Ludlow v. Vah Ness — 21 N.Y. Super. Ct. 178

Majority

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Ludlow, Plaintiff and Appellant, v. Van Ness et at., Defendants and Respondents.

Headnote

1. Where, on a sale of real estate under a judgment foreclosing a mortgage, a deed is executed by the sheriff to D. L. as the purchaser thereof, dated June 29, 1854, (and recorded February 9, 1857,) and D. L. for good consideration, by deed dated July 9, 1859, (recorded October 14, 1859, conveys to J. W., Jr., who, for good consideration, by deed dated July 9, 1859, (recorded November 4, 1859,) conveys to E. H. B., and the plaintiff subsequently agrees to purchase said lands; he cannot maintain a suit to obtain a rescission of his contract'to purchase, by merely showing that the plaintiff in such foreclosure suit was an alien; and that D. L. in a covenant signed by him dated March 4, 1857, (and recorded in that month in the proper hook for recording deeds,) recited the alienage of such plaintiff, his ownership of the mortgage foreclosed, and that the property Was bought in by the alien’s agent in the name of D. L., for the ultimate benefit of the alien, in part payment of the amount due on -such mortgage; and that D, L. by said covenant, covenanted to and with the alien £o allow his agents “to let and demise the lands and to receive the rents thereof” — and “ whenever requested by the alien to convey the property * * to any person * * by him designated ”—and to “ execute deeds of sale by the alien * * and allow him to receive the proceeds * * whenever requested by said alien," &c.; where the only objection made to the title, on the tender of a deed by the vendor to the plaintiff, is that there was no request from the alien to D. L. to make the grant to J. W., Jr., and in other respects the title is admitted to be perfect.

2. Such a covenant is not a conveyance within the recording acts, and the record of it is not constructive notice of its existence, and would not affect the title acquired by J. W-, Jr., or E. H. B., or that tendered to the plaintiff.

3. The stipulations in the covenant on the part of D. L. are executory only, and the rights under it acquired by the alien rest wholly in action. It creates rio interest or estate in the land, nor right of possession. A citizen

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being owner and the fee being in him, and having the right of conversion without the consent of the alien, there can be no forfeiture by reason of such interest in the alien as the covenant creates and declares.

4. A grant by D. L. to a purchaser for value, would vest in him a good title unaffected by the covenant, even though he bought with knowledge of it. (Hoffman, J.)

(Before Bosworth, Oh. J., and Hoffman and Robertson, J. J.)

Heard, December 7, 1860;

decided, April 27, 1861.

Appeal by the plaintiff from a judgment against him, entered July 14th, 1860, on the report of Philo T. Buggies, Esq., as referee.

The action is brought by Edward H. Ludlow, plaintiff, against William W. Van Ness, Anthony J. Bleecker, James Bleecker, Robert H. Sherwood and William S. Mayo, as defendants, to obtain a judgment rescinding a contract made by the plaintiff November 22, 1859, to purchase the real estate in question, (the purchase being made at an auction sale conducted by the defendants other than Van Ness, who were auctioneers, and composed the firm of A. J. Bleecker, Son & Co.,) and also ordering a return of ten per cent of the purchase money paid by the plaintiff to said auctioneers at the time of the auction sale.

The terms of the auction sale were as follows, viz.:

“ Ten per cent of the purchase money, together with an auctioneer’s fee of ten dollars to be paid at the time and place of sale, and the remaining ninety per cent on the 15th day of December, 1859, for which a good and perfect title is to be given by W. W. Van Ness or others.”

The defendant Van Ness, authorized the sale in the form and manner mentioned, and the other defendants acted as his agents.

The substantial question raised by the appeal is this— was the plaintiff tendered a good and perfect title ?

The premises in question (being at -the corner of Fifth Avenue and 112th street, New York city) are part of premises covered by a mortgage executed by Smith T. Weyant, the owner thereof, which mortgage was foreclosed in the Supreme Court at the suit of James Watt, Jr., an alien, and the premises were ordered by a judgment

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entered in that suit, April 10, 1854, to be sold by the Sheriff of the city and county of Hew York, to satisfy the moneys due on said mortgage, the said Watt being the owner thereof.

