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When Powers irrevocable.
In whom Powers
Execution of Pow. er by Survivors.
instrument containing the power shall be recorded; but as against all other persons, the power shall be a lien from the time the instrument in which it is contained shall take effect.
(2693.) Sec. 36. Every power, beneficial or in trust, is irrevocable, unless an authority to revoke it is reserved or granted in the instrument creating the power.
(2694.) Sec. 37. A power may be vested in any person may be Vested,
capable in law of holding lands, but cannot be executed by any person not capable of aliening lands holden by such person, except in the single case mentioned in the next section.
(2695.) SEC. 38. A married woman may execute a power during her marriage, by grant or devise, as may be authorized by the power, without the concurrence of her husband, unless by the terms of the power, its execution by her during marriage is expressly or impliedly prohibited; but no power vested in a married woman during her infancy, can be exercised by her, until she attains her full age.
(2696.) Sec. 39. When a power is vested in several persons, 2 Paige, 197. all must unite in its execution; but if previous to such
execution, one or more of such persons shall die, the power may be executed by the survivor or survivors.
(2697.) Sec. 40. No power can be executed except by some instrument in writing, which would be sufficient in law to pass the estate or interest intended to pass under the power, if the person executing the power were the actual owner.
(2698.) Sec. 41. Every instrument, except a will, made in execution of a power, whether it be a power of revocation or otherwise, shall be deemed a conveyance within the meaning, and subject to the provisions of the next succeeding chapter.
(2699.) Sec. 42. When a power of disposition is confined to a disposition by devise or will, the instrument must be a will duly executed according to the provisions of law relating to wills of real and personal estate.
(2700.) Sec. 43. When a power is confined to a disposition by grant. by grant, it cannot be executed by will, although the
disposition is not intended to take effect until after the death
of the party in whom the power is vested. How grant to be
(2701.) Sec. 44. If a married woman execute a power by acknowledged by Married Women. grant, such grant shall be acknowledged by her on a private
examination in the manner prescribed in the next succeeding chapter, in relation to conveyances by married women, and shall not be valid unless so acknowledged.
Instruments deemed convey• ances.
Execution of Power to dispose by devise.
(2702.) Sec. 45. When the grantor of a power shall have Directions by directed or authorized it to be executed by an instrument not sufficient to pass the estate, such power shall not be void, but its execution shall be governed by the rules prescribed in this chapter.
2703.) Sec. 46. When the grantor shall have directed any lbid. formalties to be used in the execụtion of a power, in addition to those which would be sufficient by law to pass the estate, the observance of such additional formalities shall not be necessary to a valid execution of the power. (2704.
) Sec. 47. When the conditions annexed to a power Nominal condi. are merely nominal, and evince no intention of actual benefit to the party to whom, or in whose favor they are to be performed, they may be wholly disregarded in the execution of
of grantor to be
(2705.) Sec. 48. With the exceptions contained in the pre- When directione ceding sections, the intentions of the grantor of a power, as to obsirved. the mode, time and conditions of its execution, shall be olverved, subject to the power of a Court of Chancery to supply a defective execution, in the cases hereinafter provided.
(2766.) Sec. 49. When the consent of a third person to the consent of third exerution of the power is requisite, such consent shall be lion of Power. expressed in the instrument by which the power is executed, or shall be certified in writing thereon; and in the first case, the instrument of execution, in the second, the certificate, shall be signed by the party whose consent is required ; and to entitle the instrument to be recorded, such signature must be duly proved or acknowledged, in the same manner as if subscribed to a conveyance of lands.
(2707.) Sec. 50. No disposition, by virtue of a power, shall certain disposi be voiil in law or equity, on the ground that it is more extensire than was authorized by the power; but every estate or intere-t so created, so far as embraced by the terms of the power, shall be good and valid.
(2708.) Sec. 51. Every instrument executed by the grantee omission to regite of a power, conveying an estate, or creating a charge which such grantee is authorized by the power to convey or create, but which he would have no right to convey or create, unless by virtue of his power, shall be deemed a valid execution of the power, although such power be not recited or referred to therein.
(2709.) Sec. 52. Instruments in execution of a power are Fraud
tio is not void.
Power to devise, etc.
Certain E-tate s to be advancements.
Computation of time of suspen. rion.
Who may not tako under Powers.
affected by fraud, both in law and equity, in the same manner as conveyances by owners or Trustees.
(2710.) Sec. 53. Lands embraced in a power to devise, shall pass by a will, purporting to convey all the real property of the testator, unless the intent that the will shall not operate as an execution of the power, shall appear expressly, or by necessary implication.
(2711.) SEC. 54. Every estate or interest given by a parent to a descendant by virtue of a beneficial power, or of a power in trust with a right of selection, shall be deemed an advancement to such descendant, to the same extent, and under the same circumstances that a gift of real or personal estate would be deemed an advancement.
(2712.) Sec. 55. The period during which the absolue right of alienation may be suspended by any instrument in execution of a power, shall be computed from the time of the creation of the power, and not from the date of such instrument.
