352


Lee. LXIl.]  OP  REAL  PROPEKTr. *  338

the  same  maaner  as  if  it  had  been  created  by  the  deed  which
raised  the  power. The  party  who  takes  ander  the  exeoution  of
the  power,  takes  under  the  authority,  and  under  the  grantor  of
the  power,  whether  it  applies  to  real  or  personal  property,  in  like
manner  as  if  the  power,  and  the  instrument  executing  the  power,
had  been  incorporated  in  one  instrument  (a). The  principle  that
the  appointee  takes  under  the  original  deed,  was  carried  to
the  utmost  extent  *  in  Roach  v. Wadham  (6),  a  case  which  [  *  388  ]
strikingly  illustrates  the  whole  of  this  doctrine,  and  the
singularly  subtle  and  artificial  mechanism  of  the  English  settle-
ment law. An  estate  was  conveyed  to  a  trustee  in  fee  to  such
uses  as  A. should  by  deed  appoint,  and  in  default  of  appointment
to  A. in  fee. There  was  a  fee-farm  rent  reserved  in  the  convey-
ance to  the  trustee,  and  A. covenanted  to  pay  it. It  was  held,
that  A. took  a  vested  fee,  liable  to  be  devested  by  the  execution
of  his  power  of  appointment. Be  sold  and  conveyed  the  estate
by  lease  and  release,  and,  also,  in  the  same  conveyance,  directed
and  appointed  the  estate  and  use  to  the  purchaser. It  was  further
held,that  under  this  conveyance  with  a  double  aspect,  the  purchaser
took  the  estate  by  the  appointment  of  A. and  not  by  the  conveyance
from  A.;  and  consequently,  the  purchaser  was  not  subject  to  the
covenant  for  the  payment  of  rent,  though  it  run  with  the  land;  for
he  took  as  if  the  original  conveyance  had  been  made  to  himself,
instead  of  being  made  to  the  trustee  to  uses. The  rule  that  the  estate,
under  the  power,  takes  effect  under  the  deed  creating  the  power,  ap-
plies only  to  certain  purposes,  and  as  between  the  parties ;  and  it  will
not  be  permitted  to  impair  the  intervening  rights  of  strangers  to
the  power. The  deed  under  the  power  must  be  recorded,  when
deeds  in  general  are  required  to  be  recorded,  equally  with  any
other  deed  (c). It  does  not  take  effect,  by  relation,  from  the  date
of  the  power,  so  as  to  interfere  with  intervening  rights  (d). The
ancient  doctrine  was,  that  a  naked  power  could  not  be  barred  or
extinguished  by  desseisin,  fine,  or  feoffment   (e). It  was  held,

(a)  LiU. 