Daniel Lord bought the premises at the Sheriff’s sale for $8,400, and received the Sheriff’s deed June 29, 1854, which was acknowledged the same day, and recorded February 9, 1857.

Mr. Lord and wife, by a deed dated July 9, 1859, (and recorded October 14,1859,) conveyed the premises to John Ward, Jr., who, by a deed of the same date, (recorded Hovember 4, 1859,) conveyed the same to Robert H. Bleakie.

Mr. Lord, on the 4th of March, 1857, executed a written and sealed instrument of that date to said James Watt, Jr., (recorded March, 1857, in the book for the recording ■of deeds), which recites that said Watt owned the mortgage, the foreclosure of it, and that “the said property was bought in by the agent of the said James Watt, in the name of the said Daniel Lord, for the ultimate benefit •of the said James Watt, in part payment of the amount due on said mortgage,” &e. By it, Mr. Lord “doth, for himself, his heirs and assigns, covenant to and with the .said James Watt, his executors, administrators, as follows :

“ That the said Daniel Lord will allow the agents, from time to time, of the said James Watt, his heirs, executors, administrators and assigns, to let and demise the said lands, and to receive the rents thereof, keeping him harmless. That the said Daniel Lord will, whenever requested by the said James Watt, his executors, administrators, convey the said premises, or any portion thereof, to any person or persons by him or them designated. And that, whenever requested by the said James Watt, his heirs, executors, administrators or assigns, he will execute deeds of sale by the agents or representatives of him, the said James Watt, his heirs, executors, administrators or assigns, and allow them to receive the proceeds thereof, he being therein

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indemnified, in which deeds his wife shall unite to bar her dower, the said James Watt, his heirs and assigns, bearing the expenses thereof.”

On the 15th of December, 1859, Van Hess tendered to the plaintiff a deed of the premises, duly acknowledged, and in proper form executed by said Bobert H. Bleakie and wife. The plaintiff expressed himself satisfied with the deed and title, with one exception only, viz., “that there was no request from James Watt, Jr., to Daniel Lord to make conveyance; and this was the only objection made to the title.”

The plaintiff thereupon tendered to Van Hess the balance of the purchase money, and “demanded a deed conveying a good title to the lot,” and subsequently demanded of the other defendants, the ten per cent which they then held.

The referee held, as conclusions of law, that the deed from the sheriff to Mr. Lord vested in the latter an estate in fee simple, and that the deeds to John Ward, Jr., and to Bobert H. Bleakie, successively, a like estate; that no cause was proved against either defendant, and that the complaint should be dismissed.

By stipulation, the defendant Van Hess admitted that James Watt, Jr., by an instrument dated December 26, 1859, executed by him by Thomas Watt, his attorney in fact, requested Mr. Lord to execute deed of sale, &c. The power of attorney to Thomas Watt, is dated Hovember 18, 1856. The fact thus admitted by stipulation is not mentioned in the referee’s findings of fact, and the others above, mentioned are, as is the further fact that Bobert Bleakie had an unincumbered estate, in fee. Van Hess, by stipulation, further admitted, “that the title to said lands shall be deemed good and perfect, down to the conveyance from John Orser, sheriff, &c., to Daniel Lord, dated 29th of June, 1854.”

Judgment having been entered on the report, the plaintiff appealed from it to the General Term.

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Charles E. Whitehead and Wm. Curtis Noyes, for appellant.

I. The title proposed to be made in this case was not good, and the purchaser was entitled to receive back his deposit and interest.

1. James Watt did become the purchaser at the sheriff’s sale, and the sheriff’s deed was given to Mr. Lord for his benefit only, and no valid trust being declared in it, or in any instrument executed contemporaneously with it, an apparent legal title vested in Mr. Lord, under the Revised Statutes, subject to be defeated by creditors. (1 R. S., 730, § 64.)

2. By the grant or declaration of uses executed by Mr. Lord, on the 4th of November, 1857, an absolute title to the premises vested in James Watt, the same as if a conveyance had been made directly to him by Mr. Lord because™—

The grant or declaration of uses, specifically gives James Watt, the beneficiary, the exclusive possession of the premises, by allowing his agents “to let and demise the lands, and to receive the rents thereof;” of course the agents would do this for him, or he could do it himself.

