TITLE 2. § 118. Where the grantor of a power shall have directed or authorDirections ised it to be executed by an instrument not sufficient in law to pass the estate, the power shall not be void, but its execution shall be governed by the rules before prescribed in this article. by grantor. Directions by grantor. 28 Hun, 603. Nominal conditions. 49 N. Y., 602. When directions of grantor to be observed. 2 Denio, 61; 49 Barb., 133. Consent of third per ecution of power. § 119. When the grantor shall have directed any formalities to be observed in the execution of the power, in addition to those which would be sufficient by law to pass the estate, the observance of such additional formalities shall not be necessary to a valid execution of the power. § 120. Where the conditions annexed to a power are merely nominal, and evince no intention of actual benefit to the party to whom, or in whose favor, they are to be performed, they may be wholly disregarded in the execution of the power. § 121. With the exceptions contained in the preceding sections, the intentions of the grantor of a power, as to the mode, time and conditions of its execution, shall be observed, subject to the power of the court of chancery, to supply a defective execution, in the cases hereinafter provided. § 122. When the consent of a third person to the execution of a sons to ex power is requisite, such consent shall be expressed in the instrument by which the power is executed, or shall be certified in writing thereon. In the first case, the instrument of execution, in the second, N. Y., 602. the certificate, shall be signed by the party whose consent is required; and to entitle the instrument to be recorded, such signature must be duly proved or acknowledged, in the same manner as if subscribed to a conveyance of lands. [737] Certain dispositions, not void. Omission to recite power. Fraud. Power to devise, how exe cuted by terms of will. 25 Barb., 564; 43 Certain estates to be advance. § 123. No disposition, by virtue of a power, shall be void in law or in equity, on the ground that it is more extensive than was authorised by the power; but every estate or interest so created, so far as embraced by the terms of the power, shall be valid. § 124. Every instrument executed by the grantee of a power, conveying an estate or creating a charge, which such grantee would have no right to convey or create, unless by virtue of his power, shall be deemed a valid execution of the power, although such power be not recited or referred to therein. § 125. Instruments in execution of a power are affected by fraud, both in law and equity, in the same manner as conveyances by owners or trustees. § 126. Lands embraced in a power to devise, shall pass by a will purporting to convey all the real property of the testator, unless the intent that the will shall not operate as an execution of the power, shall appear, expressly or by necessary implication. Barb., 91; 92 N. Y., 295, 539. § 127. Every estate or interest given by a parent to a descendant, by virtue of a beneficial power, or of a power in trust with a right of selection, shall be deemed an advancement to such descendant, Bosw., 188. within the provisions of the second chapter of this act. ments. 61 Barb., 298; 8 Computa. tion of term of § 128. The period during which the absolute right of alienation may be suspended, by any instrument in execution of a power, shall Suspension be computed, not from the date of such instrument, but from the time of the creation of the power. 6 T. & C., 555; 12 N. Y., 404; 3 Duer, 73; 4 Hun, 290; 29 N. Y., 39, 78; 30 Hun, 617; 96 N. Y., 214. ART. 4. take under § 129. No estate or interest can be given or limited to any person, by an instrument in execution of a power, which such person would who made not have been capable of taking, under the instrument by which the power was granted. powers. 3 Duer, 95; 16 Wend., 324. women, § 130. When a married woman, entitled to an estate in fee, shall Married be authorised by a power to dispose of such estate during her mar- their auriage, she may by virtue of such power, create any estate, which she thority, might create if unmarried. etc. executions. § 131. Where the execution of a power in trust shall be defective, Defective in whole or in part, under the provisions of this article, its proper 3 N. Y., 278. execution may be decreed, in equity, in favor of the persons designated as the objects of the trust. 