The Chancellor.
The facts of this case lie in a Marrow compass.
Alexander Kidd, a soldier, was entitled to lot No. 40 in Ulysses, and a patent for the lot issued to him on the 8th of July, 1790. By the act of the legislature of the 6th of April, 1790, (sess. 13. ch. 59. s. 5.) the land was to he deemed vested in every such grantee from the 27th of March, 1783, and all Ms intermediate sales and dispositions thereof, were to be deemed equally good and effectual as if the letters patent had actually issued on that day. Kidd, by deed of 12th of January, 1788, sold all his interest, as a soldier, in the military bounty lands, to Isaac Bogart, for the consideration of nine pounds. The deed contained no words of inheritance,and it, therefore, conveyed only a life estate in the lands to Bogart; but it empowered two other persons named in the deed, or either of them, to convey the land in fee to Bogart„ in case the same should afterwards be deemed necessary.
It is very probable, that Kidd intended, by that deed, to sell to Bogart all his interest in the military bounty lands \ and the power contained in the deed to execute a subsequent conveyance in fee, was to provide for th e consummation of the title as soon as the patent should issue. The patent did, afterwards, issue to Kidd, and he became seised in fee of the lot in question, except so far as he had, in the intermediate time, parted with his legal title to Bogart. He had only parted with a life estate, but with authority to his attorney to release the fee, which that attorney omitted to do, until long after Kidd had sold to Cobb his reversionary interest in the lot. The deed from Kidd to Cobb, was made on the 25th of February, 1792, and it conveyed, for the consideration of ten pounds, all his interest in the military bounty lands ; and to this deed was annexed Ms discharge as a soldier from the American army in 1783.
The deed to Bogart of the life estate, with a power to convey the fee, was deposited in the clerk’s office in Albany, in April, 1794, and the subsequent deed to Cobb, conveying the reversion in fee, was deposited in the same office in March, 1795. Both deeds were deposited in season f and both stood upon an equal footing, so far as the deposit was concerned, for the law made no distinction as to the-[548]*548time of the deposits, if made before the first of May, 1795. The deed to Cobb was duly recorded in Cayuga county, in June, 1813, and the deed to Bogart not before May, 1818.
Here, then, we have two distinct deductions of titles; the deed tQ p>0garf^ unfier which Henderson, the lessor of the plaintiff, claims, and the deed to Cobb, under which Davenport, the defendant, claims; and the question is, whether the reversionary interest in the land, which resided in Kidd, subject to the life estate in Bogart, was legally conveyed to Cobb, so as to enable him to hold, in opposition to the subsequent execution of the power contained in the deed to Bogart.
When Cobb purchased of the soldier, in 1792, he purchased bona fide, for a valuable consideration, without any notice of the prior deed to Bogart; and if Kidd, the soldier, had any legal estate remaining in himself, .which could be conveyed by him, it must have passed to Cobb. I cannot perceive any room for doubt upon this point. Bogart had only a life estate, owing to the imperfection of his deed, and that deed, imperfect as it was, would have been sufficient in equity, as against Kidd, or as against any person purchasing from him with notice of it. But Cobb had not any notice of that deed •, and if Kidd had a legal capacity to convey his reversion, it must have legally vested in Cobb ; and it appears to me, it could riot have been legally devested by any of the subsequent events.