And Mr. Lord further agrees to convey the premises, or any portion thereof, to any person or persons by him or his executors or administrators designated, and that whenever requested by them, he will execute deeds, and allow them to receive the proceeds thereof.

Thus Watt is, by this grant or declaration of uses, “entitled to the actual possession of the lands, and to the receipt of the rents and profits,” and is declared to be the exclusive beneficial owner, and no lawful trust, nor any active trust of any sort, being declared in Mr. Lord, Watt is in law deemed to have a legal estate therein of the same quality and duration, and subject to the same condition as his beneficial interest, and that is an absolute estate in fee simple. (1 R. S., 727, §§ 47-49, 58, 59 ; Wright v. Douglass, 3 Seld., 564, per Ruggles, J., 568-570, 574 ; Ring v, McCoun, 6 Seld., 268, per Gardiner, J., 271.)

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Under the former statute of uses, the legal estate would have been transferred to the use and vested in Watt. (Preston on Est., 145, 149 ; Watkins on Conv., 197.)

Mr. Lord’s conveyance, therefore, to John Ward, conveyed no title to him, and the title proposed to be given to the appellant on the purchase, was through that deed only, and included no deed from Watt, in whom the legal title was. The appellant, if he had accepted it, would have acquired no title at all, not even one of a questionable character.

Besides, if Watt himself had conveyed, the title derived through him would have been subject to be disturbed for his alienage; as the prerogative right of forfeiture is not barred by alienation, and it must be taken subject to the right of the government to seize the land. (2 Kent, 61.)

Especially is this the rule, as no one could claim as a bona fide purchaser; the grant or declaration of uses having been recorded March 27th, 1857.

II. Even if the legal title remained in Mr. Lord, still it was to evade the right of the State as to Watt’s alienage, and was charged with a trust for Watt, of which the record of the declaration of the uses would be notice to subsequent purchasers, and they would take subject to the trust as well as to the claim of the State, thus rendering the title doubtful and hazardous. (Anstice v. Brown, 6 Paige, 448 ; Du Hourmelin v. Sheldon, 1 Beav., 79 ; Hubbard v. Goodwin, 3 Leigh, 514 .)

B. T. Kissam, for respondent Van Ness.

I. The exceptions of plaintiff to the Referee’s report, raise only two important questions in this action:

1st. Did the several conveyances from Lord to Ward and from Ward to Bleakie vest in the latter a good and sufficient title to the lot in question?

-2d. Is the title conveyed to Bleakie affected in any manner by the covenant of Daniel Lord?

This covenant was executed and recorded nearly three years after the delivery of the deed from Orser to Lord, but before the delivery of the deed from Lord to Ward.

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Mr. Watt being an alien, could have taken title to the land by a conveyance made directly to himself, but in no other way. (2 Kent’s Com., marg. p. 53.) The covenant does not possess the form or requisites of any of the conveyances specified in the Revised Statutes, (1 R. S., pp. 738, 739, 1st ed.,) and, therefore, does not pass the title in the land to Mr. Watt. Mr. Watt cannot have taken the title by operation of law; therefore, construction, aided by the statutes, cannot have vested the title to the land in Mr. Watt, or have given him any interest in it. (2 Kent’s Com., marg. pp. 53, 62.) Courts of justice must carry into effect the intention of the parties. (Lalor on Real Estate, pp. 305, 306.) Mr. Lord’s intention was simply to obligate himself to convert the land into money or personalty and apply the proceeds to the liquidation of Mr. Watt’s original mortgage claim. (Meakens v. Cromwell, 1 Seld., 136 ; Anstice v. Brown, 6 Paige, 448.)

II. There was only one objection made to the title on the 15th December, 1859, (the day fixed for closing the sale,) viz.: “That there was no request from James Watt, Jr., to Daniel Lord, to make conveyance.’’ This was a waiver on plaintiff’s part of all other objections, and if the one made is insuflicient, he is not entitled to a rescission of his contract. (1 Hilliard on Vendors, p. 211, § 7 ; id., p. 223, § 36 ; 2 id., p. 69 ; More v. Smedburgh, 8 Paige, 605 ; Walker v. Wainwright, 16 B. S. C. R., 486 ; Reed v. Trustees of Lockport, 3 Comst., 197 ; Embury v. Connor, id., 511.)

