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ART. 3.

5 N, Y. 413; 2 Sandf. s.

Id.

114. Execution

1. By a suitable clause contained in a conveyance of some estate in the lands, to which the power relates : 2. By a devise contained in a last will and testament.

C., 580;

4 Lans., 238; 36 N. Y., 583; 28 Hua, 64; 92 N.'Y., 627. § 107. Every power shall be a lien or charge upon the lands which when powit embraces, as against creditors and purchasers in good faith and recorded. without notice, of or from any person having an estate in such lands, & Bosw. only from the time the instrument containing the power shall be duly Co., 555; 6 recorded. As against all other persons, the power shall be a lien Burg, 5:34: 11 from the time the instrument in which it is contained, shall take effect.

When pow § 108. Every power, beneficial or in trust, is irrevocable, unless ors irrevoan authority to revoke it, is granted or reserved in the instrument 12 N.Y., creating the power.

404;1 Barb.,

62; 2 Barb.

58; 28 Barb.,498; 46 N. Y., 577; 65 Barb., 250; il Daly, 96. 109. A power may be vested in any person capable in law of Who to ex. holding, but cannot be exercised by any person not capable, of alien- powers.

10 Barb., ing lands, except in the single case mentioned in the next section. 604.

§ 110. A married woman may execute a power during her mar- Married riage, by grant or devise, as may be authorised by the power, with- 23. 1. out the concurrence of her husband, unless by the terms of the power 1.,307; 12 its execution by her, during marriage, is expressly or impliedly pro- 123; 27 hibited.

Barb., 832; 1 Barb. Ch., 13, 240; 10 Barb., 597. ģ. No power vested in a married woman, during her infancy,

· 1 Bradf., can be exercised by her, until she attains her full age.

$ 112. Where a power is vested in several persons, all must unite by survivin its execution; but if previous to such execution, one or more of ato. such persons shall die, the power may be executed by the survivor 250,... or survivors.

254; 6 Abb., Pr., N. S., 296; 11 N. Y., 397; 1 N. Y., 358; 1 Barb. Ch., 569; 2 Paige, 197; 1 Sweeny, 69; 3 Han, 51. 113. No power can be executed except by some instrument in Howexe. 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 398; 63 were the actual owner.

Barb., 258; § 114. Every instrument, except a will, in execution of a power, Instruand although the power may be a power of revocation only, shall be deemed deemed a conveyance within the meaning, and subject to the pro- ances. visions, of the third chapter of this act.

§ 115. Where a power to dispose of lands is confined to a dispo- Execution sition by devise or will, the instrument of execution must be a will of power to duly executed, according to the provisions of the sixth chapter of devise. this act.

597; 11

Barb., 69; 97 N. Y. 566. § 116. Where a power is confined to a disposition by grant, it Id., to discannot be executed by will, although the disposition is not intended grant. to take effect until after the death of the party executing the power. 4 Barb.,

412; 3 Barb., 1:28; 97 N. Y., 556. ý 117. If a married woman execute a power by grant, the concur- Married rence of her husband, as a party, shall not be requisite, but the grant acknowl. shall not be a valid execution of the power, unless it be acknowledged cutions. by her on a private examination, in the manner prescribed in the third 63 Barb., chapter of this act, in relation to conveyances by married women. Barb., 71;

[See L. 1879, ch. 249, as amended by L. 1880, ch. 300, post.]

R. (T. & C.),

1736) 11 Ñ. Y.,

28 Hun, 603.

12 N. Y., 404.

10 Barb.,

4 N. Y., 11;

16 W.D., 478.

TITLE 2.

§ 118. Where the grantor of a power shall have directed or authorDirections ised it to be executed by an instrument not sufficient in law to pass by grantor,

the estate, the power shall not be void, but its execution shall be

governed by the rules before prescribed in this article. Directions § 119. When the grantor shall have directed any formalities to be 23 Hun, 603. observed in the execution of the 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

by grantor.

the power.