Admitting that Kidd's power of attorney, to release his interest to Bogart, could not lawfully be revoked, yet the release was not, in fact, executed, and the reversion in fee did, in judgment of law, reside in Kidd, when he conveyed it to Cobb, in 1792. It was a breach of trust, or of good faith in Kidd; but Cobb ought not to be affected by it, for he was a stranger to the deed to Bogart, and to its contents. The power of attorney was not a legal lien or incumbrance upon the land, affecting a stranger who dealt with Kidd, Without notice of it. The most that can be said is, that Kidd held the reversion, subject to the power, or as trustee for Bogart. But Cobb did not know that Kidd had incapacitated himself, in a moral and equitable view, from conveying the reversion to him, or that he had already authorized an attorney to convey it to Bogart. Though a tras[549]*549tee conveys away the trust subject, in breach of his trust, yet if he had the legal title, and the person who took it from him, for a valuable consideration, had no notice of the trust, he will hold the land discharged of the trust. It appears to me impossible to maintain, that Kidd had no legal capacity to convey his reversionary interest. Whoevér has the legal title can convey it, if he be under no legal disability. If he holds the land in trust, or if lie be under a contract to convey, or has given a power of attorney to a third person to convey, all these may be obligations resting upon his conscience, and disabling him in equity to convey; but still, if he does convey, and to a person who has no knowledge, and. is not chargeable with any knowledge of these equitable impediments, and who pays a valuable consideration, the purchaser will hold, and the party injured must look to him who has broken his trust, or violated Ms duty.
The events subsequent to the conveyance to Cobb, are these : Bogart sold to Fowler, in 1791, and Fowler to Henderson, the plaintiff in error, in 1792 5 neither of those deeds were recorded until 1818 ; and in that year, Bogart died, and his life estate terminated. There was no release under the power of attorney contained in the deed to Bogart¡ until 1802, which was tea years after Kidd had anticipated the execution of that power by conveying the same reversionary interest to Cobb. This release or execution of the power, in 1802, was never recorded, and when Cobb sold and conveyed to the defendant, Davenport, in 1815, for 1000 dollars, (and which deed was immediately recorded,) the defendant had no knowledge of the release to Bogart. If he knew of the power, he had no reason to presume that it could ever be executed, considering that 27 years had elapsed between the time of the original purchase by Bogart, and the purchase by the defendant from Cobb, and that 25 years had elapsed since the issuing of the patent, when, according to the language of the deed to So= gart, the power was intended to be executed. Davenport, the purchaser from Cobb, had good reason to presume, that if any execution of the power existed, it would have appeared upon record, for the statute required all deeds, affecting In law or equity the military lands; to be recorded. But [550]
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The Chancellor.
The facts of this case lie in a Marrow compass.
Alexander Kidd, a soldier, was entitled to lot No. 40 in Ulysses, and a patent for the lot issued to him on the 8th of July, 1790. By the act of the legislature of the 6th of April, 1790, (sess. 13. ch. 59. s. 5.) the land was to he deemed vested in every such grantee from the 27th of March, 1783, and all Ms intermediate sales and dispositions thereof, were to be deemed equally good and effectual as if the letters patent had actually issued on that day. Kidd, by deed of 12th of January, 1788, sold all his interest, as a soldier, in the military bounty lands, to Isaac Bogart, for the consideration of nine pounds. The deed contained no words of inheritance,and it, therefore, conveyed only a life estate in the lands to Bogart; but it empowered two other persons named in the deed, or either of them, to convey the land in fee to Bogart„ in case the same should afterwards be deemed necessary.
It is very probable, that Kidd intended, by that deed, to sell to Bogart all his interest in the military bounty lands \ and the power contained in the deed to execute a subsequent conveyance in fee, was to provide for th e consummation of the title as soon as the patent should issue. The patent did, afterwards, issue to Kidd, and he became seised in fee of the lot in question, except so far as he had, in the intermediate time, parted with his legal title to Bogart. He had only parted with a life estate, but with authority to his attorney to release the fee, which that attorney omitted to do, until long after Kidd had sold to Cobb his reversionary interest in the lot. The deed from Kidd to Cobb, was made on the 25th of February, 1792, and it conveyed, for the consideration of ten pounds, all his interest in the military bounty lands ; and to this deed was annexed Ms discharge as a soldier from the American army in 1783.
The deed to Bogart of the life estate, with a power to convey the fee, was deposited in the clerk’s office in Albany, in April, 1794, and the subsequent deed to Cobb, conveying the reversion in fee, was deposited in the same office in March, 1795. Both deeds were deposited in season f and both stood upon an equal footing, so far as the deposit was concerned, for the law made no distinction as to the-[548]*548time of the deposits, if made before the first of May, 1795. The deed to Cobb was duly recorded in Cayuga county, in June, 1813, and the deed to Bogart not before May, 1818.