(2713.) Sec. 56. No estate or interest can be given or limited to any person, by an instrument in execution of a power, which such person would not have been capable of taking, under the
instrument by which the power was granted. Married Women, (2714.) Sec. 57. When a married woman, entitled to an
estate in fee, shall be authorized by a power to dispose of such estate during her marriage, she may, by virtue of such power, create any estate which she might create if unmarried.
(2715.) SEC. 58. When the execution of a power in trust shall be defective, in whole or in part, under the provisions of this chapter, its proper execution may be decreed in equity, in favor of the persons designated as the objects of the trust.
(2716.) Sec. 59. Purchasers for a valuable consideration, claiming under a defective execution of any power, shall be entitled to the same relief in equity, as similar purchasers claiming under a defective conveyance from an actual owner.
(2717.) SEC. 60. When a power to sell lands shall be given to the grantee, in any mortgage or other conveyance intended to secure the payment of money, the power shall be deemed a part of the security, and shall vest in, and may be executed by any person, who, by assignment or otherwise, shall become
entitled to the money so secured to be paid. Application of
(2718.) Sec. 61. The provisions of this chapter shall not extend to a simple power of Attorney, to convey lands in the name, and for the benefit of the owner.
their a u t hority, etc.
Powers to sell on
(2719.) Sec. 62. The term "grantor of a power," is used in terms “grantor
" " this chapter as designating the person by whom a power is grante's of created, whether by grant or devise; and the term "grantee of a power," is used as designating the person in whom a power is vested, whether by grant, devise, or reservation.
of a Power," and
OF ALIENATION BY DEED, AND THE PROOF AND RECORDING
OF CONVEYANCES, AND THE CANCELING OF MORTGAGES.
721. Coare şance by husband and wise.
sting in this State. 2702. Coareyanee by Married Woman residing
out of this State. 3. Proof of execution, etc.
A. In case of death of subscribing witnesses. 235, 2736. Proceedings on refusal of Grantor
residing in this State, to acknowledge
Deed. 2:37. When execution may be proved before
Court of Record in case of death, etc. 5733. Subpanas for witnesses. 20. Punishment for refusing to appear, or to
ansver, ete. 24. Filing copy of Deed with Register, etc.,
efeet. 20. When effect of filing to continue. 2:42. Certbeate to entitle Deed to be recorded. 7742. Entry books of Deeda and Mortgages to be
kept by Register.
against subsequent purchasers.
instruments as evidence.
in this Chapter.
used in this Chapter.
of Attorney, etc.
cording to Law in force.
to cause records of Deeds, etc., of Lands
of County to which it was attached.
Chapter Sixty-Five of the Revised Statutes of 1846.
Land be made by Deed. 1810, p. 166.
15 II, .
3 Pick , 521, 4 Mason, 45.
Form of Deed.
Torct 'of certain
Conveyance of (2720.) Section 1. Conveyances of lands, or of any estate
or interest therein, may be made by deed, signed and sealed lic.keep : 300 by the person from whom the estate or interest is intended to
pass, being of lawful age, or by his lawful agent or Attorney, and acknowledged or proved and recorded as directed in this
chapter, without any other act or ceremony whatever. Conveyance by
(2721.) Sec. 2. A husband and wife may, by their joint deed, Mass., 19, 291. convey the real estate of the wife, in like manner as she might
do by her separate deed, if she were unmarried; but the wife shall not be bound by any covenant contained in such joint deed.
(2722.) SEC. 3. A deed of quit claim and release, of the 8 Pick., 143.
form in common use, shall be sufficient to pass all the estate which the grantor could lawfully convey by a deed of bargain and sale.
(2723.) Sec. 4. A conveyance made by a tenant for life or years, purporting to grant a greater estate than he possessed or could lawfully convey, shall not work a forfeiture of his estate, but shall pass to the grantee all the estate which such tenant could lawfully convey.
(2724.) Sec. 5. No covenant shall be implied in any convey2 Barb. Ch. R., ance of real estate, whether such conveyance contain special
covenants or not.
(2725.) Sec. 6. No mortgage shall be construed as implying a covenant for the payment of the sum thereby intended to be secured; and where there shall be no express covenant for such payment contained in the mortgage, and no bond or other separate instrument to secure such payment shall have been given, the remedies of the mortgagee shall be confined to the
lands mentioned in the mortgage. Conveyancerin (2726.) Sec. 7. No grant or conveyance of lands, or interest
therein, shall be void for the reason that at the time of the execution thereof such lands shall be in the actual possession
of another claiming adversely. Execution and
(2727.) SEC. 8. Deeds executed within this State, of lands, or any interest in lands therein, shall be executed in the
presence of two witnesses, who shall subscribe their names to the 3 Mich. Der 581. same as such, and the persons executing such deeds may 22 Jetcalf, 1:7. acknowledge the execution thereof before any Judge or Com
missioner of a Court of Record, or before any Notary Public,
Covenants in Con-
Lands possessed. 4 Scammon, 67.
acknowledguent of Deed.
Wal. Ch. R.,