There was no necessity for a request. Mr. Lord had the right to convey without it. The object and whole intent and effect of the covenant was to enable Mr. Watt to expedite a conversion of the land into money, and get the proceeds. The judgment should be affirmed, with costs.

John Sherwood, for A. J. Bleecker, Son & Co.

I. The covenant of Mr. Lord was not entitled to be recorded. It was neither a conveyance, power, nor declaration.

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II. The title was absolute in Mr. Lord, and no action of ejectment by the State would lie for the possession of the land. In case it be said that the conveyance to him was an evasion of the laws relative to escheat, the remedy of the State would be a proceeding in equity against him to recover the proceeds of the land.

III. At most this was a common method of securing a debt to a mortgagee. The fact that the mortgagee was an alien does not deprive him of security for his debt; nor of any remedy or protection such as the common one of purchasing in the property through an agent.

1. A creditor secured by an assignment for the benefit of creditors, does not lose his right because he is an alien.

2. The idea that in such cases, the State might claim an escheat would be opposed entirely to public policy. As in cases of mortgages by corporation to secure bonds held by aliens, is it possible that the agent of the bondholders cannot purchase the estate on a foreclosure sale?

IV. At most the instrument creates a charge in the nature of a mortgage. The title was good in Bleakie and judgment should be affirmed, with costs.

The objections to the title arose wholly from the instrument of March, 1857, executed by Mr. Lord, coupled with the alienage of Mr. Watt, and they all hinge upon the right acquired by the latter under it.

The extent of the right acquired by Watt in or over the premises in question by such instrument may be narrowed by ascertaining what it does not confer. It does not profess to give, by itself, any right to the possession of the land, or any interest therein, to any one, without the execution of some other instrument by the covenantor; indeed there are no words of present grant in it. Not only is no present right conferred by it on any one, but it does not purport to create any interest, estate or trust in, or power or authority over the land, in any person, or even to give any one the power of creating such estate, interest or trust. Its language is entirely future and executory; it does not

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make any use of the previously recited purchase for the benefit of Watt as the basis of any equitable estate or interest, but contains only covenants to convey to his appointees. Such covenants contained in it do not run with the land; they affect neither the title to it nor' the mode of using it or its appurtenances; nor do they subject any other land to the use of the owner of the premises in question. In fine, the covenants composing the entire instrument are only executory stipulations, the remedy for whose breach is an action for damages, or their enforcement, if capable of specific performance. The rights of Watt or his assignees are, therefore, wholly in action, not in possession. It is not a covenant to stand seised, for want of the proper considerations of blood or marriage; and it is no form of grant or conveyance recognized or created by any statute.

Although the covenantor, by such instrument, covenanted to allow Watt and his agent to demise the land and receive its rents, and to dispose of it and receive the proceeds of such disposition, it did not confer any right of possession without the execution of some other instrument, even if it passed the right to the rents, in case any demise was made that gave no such right of possession. Neither Watt nor any grantor of his could have legally entered on such land without the permission of the covenantor, or brought an, action of trespass against him for ejecting them, or against strangers for trespassing on it. Watt or bis appointees were not entitled, by the execution of such instrument, to such possession of the land, or the receipt of the rents and profits, as to make his or their right or interest a legal estate within the meaning of the statute. (1 R. S., 727, 5th ed., §§ 47, 48, 49.) Nor was there such a grant of an absolute right of disposition by it, to Watt, as to take the title out of the covenantor and vest it in the latter; it required another instrument to do so. (1 R. S., 733, 5th ed., § 103.) Appointees of Watt had no other remedy to obtain a title or possession of the land, if refused by the covenantor, except to commence an action to compel him to

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convey the land to them as equitable assignees of Watt. If they had, that, such a right is only a chose in action, not an interest in the land. Mo purchaser from Mr. Lord, with full notice of such a claim, could be affected by it, until the commencement of such action and filing notice of its pendency.