Here, then, we have two distinct deductions of titles; the deed tQ p>0garf^ unfier which Henderson, the lessor of the plaintiff, claims, and the deed to Cobb, under which Davenport, the defendant, claims; and the question is, whether the reversionary interest in the land, which resided in Kidd, subject to the life estate in Bogart, was legally conveyed to Cobb, so as to enable him to hold, in opposition to the subsequent execution of the power contained in the deed to Bogart.
When Cobb purchased of the soldier, in 1792, he purchased bona fide, for a valuable consideration, without any notice of the prior deed to Bogart; and if Kidd, the soldier, had any legal estate remaining in himself, .which could be conveyed by him, it must have passed to Cobb. I cannot perceive any room for doubt upon this point. Bogart had only a life estate, owing to the imperfection of his deed, and that deed, imperfect as it was, would have been sufficient in equity, as against Kidd, or as against any person purchasing from him with notice of it. But Cobb had not any notice of that deed •, and if Kidd had a legal capacity to convey his reversion, it must have legally vested in Cobb ; and it appears to me, it could riot have been legally devested by any of the subsequent events.
Admitting that Kidd's power of attorney, to release his interest to Bogart, could not lawfully be revoked, yet the release was not, in fact, executed, and the reversion in fee did, in judgment of law, reside in Kidd, when he conveyed it to Cobb, in 1792. It was a breach of trust, or of good faith in Kidd; but Cobb ought not to be affected by it, for he was a stranger to the deed to Bogart, and to its contents. The power of attorney was not a legal lien or incumbrance upon the land, affecting a stranger who dealt with Kidd, Without notice of it. The most that can be said is, that Kidd held the reversion, subject to the power, or as trustee for Bogart. But Cobb did not know that Kidd had incapacitated himself, in a moral and equitable view, from conveying the reversion to him, or that he had already authorized an attorney to convey it to Bogart. Though a tras[549]*549tee conveys away the trust subject, in breach of his trust, yet if he had the legal title, and the person who took it from him, for a valuable consideration, had no notice of the trust, he will hold the land discharged of the trust. It appears to me impossible to maintain, that Kidd had no legal capacity to convey his reversionary interest. Whoevér has the legal title can convey it, if he be under no legal disability. If he holds the land in trust, or if lie be under a contract to convey, or has given a power of attorney to a third person to convey, all these may be obligations resting upon his conscience, and disabling him in equity to convey; but still, if he does convey, and to a person who has no knowledge, and. is not chargeable with any knowledge of these equitable impediments, and who pays a valuable consideration, the purchaser will hold, and the party injured must look to him who has broken his trust, or violated Ms duty.
The events subsequent to the conveyance to Cobb, are these : Bogart sold to Fowler, in 1791, and Fowler to Henderson, the plaintiff in error, in 1792 5 neither of those deeds were recorded until 1818 ; and in that year, Bogart died, and his life estate terminated. There was no release under the power of attorney contained in the deed to Bogart¡ until 1802, which was tea years after Kidd had anticipated the execution of that power by conveying the same reversionary interest to Cobb. This release or execution of the power, in 1802, was never recorded, and when Cobb sold and conveyed to the defendant, Davenport, in 1815, for 1000 dollars, (and which deed was immediately recorded,) the defendant had no knowledge of the release to Bogart. If he knew of the power, he had no reason to presume that it could ever be executed, considering that 27 years had elapsed between the time of the original purchase by Bogart, and the purchase by the defendant from Cobb, and that 25 years had elapsed since the issuing of the patent, when, according to the language of the deed to So= gart, the power was intended to be executed. Davenport, the purchaser from Cobb, had good reason to presume, that if any execution of the power existed, it would have appeared upon record, for the statute required all deeds, affecting In law or equity the military lands; to be recorded. But [550]*550whether the defendant had notice or not, is immaterial, provided the deed to Cobb was valid, and conveyed a title unaffected by the power. Whatever title Cobb had, the defendant would take, with or without notice.
