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. ART. 3. 5 N. Y. 413; 2 Sandf. S. C., 580; 4 Lans., 238; 36 N. Y., 583; 28 Hua, 64; 92 N. Y., 627. When pow recorded. ers to be 4 Hun, 290; 188; 6 T. & § 107. Every power shall be a lien or charge upon the lands which it embraces, as against creditors and purchasers in good faith and without notice, of or from any person having an estate in such lands, 8 Bosw., only from the time the instrument containing the power shall be duly recorded. As against all other persons, the power shall be a lien from the time the instrument in which it is contained, shall take effect. §108. Every power, beneficial or in trust, is irrevocable, unless an authority to revoke it, is granted or reserved in the instrument creating the power. C., 555; 6 ers irrevo- cable. 404;1 Barb., 62; 2 Barb., 58; 23 Barb.,498; 46 N. Y., 577; 65 Barb., 250; 11 Daly, 96. Who to ex ecute 604. women. § 109. A power may be vested in any person capable in law of 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. § 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- 25 N. Y.. out the concurrence of her husband, unless by the terms of the power 307; 12 its execution by her, during marriage, is expressly or impliedly pro- 423; 27 hibited. § 111. No power vested in a married woman, during her infancy, Bradf., can be exercised by her, until she attains her full age. 478; 15 N. N. Y.. Barb., 332; 1 Barb. Ch., 13, 240; 10 Barb., 597. 1 114. Execution ors, etc. § 112. Where a power is vested in several persons, all must unite by surviv in its execution; but if previous to such execution, one or more of 65 Barb., such persons shall die, the power may be executed by the survivor or survivors. 250, 5 N. Y. S. C. Pr., N. S., 296; 11 N. Y., 397; 1 N. Y., 358; 1 Barb. Ch., 569; 2 Paige, 197; 1 Sweeny, 69; 3 Hun, 51. cuted 113. No power can be executed except by some instrument in How exe. 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. [736] 11 N. Y., 398; 65 Barb., 258; 28 Hun, 603. Instru ments § 114. Every instrument, except a will, in execution of a power, and although the power may be a power of revocation only, shall be deemed deemed a conveyance within the meaning, and subject to the provisions, of the third chapter of this act. nes. convey. 12 N. Y.. 404. dispose by § 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 this act. devise. 10 Barb., 597; 41 Barb., 69; 97 N. Y. 556. Id., to dis pose by § 116. Where a power is confined to a disposition by grant, it cannot 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., 4 N. Y., 11; 412; 3 Barb., 128; 97 N. Y., 556. women to edge exe § 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 65 Barb., chapter of this act, in relation to conveyances by married women. [See L. 1879, ch. 249, as amended by L. 1880, ch. 300, post.] 258; 63 Barb., 71; 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 the estate, the power shall not be void, but its execution shall be governed by the rules before prescribed in this article. by grantor. Directions by grantor. § 119. When the grantor shall have directed any formalities to be 28 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 the power. Nominal conditions 49 N. Y., 602. When di rections of be ob § 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 disregarded in the execution of the power. § 121. With the exceptions contained in the preceding sections, grantor to the intentions of the grantor of a power, as to the mode, time and 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 cases hereinafter provided. served. 49 Barb., 133. third per ecution of power. Consent of § 122. When the consent of a third person to the execution of a sons to ex power is requisite, such consent shall be expressed in the instrument by which the power is executed, or shall be certified in writing 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] Certain dispositions, not void. Omission to recite power. Fraud. Power to devise, how exe cuted by terms of will. 25 Barb., 564; 43 Certain es tates to be advancements. § 123. No disposition, by virtue of a power, shall be void in law or in equity, on the ground that it is more extensive than was authorised by the power; but every estate or interest so created, so far as embraced by the terms of the power, shall be valid. § 124. Every instrument executed by the grantee of a power, conveying 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. § 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. § 126. 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. Barb., 91; 92 N. Y., 295, 539. § 127. 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, Bosw., 188. Within the provisions of the second chapter of this act. 61 Barb., 298; 8 Computa tion of term of § 128. The period during which the absolute right of alienation 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 time of the creation of the power. 