Nominal conditions 49 N. Y., 602.

served.

ecution of
power.
il N. Y.,

$ 120. Where the conditions annexed to a power 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 dis

regarded in the execution of the power. When di § 121. With the exceptions contained in the preceding sections, rections of grantor to the intentions of the grantor of a power, as to the mode, time and be ob

conditions of its execution, shall be observed, subject to the power 2 Denio, 61; of the court of chancery, to supply a defective execution, in the 133.

cases hereinafter provided. Consent of § 122. When the consent of a third person to the execution of a third per. sons to ex power is requisite, such consent shall be expressed in the instru

ment by which the power is executed, or shall be certified in writing 397, 401; 49

thereon. In the first case, the instrument of execution, in the second, N. Y., 602. 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. (737) § 123. No disposition, by virtue of a power, shall be void in law Postaingis- or in equity, on the ground that it is more extensive than was authornot void. ised by the power; but every estate or interest so created, so far as

embraced by the terms of the power, shall be valid. Omission $ 124. Every instrument executed by the grantee of a power, conpower. veying an estate or creating a charge, which such grantee 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. Fraud. § 125. Instruments in execution of a power are affected by fraud,

both in law and equity, in the same manner as conveyances by

owners or trustees. Power to § 126. Lands embraced in a power to devise, shall pass by a will devise, how exe purporting to convey all the real property of the testator, unless the cuted by

intent that the will shall not operate as an execution of the power,
shall appear, expressly or by necessary implication.
Barb., 91 ; 92 N. Y, 295, 539.

§ 127. Every estate or interest given by a parent to a descendant, advance- 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, Bosw., 188. within the provisions of the second chapter of this act. Computa. § 128. The period during which the absolute right of alienation

to recite

terms of
will.
25 Barb.,

43 Certain es tates to be

564 ;

ments,
61 Barb.,

may be suspended, by any instrument in execution of a power, shall suspension. be computed, not from the date of such instrument, but from the 555; 12 N. time of the creation of the power. Duer, 73 ; 4 Hun, 290 ; 29 N. Y., 39, 78 ; 30 Hun, 617 ; 96 N. Y., 214.

tion of term of

Y., 404; 3

ART. 4.

Who may take under

3 Duer, 95; 16 Wend., 324.

II N. Y., 400.

§ 129. 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 powers. power was granted.

§ 130. When a married woman, entitled to an estate in fee, shall Married be authorised by a power to dispose of such estate during her mar- their auriage, she may by virtue of such power, create any estate, which she thority, might create if unmarried.

§ 131. Where the execution of a power in trust shall be defective, Defective in whole or in part, under the provisions of this article, its proper 3N. Y., 278. execution may be decreed, in equity, in favor of the persons designated as the objects of the trust.

§ 132. Purchasers for a valuable consideration, claiming under a ia. 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.

§ 133. Where a power to sell lands shall be given to the grantee, Powers to in any mortgage or other conveyance intended to secure the payment

mortgages. of money, the power shall be deemed a part of the security, and (738) shall vest in, and may be executed by any person, who, by assign- 33 Hun, 618 ment or otherwise, shall become entitled to the money so secured to 35 Hun, 581. be paid.

§ 134. The provisions of this article shall not extend to a simple Applica. power of attorney, to convey lands in the name, and for the benefit, article. of the owner.

§ 135. The term "grantor of a power,” is used in this article, as Terms designating the person by whom a power is created, whether by grantor grant or devise; and the term “grantee of a power," is used as power, designating the person in whom a power is vested, whether by grant "grantee devise or reservation.

11 N. Y.,401.

sell in

;

23 Barb., 498; 99 N.

.

of a power "de. fined.

ARTICLE FOURTH.

OF ALIENATION BY DEED.

Sec. 136. Feoffment with livery of seisin, abolished.

137. Grants in fee or of freeholds, how executed; when to take effect.
138. Delivery essential to grants.
139. Covenants not implied in mortgages ; remedy of mortgagee.
140. No covenants to be implied in conveyances of real estate.
141. Lineal and collateral warranties abolished; liability of heirs, etc.
142. Deeds of bargain and sale, and of lease and release, deemed grants.
143. No greater estate to pass by a conveyance, than such as grantor had.
144. Grants conclusive against certain purchasers.
145. Conveyances of greater estate by tenant for life or for years.
146. Conveyances of lands occupied, when valid without attornment.
147. Grant of lands possessed by claimant under adverse title, void.