The case, then, appears to resolve itself into this single point : Did the execution of the power contained in Kidd’s deed to Bogart, by a release of the fee to Bogart, in 1802, overreach and destroy the intermediate release to Cobb, in 1792 ? I am of opinion that it did not j and I do not put the cause upon the point, whether the power of attorney, contained in the original deed to Bogart, was, or was not, a power legally subject to revocation $ and whether Kidd could, or could not, revoke it, as between him and Bogart. I put my opinion upon this ground : That the reversionary estate in fee in the premises, after the original deed from Kidd to Bogart, continued to reside in Kidd, and that Kidd passed that interest to Cobb, prior to the execution of the power, and that Cobb was competent to take and to hold, inasmuch as he was a bona fide purchaser, without notice of the power, and was not to be affected by a subsequent execution of it. This ground appears to me to be just and solid, and founded equally on the rules of law and the principles of policy.
It cannot properly be said that Kidd did not continue seised of the reversion in fee, after his deed, in 1788, to Bogart. He had the entire fee in himself, and as he conveyed only a. life estate to B. the residue must remain in him, and could only pass out of him by deed or by descent. The power of attorney was no conveyance ; it was an authority to a stranger to convey the reversion to Bogart; and until the execution of the power, .the reversion continued as if no such power had been created.
It was suggested upon the argument, that a power of this kind could not be barred or extinguished by a conveyance 5 and that when it was once executed, it would relate back to the time of the instrument creating the power. Thus, the deed to Bogart, in 1788, contained a power of attorney to third persons, therein named, to convey the whole estate in fee to Bogart; and the argument is, that when the power was executed, no matter when, whether in ten, twenty, or fifty years afterwards, it, would relate back to the time of the [551]*551deed to Bogart, as that was the origin of the power, and would avoid all intermediate conveyances, contrary to it. I am not going to deny the general doctrine, that an estate created by the execution of a power, takes effect as if created by the original deed. (Litt. s. 169. Co. Litt. 113 a. and Cook v. Duckenfield, 2 Atk. 562—567.) But this is only to certain purposes, and as between the parties, 'and not as to the intervening rights of strangers to the power. A deed executing a power, is, in many respects, considered as a substantial independent instrument. Lord Hardwiclce is said (2 Vesey, 65.) to have decided, that such a deed was a conveyance within the statute of Elizabeth, and liable to be affected by the provisions of the statute against fraudulent conveyances. It is a deed affecting land, within the registry acts; and in countries where deeds are required to be recorded, it must be recorded as well as any other deed, otherwise, purchasers would be unable to discover whether the power had been executed, and would be liable to be defrauded. This was so decided in Scrafton v. Quincey, (2 Vesey, 413.) by Sir John Strange, the Master of the Rolls. That case appears to me to be quite decisive of this cause, for the deed under the power was never recorded j and, therefore, the deed to Cobb, and the deed from Cobb to Davenport, the defendant, being duly recorded, are certainly entitled to preference. When the defendant purchased of Cobb, In 1815, it was impossible for him to guard himself against the secret execution of this power, for the evidence of the execution of the power was not upon record.