If this be the correct view of the instrument in question, the objection of alienage also falls to the ground; not that I am disposed to consider the conveyance to Lord a mere mortgage, because he bought the property for the benefit of Watt, who, under the covenant in the instrument of March, 1857, was entitled to the proceeds of the sales of all the laud, whether they exceeded or fell short of the debts originally due to him ; and there was no equity of redemption left in any one after he had received the amount of such debt, certainly not in the original mortgagor. Still there was no such interest of Watt in the land as could be forfeited; and if any interpretation could save it from that fate, that must be given to the instrument of 1857.

Forfeiture for alienism retains its feudal character. As long as there is a native owner of the land there can be no forfeiture for the alienism of any one who has right only by contract. Tips principle pervades modern decisions, so that if an alien has no interest in, or control over the soil itself, but only a right to its proceeds whenever it passes by sale to the hands of another citizen or subject, while the right of conversion without the consent of the alien continually exists, neither the fee of the land nor any less estate can be made the subject of escheat by reason of such alienage. (Du Hourmelin v. Sheldon, 1 Beav., 79 ; S. C., on appeal, 4 Myl. & Cr., 525.) Land, over which an alien has no other control except to compel its lease or conversion into personal estate, so far as regards forfeiture for such alienage, is looked upon as already converted into personalty, whether such right arises from conveyance, (Anstice v. Brown, 6 Paige, 448,) or devise, (Meakings v. Cromwell, 1 Seld., 136.)

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So, too, if the instrument be such as I have considered it to be, its mere record Avas not notice to any one; (1 R. S., 762, §§ 70, 71 ;) it might have been so, if it were the grant of a power over the land, (1 R. S., 735, § 127,) but it is not even that, and is not in any manner an instrument affecting the title to land, as that language is used in the statute. A glance at the purpose of the recording acts and. the provisions contained in them for carrying it out will readily show this. It is not every document in writing which may have some effect in establishing or overthrowing a title to land, which can be recorded. The written admission of a fact by a party claiming an interest in lands may materially impair Ms right or title, but even if it were under seal, its record would be no notice to purchasers. (Jackson v. Richards, 6 Cow., 617 .) It is only the record of an instrument which directly operates on the land itself, and thus affects the title to it, which is notice of the interest, power, trust or estate thereby created. Still less than any other admission would one of facts merely evidence, or tending to create evidence, of the existence of an instrument material to a title, be notice of the existence of such instrument. The record must contain all the knoAvledge Avith which a purchaser is chargeable: his information is not to be derived partly from the record, partly from inquiries outside. Where the law gives the privilege of notifying the world by a copy of an instrument, it must be an exact copy. It is upon these principles that separate records are provided for mortgages, (which are mere liens, capable of being discharged,) executory contracts of sale and powers of attorney, because they do not affect the title to land, although they are the means by which it may be affected. The right, therefore, of which a record is notice is only such as is conferred by the recorded instrument, and is to be determined by its face alone, not by extrinsic evidence, and is not to be a mere claim. Executory contracts and powers of attorney are recorded separately, because they confer no rights in the land; the former are even subject to all equitable defenses which may prevent the enforcement of

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the obligation contained in them, although arising from facts not apparent on their face; and, the party in whose favor they are made having a right to elect to sue to recover damages for non-performance instead of demanding a specific performance, the title to the land consequently may never be affected by them. The object of the statute was not to embarrass the vendibility of land, by allowing a cloud upon the title to land, which might never become an interest in it, although a mere chose in action, to appear upon record, but simply to preserve evidence of the interest of a person in land, although he might be out of possession. A person having an executory contract for the sale or conveyance of land may convert his right under it into an interest in the land, by commencing an action for specific performance and filing a notice of the pendency of it: it becomes then an inchoate right, the completion of which by the final decree relates back to such inception. As there was no definition or settlement of Watt’s interest under the instrument of March, 1857, except by the record of that instrument, the plaintiff would have had his title discharged of any notice by Watt of his interest.

