 254, and à fortiori it would seem not to be affected by judgments registered against him. See Lord Leigh v. Lord Ashburton, 11 Beav. 470. For the purpose of consenting to an exercise of the statutory powers conferred on trustees and mortgagees by the 23 & 24 Vict. c. 145, incumbrances are not an impediment, 8. 31. (h) The terms and operative words of the power should be rigidly adhered to, and all consents and requests which are necessary should be expressed; and in all cases the operative words used in the power should be employed in its execution. It is however, as has been previously remarked (supra, p. 174, n. (c)), unnecessary to refer in the inoperative part of the deed to the formalities with which its execution is meant to be attended, or to the attesting witnesses. "A power to appoint includes in itself a power to revoke, and a power to do an act which can only be effected by an appointment, authorises an appointment, and, therefore, a revocation. Whatever, for example, be the form in which a power of sale is given, it will operate as a power of revocation and new appointment, and may be executed accordingly:" Sugd. Pow. 196; Bishop of Oxford v. Leighton, 2 Vern. 367. It is usual in practice to exercise a power of sale, by revoking the old, and appointing to the new uses: but it is not essential to do so, unless the power expressly be to revoke the old uses, and then to appoint new uses, as the purchaser directs. And it is by no means needful to have distinct witnessing parts for |