This doctrine, that a deed executing a power refers back to the instrument creating the power, so that the party is deemed to take under the deed from the grantor by whom the power was created, and not from the power, is a fiction of law, and so it was considered in Bartlett v. Ramsden ; (1 Keb. 570.) relatio est fictio juris, according to the resolution in Menvil's case ; (13 Co.) and is upheld to advance a right, not to advance a wrong, or to defeat collateral acts which are lawful, and especially if they concern strangers. This limitation of the .fiction, so as to prevent it from doing injury to strangers, or defeating mesne lawful acts, is the common language of the books ; (4 Johns. Rep. 234. 12 Johns. [552]*552Rep. 144. 18 Viner, 287. B. pl. 2. Butler and Baker’s case, 3 Co. 25. 29 a. 2 Vent. 200.) and it received a very particular illustration by Lord Hardwicke, in the case of Marlborough v. Godolphin, (2 Vesey, 78.) He admitted the pr;ncjp]e? that where a person takes by execution of a power, pe takes under the authority of the power ; but there was no case, he said, to maintain that he must take, by relation, from the time of the creation of the power. The meaning of the rule was that persons taking under a power, must take in the same manner as if the power, and the instrument creating the power, had been incorporated in one instrument, but not in the same time. The title is derived from the act creating the power, but the time of vesting of the right is the time of the act of execution of the power. These executions of powers, says Lord H., do not refer back, like assignments in commissions of bankruptcy; for the latter refer back by force of the statutes of bankruptcy, to avoid mesne wrongful acts. The same distinction was alluded to by Lord Hardwicke, in Southby v. Stonehouse ; (2 Vesey, 610.) and I am greatly mistaken, if this be not the plain common sense and manifest justice of the thing. Any other construction would lead to fraud and intolerable abuse.
It is stated in the books as a general rule, that a simply collateral or naked power, cannot be barred or extinguished by disseisin, or by fine, feoffment, or other conveyance. (Albanie’s case, 1 Co. 110. Digg’s case, 1 Co. 173. Edwards v. Slater, Hard. 410. Willis v. Sherral, 1 Atk. 479. 15 Hen. VII. fo. 11 b. cited and translated in Appendix No. 1. to Sugden’s Treatise of Powers.) It is said, for instance, that if a power to sell land be given to executors, and the heir of the testator enters and enfeoffs B., who dies seised, yet the executors may sell, and the vendee will be in by the will, which is paramount to the descent, and that a descent which tolls an entry does not toll a power. (Jenk. Cent. 184. pl. 75. Bro. Abr. tit. Devise, pl. 36. Parsons, Ch. J. in 5 Mass. Rep. 242.) I presume, that I may venture, upon the strength of the authorities which have been previously mentioned, and upon the reason of the thing, to question the universality of the application of this rule, and to insist that it ought to be confined within reasonable limits. [553]*553If I have not misapprehended the cases on this subject, such a power cannot lay dormant and concealed, and then spring up, at any distance of time, and prevail against a conveyanee from the person having the legal title, to a purchaser for valuable consideration, without notice of the power; and especially, if the lands lie (as they do in this case) in a recording county, and the purchaser’s deed be recorded before the deed under the power, and without knowledge of that deed. So far, and no further, it is necessary to go in this case j and I wish to be understood as confining my opinion to the circumstances of this case. I conclude, then,
(1) That Henderson, the plaintiff, must make out his title to the fee under the execution of the power of attorney contained in the deed from Kidd to Bogart in 1788,
(2) That the release under that power operates as against the defendant, only from the time of its execution, in 1802, and is not to be carried back, by relation, to the date of the deed creating the power, so as to destroy the operation of the deed to Cobb, in 1792, and, consequently, the deed from Mm to the defendant, in 1815. This would be to defeat an intervening vested right and title to the fee acquired by a third person, from the party having the legal title, without notice of the execution, or even of the existence of the power. The deed to Bogart, containing the power, was not recorded until after the record of the purchase by the present defendant, and the subsequent deed, in execution of the power, was never recorded. If a title so acquired under a power not recorded, was to prevail against a regular title fairly acquired, and duly recorded, without notice, it would be in vain to rely upon the provisions of the recording statutes. A party need only create a power, and let it sleep for an age, unknown and undetected, and then awaken its potent energies, and sweep away the titles, and the hopes, and the fruits of a whole generation. I cannot bring my mind to accede to any such mischievous doctrine; and I am, for the reasons assigned, of opinion, that the judgment of the Supreme Court ought to be affirmed.
This being the unanimous opinion of the Court, it was, thereupon, ordered, adjudged, and decreed, that the [554]*554judgment of the Supreme Court, in this cause, be affirmed j and that the plaintiff in error, pay to the defendant in error, his costs, to be taxed, in defending the writ of error in this Court ; and that the record be remitted, See.
Judgment of affirmance.