I think, therefore, the rights of Watt, under the instrument of March, 1857, were not such as to subject the title derived from Mr. Lord, to any claim from appointees of the former, or the State, by reason of his alienage; and that the record of that instrument was no notice of such rights. The title proposed was, therefore, unobjectionable, so far as any objection was raised thereto.

The judgment, therefore, must be affirmed, with costs.

I shall first consider this case upon the assumption that the covenant of the 4th of March, 1857, was executed by Mr. Lord contemporaneously with the deed from the sheriff to him, viz., the 29th of June, 1854; that Mr. Lord did not pay the consideration money to the sheriff in point of fact, some arrangement by receipts having been made; and that the record of the instrument of the 4th of March, 1857, treated as made on the 29th of

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June, 1854, was an instrument to be recorded—was recorded—and thus became equivalent to notice from the date of the record.

Then I find that James Watt, Jr., the alien, had been the holder of certain bonds and mortgages upon lands in Hew York; that a foreclosure of such mortgages had taken place; that the property was bought in by the agent of Watt, in the name of Daniel Lord, for the ultimate benefit of Watt, in part payment of the amounts due upon such bonds and mortgages; and that deeds had been executed in pursuance of such arrangement, and for such purposes, by the sheriff to said Lord. The lands were taken in order to realize for Watt, the amounts due on the bonds and mortgages which affected the lands.

Then the instrument, to fulfill these objects and carry out these intentions, provides: That the agents of Watt, his heirs, &c., shall be allowed to let and demise the land, and receive the rents thereof, keeping the said Lord harmless; that the latter will convey the lands “whenever requested by Watt, his executors or administrators, to any person or persons by him or them designated;” that, when requested by Watt, his heirs, &c., he will execute deeds, (for sales made,) by the agents or representatives of Watt, his heirs, &c., and allow them to receive the proceeds thereof.

By the 2d section of title 5, chap. 1, part 2 of the Revised Statutes, (1 R. S., 948,) in the construction of every instrument creating or conveying, or authorizing the creation or conveyance of any estate or interest in lands, it shall be the duty of courts of justice to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is consistent with the rules of law.

With the intention of this instrument to benefit Watt by getting payment of the amounts due on the mortgages, held steadily in view, we are to examine these various provisions.

A naked authority to the agents of Watt to let the

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lands, and receive the rents, limited to what is necessary for the purpose designed, is not equivalent to vesting in Watt a title to the actual possession of the lands, as well as to an indefinite receipt of rents and profits. (1 R. S., 727, §§ 47-49.)

A mere, and probably revocable power to a class of persons, to let the property and take the rents, falls much short of the case made by these sections.

There is next the delegation of a power to Watt, to designate a person or persons to whom Lord shall convey the land. This clause is the most difficult of all the clauses to make consistent with the general scope and intent of the instrument, as I have suggested it to be. But I am of opinion that it can be justly read to mean only this: That to carry out the general purposes, if circumstances occurred which rendered a change of the grantee advisable, Watt should have the power to do so; and the substituted person or persons should stand precisely in Mr. Lord’s place.

The last clause is, in substance, that Watt’s agents or representatives may make sales of the land, and Lord will execute deeds to the proposed purchasers, and will account for the proceeds, or allow such agents to receive them. Thus' I interpret this provision. This appears to be of itself, nothing but an agreement to sell the lands, through a class of agents, and account for the proceeds, but to throw light upon and aid in the construction of the other clauses.

Thus the case is brought, in my judgment, within the principle of Anstice v. Brown, (6 Paige, 448 ;) of Craig v. Leslie, ( 3 Wheat., 563 ;) and Meakings v. Cromwell, (1 Seld., 136,) Watt was to take the rents, and the proceeds of sales of lands, in and towards the discharge of the amounts due on the bonds and mortgages, which he originally held as security for a debt due to him.

Du Hourmelin v. Sheldon, (4 Milne & Craig, 525,) is a very pertinent and very instructive case irpon this subject.

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There is another view of the ease. Suppose the Sheriff’s deed had been to Mr. Lord to hold the premises upon the trusts therein after expressed, and then the provisions of the instrument had severally been prefaced by a statement, “upon trust” and “upon further trust”—What would have been the legal operation?