6 T. & C., 555; 12 N. Y., 404; 3 Duer, 73; 4 Hun, 290; 29 N. Y., 39, 78; 30 Hun, 617; 96 N. Y., 214. § 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 power was granted. ART. 4. who made powers. take under 3 Duer, 95; 16 Wend., 324. women, § 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 au riage, she may by virtue of such power, create any estate, which she thority, might create if unmarried. etc. executions. § 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 N. 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 1a. defective execution of any power, shall be entitled to the same relief NY, in equity, as similar purchasers, claiming under a defective conveyance from an actual owner. sell in § 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, 616; ment or otherwise, shall become entitled to the money so secured to 35 Hun, 581. be paid. 32 Hun, 520; tion of this article. § 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, of the owner. 23 Barb., 498; 99 N. Y., 1, 7. of a § 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. and " of a pow er defined. 11 N. Y.,401. 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. 141. Lineal and collateral warranties abolished; liability of heirs, etc. 145. Conveyances of greater estate by tenant for life or for years. $136. The mode of conveying lands by feoffment with livery seisin, is abolished. of Livery of seisin. 40 Hun, 453. Grants in fee or of § 137. Every grant in fee or of a freehold estate, shall be subscribed and sealed by the person from whom the estate or interest conveyed is intended to pass, or his lawful agent; if not duly freeholds, 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. how exe when to 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. Delivery. 6 Barb., 103; 11 Wend., 249; 5 Wend., 53350 N. Y., 61; 1 Covenants in mortgages. Remedies 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 N. Y., 514; 31 Barb., 157; 17 Barb., 103; 6 Barb., 42; 2 Barb., 618; 2 Wend., 575; 6 Park. Cr. R., 686; 2 Sandf. 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. § 138. A grant shall take effect, so as to vest the estate or interest intended to be conveyed, only from its delivery; and all the rules of law now in force in respect to the delivery of deeds, shall apply to grants hereafter to be executed. App. Dec., 247. § 139. No mortgage shall be construed as implying a covenant 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 La payment, shall have been given, the remedies of the mortgagee shall be confined to the lands mentioned in the mortgage. of mortgagee. 2 Barb., Ch., 569; 2 44 How., Pr. R., 371; 5 Daly, 40; 5 Hun, 407, 12 Daly,310; 29 Hun, 534; 32 Hun, 485; 35 Hun, 458; 95 N. Y., 353, 513. Covenants in convey. ances. [739] collateral § 140. No covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants not. or 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., 542; 31 Barb., 551; 13 Barb., 284; 8 Paige, 598; 14 Wend., 39; Cl. Ch., 503; 1 Duer, 427; 11 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., 348. § 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 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. 17 Barb., 165. Certain [1 R. L., 525, § 26.] § 142. Deeds of bargain and sale, and of lease and release, may continue to be used, and shall be deemed grants; and as such shall grants. be subject to all the provisions of this chapter, concerning grants. deeds declared 1 N. Y.,248; 1 Abb. Ct. App. Dec., 247. certain convey. ances. Effect of § 143. No greater estate or interest shall be construed to pass by any grant or conveyance, hereafter executed than the grantor him3 Hun, 521; 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 41 N. Y78; grantor and his heirs claiming from him by descent. 9 N. Y., 51; 5 T. & C.. 570; How far 35 conclusive on purchasers. Hun, 459. § 144. Every grant shall also be conclusive as against subsequent 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 have been first duly recorded. 6 Barb., Y., 1; 35 Hun, 458. 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 ances by 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 years. 1 N. Y.,248; 41 N. Y.,78. ment by necessary. § 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 tenant. grant, shall be binding upon such grantee; and such tenant shall 14 Bradf., 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.] 4 N. Y., 128; 694; 37 Hun, ance of § 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 versely grantor. 39 How. Pr. R., 453; 2 Robt., 494; 5 id., 716; 22 N. Y., 172; 26 Barb., 454; 20 Barb., 439; [1 R. L., 173, § 8.] possessed. may be thereof. § 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- 5N. Y., 347; sequent to the recording thereof; and if there be two or more such 1 Barb., mortgages, they shall severally have preference according to the time of recording the same respectively. lien. 288; 17 Abb. Pr. R., 460; 31 TITLE III. Of Estates in Dower. SEC. 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. [740] |