148. But mortgages of such lands may be given ; effect thereof.
§ 136. The mode of conveying lands by feoffment with livery of Livery of

seisin. seisin, is abolished.

41 N. Y.,78; 137. Every grant in fee or of a freehold estate, shall be sub- 40 Hun, 458

Grants in scribed and sealed by the person from whom the estate or interest fee or of conveyed is intended to pass, or his lawful agent; if not duly how exe:

, acknowledged, previous to its delivery, according to the provisions cuted; of the third chapter of this act, its execution and delivery shall be take effect. TITLE 2. attested by at least one witness; or if not so attested, it shall not

take effect as against a purchaser or incumbrancer, until so acknowledged.

1 Abb. Ct. App. Dec., 36, 247 ; 3 id., 442; 57 Barb., 247 ; 46 N. Y., 633 ; 48 N. Y., 644; 29 N. Y., 572, 585 ; 13 Ń. Y.,

514 ; 31 Barb., 157 ; 17 Barb., 103 ; 6 Barb., 42; 2 Barb., 618; 2 Wenu., 575;' 6 Park. Cr. R., 686; 2 Sandr. Ch., 633; 2 Redf., 349; 6 Daly, 460; 62 N. Y., 105, 22 Hun, 437 ; 29 Hun, 399; 86 N. Y., 603 ; 24 Hun, 575.

Delivery. § 138. A grant shall take effect, so as to vest the estate or inter6 Barb., 103 ; 11 est intended to be conveyed, only from its delivery; and all the Wend, 249; rules of law now in force in respect to the delivery of deeds, shall 533.6N. apply to grants hereafter to be executed. Abb. Ct.

App. Dec., 247. Covenants

§ 139. No mortgage shall be construed as implying a covenant in mort

for the payment of the sum 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 Lans., 40; payment, shall have been given, the remedies of the mortgagee shall

be confined to the lands mentioned in the mortgage. Pr. R., 371 ; 5 Daly, 40; 5 Hun, 407, 12 Daly, 310; 29 Hun, 634 ; 32 Hun, 485; 35 Hun, 458 ; 95 N. Y., 353, 513.

gages. Remedies of mortgagee. 2 Barb.,

14 How.,

Covenants in convey. ances.

$140. No covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not.

53 N. Y., 398; 43 N. Y., 462; 40 N. Y., 143 ; 9 Bosw., 76 ; 7 Bosw., 507; 13 N. Y., 158 ; 9

N. Y., 512 ; 31 Barb., 551 ; 13 Barb., 284 ; 8 Paige, 598 ; 14 Wend., 39; Cl. Ch.,
503 ; 1 Duer, 427;
1l' Paige, 569 ; 20 Barb., 455 ; 15 Barb.,

359 ; 39 Barb.,

65; 30 Hun, 129 ; 32' Hun, 482 ; 35 Hun, 469; 36 Hun, 181; 39 Hun, 204, 264 ; 97 N. Y., 345.

165.

deeds de

grants.

(739]

§ 141. Lineal and collateral warranties, with all their incidents, are Lineal and abolished; but the heirs and devisees of every person who shall warranties

. have made any covenant or agreement, shall be answerable upon 17 Barb.,

such covenant or agreement, to the extent of the lands descended or devised to them, in the cases and in the manner prescribed by law.

[1 R. L., 525, § 26.] Certain

§ 142. Deeds of bargain and sale, and of lease and release, may clared

continue to be used, and shall be deemed grants; and as such shall

be subject to all the provisions of this chapter, concerning grants. IN. Y.,248; 1 Abb. ct. App. Dec., 247. Effect of § 143. No greater estate or interest shall be construed to pass by

any grant or conveyance, hereafter executed than the grantor him. 3 Hun, 621 ; self possessed at the delivery of the deed, or could then lawfully IN. Y.,248 convey, except that every grant shall be conclusive as against the ST. & 2.78; grantor and his heirs claiming from him by descent. How far $ 144. Every grant shall also be conclusive as against subsequent conclusive

purchasers from such grantor, or from his heirs claiming as such,

except a subsequent purchaser, in good faith and for a valuable con356 69 n. sideration, who shall acquire a superior title by conveyance that shall Hun 458. have been first duly recorded. Convey.

