This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The only common-law powers, properly so called, which need be mentioned, are those given by will to executors, authorizing them to sell lands for the payment of debts or legacies. Such powers existed at common law where land was by custom devisable,8a and after the passage of the Statute of Wills, making land generally devisable, their validity in wills was established.9
When executors are thus given a power of sale without being given the title to the land, the title vests in the heir or residuary devisee till the sale is made, that is, till the "execution" of the power, and then it passes to the vendee, by force of the will, as if there were an executory devise to him, and not by force of the conveyance by the executors; this case being distinguished from that in which there is a devise of the land itself to the executors, with power in them to alienate it, the title in the latter case vesting in the executors as trustees till the execution of the power, and then passing by their conveyance, and not by the will.10
8. The classification as given is practically that of Mr. Edwards, as stated in his Law of Property in Land (4th Ed.) 167 et seq. This author's admirable outline of the subject of powers has been very considerably utilized in the following pages.
8a. Litt. Sec. 169; Co. Litt. 112b; Edwards Prop. in Land, 167; Gray, Perpetuities, Sec. 124. Mr.
Chance shows that there were probably certain other common-law powers, of an unusual character. See Chance, Powers, Sec.Sec. 5-12.
9. Co. Litt. 112b; Townsend v. Walley, Moore, 341.
10. Litt. 169; Co. Litt. 112b; 181b, 236a; Sugden, Powers (8th Ed.) 111-115; Mitchell v. Spence, 62 Ala. 450; Estep v. Armstrong.
- Powers of agency. Powers of attorney, by which one person is nominated as agent to make a transfer, or to do some other act, in the name and stead of the donor of the power, his principal, are some times referred to as common-law powers. Such powers, however, while recognized at common law, are to be distinguished from powers such as we are now discussing. In the case of a power of attorney to convey land, the title passes by the conveyance made by the attorney or agent named, by reason of the fiction that it is the conveyance of the principal, and the conveyance is effective only by reason of the fact that the principal, the donor of the power, retains the title to the land until the execution of the conveyance. But in the case of the powers which are more particularly the subject of our present discussion, the instrument executed by the donee of the power in the exercise thereof is regarded as the act, not of the donor of the power but of the donee, and that this is the case is sufficiently obvious from the consideration that almost invariably the donor of the power, at the time of cre91 Cal. 659, 27 Pac. 1091; Spru-ance v. Darlington, 7 Del. ch. 111, 30 Atl. 663; Smith v. Mc Connell, 17 111. 135, 63 Am. Dec. 340; Ryan v. Duncan, 88 111. 144; Brumfield v. Drook, 101 Ind. 190; Bradt v. Hodgdon, 94 Me. 559, 4S Atl. 179; Guyer v. Maynard, 6 Gill. & J. (Md.) 420; Greenough v. Wells, 10 Cush. (Mass.) 571; Mandelbaum v. McDonnell, 29 Mich. 78, 18 Am. Rep. 61; Clark v. Hornthal, 47 Miss. 434; Todd v. Wortman, 45 N. J. Eq. 723, 18 Atl. 843; Ashby v. Ashby, 59 N. J. Eq..536, 46 Atl. 528; Greenland v. Waddell, 116 N. Y. 234, 15 Am. St Rep. 400, 22 N. E, 367; Hoyt v. Day, 32 Ohio St. 101; Thompson v. Gaillard, 3 Rich. Law (S. C.) 418; Moore v. Bedford -Tenn. -, 56 S. W. 1038. In the former case the executor has a "naked power," in the latter, a "power complied with an interest." See post, Sec. 317.
In Pennsylvania it is provided by statute that a power of sale in the executors shall give them, in effect, an estate. See Shippers Heirs v. Clapp, 29 Pa. St. 265, and such seems to be assumed to be the law apart from statute in Rathbone v. Hamilton, 4 Dist. Col. App. 475; Griffith v. Stewart, 31 Dist. Col. App. 29.
Ating it, transfers the ownership of the land to a third person or persons, retaining no estate himself, so that were the power sought to be given effect on the theory of agency, it would be absolutely inoperative, since one cannot authorize his agent to dispose of another person's property. Moreover, such powers are ordinarily created by will, and a mere agency cannot be so created.
If a power to alien land is given, by legislative act, an alienation in pursuance thereof derives its effect from the act.11 Such a power may be given to the owner of an interest in land, as in the case of the power given in England by statute to life tenants to make leases extending beyond their lives,12 or the power of sale frequently given by statute to a mortgagee;13 or it may be given to the holder of an office, as in the case of the power of sale given to the trustee under the present bankruptcy law,14 or that given by statute to an executor to sell land for the payment of debts,15 or to a sheriff to sell land under execution.16