Eor reasons before noticed, I do not think that the 47th and 49th sections of the statute affect the case. The 51st and 52d sections are inapplicable, because the 53d, I apprehend, applies; but chiefly because, where there is an express declaration of the trusts or conditions on which the land is held, there can be no implied or resulting trust. (6 Paige, 448.) If the 55th section can apply to the case, if it could be thought that it is a trust to sell land for the benefit of creditors, or to satisfy a charge, there would be an end of all difficulty. But I assume, and, probably, it is the true conclusion, that it cannot be thus considered. The 56th and 57th sections do not apply.

Thus then the estate had not become vested in Watt; there was no resulting trust in him. There was no express valid trust within the section allowing such. The legal estate thus far stood unaffected. Nor can I conceive that there was a power in trust in Mr. Lord under section 58. If this conclusion is correct, then in whom did the lands remain subject to the execution of the trust as a power under section 59? It could be nowhere but in the original piortgagors. But he did not grant the power. (§ 74.) Neither Watt nor the sheriff ever had the title.

But is it a mere power in Mr. Lord? Powers are abolished, except as created-, construed and executed under the provisions of article III. (1 R. S., 732.) A power can only exist, can only come from an owner of land, granting or reserving the power to do something which he himself could lawfully perform. It is an act in relation to lands. (§§ 73-75.) No one made Mr. Lord the grantee of a power. No one capable of attaining some interest in the land, created a power in him.

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Uses and trusts, except as authorized by the Revised Statutes, being abolished (§ 45,) and powers existing only under the provisions of those statutes; and there being here no trust, no trust power, and no mere power placed or vested in Mr. Lord, the title, to the land remained unaffected by the instrument of March, 1857, either at law or in equity. It becomes a mere covenant which Watt might have enforced, or obtained damages for its violation. It is an instance of the difference between an equitable interest and an equitable or a legal estate, frequently pointed out by Mr. Locklin. (Analogy between Equitable and Legal Estates, passim.) The conveyance by Mr. Lord to a l)ona fide purchaser, even with full knowledge of the instrument, would transfer a good title, and supersede the covenant in favor of Watt, or any act under it.

But if his request ought to be made, then it appears from the stipulation of counsel, that it was made on the 26th of December; after the day of performance, it is true, viz., the 15th, but before action brought. This would be enough, if properly made before suit brought. It would be enough at the hearing, whatever might be the effect on the question of costs. But my view is, :that the instrument created only an obligation to do the act, and did not prescribe the request as a condition precedent to the validity of a sale or conveyance.

There is another and interesting aspect of this case. Adopting the views that the absolute legal title was in Mr. Lord, unaffected by a legal trust, and that there was no limitation of any legal or equitable estate .in Watt, was there not a power granted by Lord to Watt, by force of the instrument of March, and what was the extent and effect of such .power ?

Here again we are to 'be guided by the statute. It is apparent that there is nothing in the paper which authorizes any alienation by Watt. There is no authority to him to alien, in fee or otherwise, by means of a conveyance, will or charge. Ho absolute power of disposition is given to him. (§§ 76-78, 81-83.) The purchase and conveyance

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must be derived Bom Mr. Lord. There is no power within any provision of the statute which gives Watt an estate, or of itself binds or affects the estate. He has merely a covenant which enables him, to some extent, to control Mr. Lord’s acts and transfers of the property—when to sell and convey.

My brother Bobertsor has, I think, fully shown that the instrument signed by Mr. Lord was not within the recording act. (2 R. S., 762, § 39.) There is also no evidence of actual notice of its existence, either in Ward, the grantee of Lord, or in Bleakie, the grantee of Ward. If the purchaserwas in possession, and defending his title, the ignorance of his grantor would be a sufficient defense, but it seems to me that even then, knowledge should have been a fact to which evidence should have been given in the cause. But the plaintiff here is in this situation, that without anything in the pleadings, or in the case, to call for evidence to such a matter, and seeking to prevent the title being forced upon him, be is to depend upon the want of notice in a party, when it may hereafter be clearly established. I am not satisfied that his protection is clear on this ground. Bor reasons before stated the judgment must be affirmed.

Affirmance ordered; in which Bosworth, Ch. J., concurred.