$ 145. A conveyance made by a tenant for life or years of a tenants for greater estate than he possessed or could lawfully convey, shall not

certain convey.

570;

35

Hun, 459.

on pur: chasers. 6 Barb.,

years.

work a forfeiture of his estate, but shall pass to the grantee all the ART. 4. title, estate or interest, which such tenant could lawfully convey.

life or for

1 N. Y.,248; 41 N. Y.,78. § 146. Where any lands or tenements shall be occupied by a Attorn. tenant, a conveyance thereof, or of the rents or profits, or of any tenant other interest therein, by the landlord of such tenant, shall be valid when unwithout any attornment of such tenant to the grantee; but the Liabilities payment of rent to such grantor, by his tenant, before notice of the of tenants grant, shall be binding upon such grantee; and such tenant shall 11 Bradf.,

694; 37 Hun, not be liable to such grantee for any breach of the condition of the 625? demise, until he shall have had notice of such grant.

(1 R. L., 525, § 25.]

§ 147. Every grant of lands shall be absolutely void, if at the Convey: time of the delivery thereof, such lands shall be in the actual pos- land adsession of a person claiming under a title adverse to that of the perselye

possessed. grantor.

39 How. Pr. R., 453; 2 Robt., 494; 5 id., 716; 22 N. Y., 172; 26 Barb., 454; 20 Barb., 439;

17 Barb., 665; 15 Barb., 497; 2 Barb., 157; 4 Hill, 469; 2 Caines, 182; 4 Duer, 454;
21 Wend., 98, 19 Barb., 64; 14 Barb., 441; 13 Barb., 147; 3 Duer, 35; 39 Barb.,
321, 514; 53 N. Y., 286, 292; 46 N. Y., 634; 40 N. Y., 143, 204; 39 N. Y., 306; 53 Barb.
248; 17 Abb. Pr. R., 460; 9 Abb. Pr., N. s., 279; 2 Hun, 460; 6 Bosw., 384; 5 N. Y.
S. C. R. (T. & C.), 70; 53 N. Y. 287; 18 Hun, 226; id., 284; 63 N. Y., 268; 68 N. Y.,
413; 71 N. Y., 189; 79 N. , 94; 73 N. Y., 560; 70 N., 803; 9 Hun, 481; 16 Hun,
189; 79 N. Y., 93; id., 390; 66 How. Pr., 85; 12 Abb. N. C., 113, 120, 19 J. & S., 1;

31 Hun, 293; 34 Hun, 566; 37 Hun, 9, 575, 94N. Y., 229, 309. [1 R. L., 173, § 8.)

$ 148. But every person having a just title to lands, of which Mortgages there shall be an adverse possession, may execute a mortgage on given. such lands; and such mortgage, if duly recorded, shall bind the Effect lands from the time the possession thereof shall be recovered, by the mortgagor or his representatives. And every such mortgage Priority of shall have preference over any judgment or other instrument, sub- 5 N. Y., 847; sequent to the recording thereof; and if there be two or more such 41 Barb., mortgages, they shall severally have preference according to the Abb. Pr.

R., 460; 31 time of recording the same respectively.

Hún, 293.

thereof.

[blocks in formation]

SBC. 1. Of what widows shall be endowed.

2. Widows of aliens, if inhabitants, entitled to dower.
3. Dower in case of exchange of lands.
4. Dower in lands mortgaged before marriage.
5. In lands mortgaged for purchase money.
6. Claim to one-third of surplus proceeds of sale, in such case.
7. Widow of mortgagee not entitled to dower.
8. Dower forfeited by divorce for her misconduct.
9. Settlements by jointure, with her assent, to bar dower.
10. How her assent to jointure to be evidenced.
11. Pecuniary provision in lieu of dower, when to bar it.

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