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 .
Analogous to powers of appointment, are powers of revocation, which are based on the theory that one making a conveyance of land may create an executory interest in favor of himself as well as in favor of another. By force of such a power reserved in the conveyance the grantor is enabled to put an end to the estate granted, revesting the title in himself.30a Not infrequently, in the English books, the expression "power of revocation" is applied to a power given to one other than the creator of the power, and indeed it is said that "every power operates as a power of revocation and new appointment,"30b but here we will restrict the use of the expression to powers created by the grantor in his own favor.
A power of revocation in favor of the grantor himself is, even by the English authorities, perfectly valid in a conveyance by way either of bargain and sale or covenant to stand seised,30c though it would not have been valid at common law.30d In this country, as in England, a power of revocation is frequently inserted in a voluntary deed of trust30e and that there is no
29. Wigan v. Jones, 10 Barn. & C. 459; Brandies v. Cochran, 112 U. S. 344, 28 L. Ed. 760; Leggett v. Doremus, 25 N. J. Eq. 122.
30. Sugden, Powers, 480. See ante Sec. 221, note 2.
30a. Sugden, Powers, 363; Chance, Powers, ch. 4, Sec. 1; Co. Litt. 237a; Albany's Case, 1 Coke, 110b.
Powers of revocation are expressly recognized by the New
York statute, and statutes of other states modelled thereon. Chaplin, Express Trusts c. 23.
30b. Sugden, Powers, 478; Kent Conn. 315.
30c. Sugden, Powers, 139; Chance, Powers, 66; Sheppard's, Touchstone, 525, 526.
30d. Co. Litt. 237a.
30e. See Nichols v. Emery, 109 Cal. 323, 50 Am. St. Rep. 43, 41 Pac. 1089; Gaither v. Williams, such power in a deed of that character has been regarded as an indication that the deed was obtained by undue influence.30f But such a power is valid in conveyances other than deeds of trust,30g and the reservation of such a power involves no inconsistency with the conveyance. It merely involves, as before remarked, the creation of an executory limitation in favor of the grantor himself.
Occasionally the grantor, instead of reserving in terms a power to defeat or revoke his grant, reserves a power to make a conveyance 30h or mortgage30i to another person, as if he were still the owner. The reservation of such a power is in effect the reservation of a power of revocation, to be exercised in a particular manner. And there seems on principle no reason whatsoever why the grantor should not reserve a power of revocation to be exercised by the making of a devise to another, a power, that is, to dispose of the property by will as if he were still the owner thereof. One can create a testamentary power in favor of another person, and so, it is conceived, he can create such a power in favor of himself.30j
57 Md. 625; Stone v. Hackett, 12 Gray (Mass.) 232; Reidy v. Small, 154 Pa. St. 505, 20 L. R. A. 362, 26 Atl. 602.
30f. Underhill, Trusts, (7th Ed.) Art. 14; 1 Perry, Trusts, Sec. 104, note; Bispham, Equity, (8th Ed.) p. 128; Editorial note 10 Harv. Law Rev. 443.
30g. Jones v. Clifton, 101 U. S. 225; Ricketts v. Louisville, etc., R. Co., 91 Ky. 221, 15 S. W. 182, 11 L. R. A. 422, 34 Am. St. Rep. 176; Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 171; Riggs v. Murray, 2 Johns. Ch. (N. Y.) 565; Stamper v. Venable, 117 Tenn.
557, 97 S. W. 812
30h. Kokomo Trust Co. v. Hil-ler, - Ind. App. -, 116 N. E. 332;.Tollen v. Pocahontas Coal & Coke Co., 67 W. Va. 639, 68 S. E. 373. Compare Durand v. Higgins, 67 Kan. 110, 72 Pac. 567.
30i. Bouton v. Doty, 69 Conn. 531, 37 Atl. 1064.
30j. The decision in Pritchett v. Jackson, 103 Md. 696, 63 Atl. 965, that a reservation in a deed of trust, of a power to dispose of the land by will, was invalid as being inconsistent with the conveyance to the trustee is, it is submitted, erroneous.