400. § 132. Purchasers for a valuable consideration, claiming under a Id. defective execution of any power, shall be entitled to the same relief NY, in equity, as similar purchasers, claiming under a defective conveyance from an actual owner. sell in mortgages. § 133. Where a power to sell lands shall be given to the grantee, Powers to in any mortgage or other conveyance intended to secure the payment of money, the power shall be deemed a part of the security, and [738] shall vest in, and may be executed by any person, who, by assign- 33 Hun, 616; ment or otherwise, shall become entitled to the money so secured to 35 Hun, 581. be paid. 32 Hun, 520; tion of this § 134. The provisions of this article shall not extend to a simple Applica. power of attorney, to convey lands in the name, and for the benefit, article. of the owner. 23 Barb., 498; 99 N. Y., 1, 7. of a § 135. The term "grantor of a power," is used in this article, as Terms designating the person by whom a power is created, whether by "grantor grant or devise; and the term "grantee of a power," is used as power," designating the person in whom a power is vested, whether by grant "grantee devise or reservation. of a pow. ARTICLE FOURTH. OF ALIENATION BY DEED. SEC. 136. Feoffment with livery of seisin, abolished. 137. Grants in fee or of freeholds, how executed; when to take effect. 139. Covenants not implied in mortgages; remedy of mortgagee. 141. Lineal and collateral warranties abolished; liability of heirs, etc. 145. Conveyances of greater estate by tenant for life or for years. of Livery of seisin. 40 Hun, 453. Grants in freeholds, $137. Every grant in fee or of a freehold estate, shall be subscribed and sealed by the person from whom the estate or interest fee or of conveyed is intended to pass, or his lawful agent; if not duly how exe acknowledged, previous to its delivery, according to the provisions ented; of the third chapter of this act, its execution and delivery shall be take effect. when to TITLE 2. attested by at least one witness; or if not so attested, it shall not take effect as against a purchaser or incumbrancer, until so acknowledged. Delivery. 6 Barb., 103; 11 Wend., 249; 533; 50 N. 5 Wend., Y., 61; 1 Covenants in mortgages. Remedies 1 Abb. Ct. App. Dec., 36, 247; 3 id., 442; 57 Barb., 247; 46 N. Y., 633; 48 N. Y., 644; 29 N. Y., 572, 585; 13 N. Y., 514; 31 Barb., 157; 17 Barb., 103; 6 Barb., 42; 2 Barb., 618; 2 Wend., 575; 6 Park. Cr. R., 686; 2 Sandf Ch., 633; 2 Redf., 349; 6 Daly, 460; 62 N. Y., 105; 22 Hun, 437; 29 Hun, 399; 86 N. Y., 603; 24 Hun, 575. § 138. A grant shall take effect, so as to vest the estate or interest intended to be conveyed, only from its delivery; and all the rules of law now in force in respect to the delivery of deeds, shall apply to grants hereafter to be executed. App. Dec., 247. § 139. No mortgage shall be construed as implying a covenant for the payment of the sum intended to be secured; and where there shall be no express covenant for such payment, contained in the mortgage, and no bond or other separate instrument to secure such Lans., 40; payment, shall have been given, the remedies of the mortgagee shall be confined to the lands mentioned in the mortgage. of mortgagec. Barb., Ch., 569; 2 44 How., Pr. R., 371; 5 Daly, 40; 5 Hun, 407, 12 Daly, 310; 29 Hun, 534; 32 Hun, 485; 35 Hun, 458; 95 N. Y., 353, 513. in convey. Covenants § 140. No covenant shall be implied in any conveyance of real ances. estate, whether such conveyance contain special covenants or not. [739] collateral 53 N. Y., 398; 43 N. Y., 462; 40 N. Y., 143; 9 Bosw., 76; 7 Bosw., 507; 13 N. Y., 158; 9 N. Y., 542; 31 Barb., 551; 13 Barb., 284; 8 Paige, 598; 14 Wend., 39; Cl. Ch., 503; 1 Duer, 427; 11 Paige, 569; 20 Barb., 455; 15 Barb., 359; 39 Barb., 65; 30 Hun, 129; 32 Hun, 482; 35 Hun, 469; 36 Hun, 181; 39 Hun, 204, 264; 97 N. Y., 348. § 141. Lineal and collateral warranties, with all their incidents, are Lineal and abolished; but the heirs and devisees of every person who shall warranties. have made any covenant or agreement, shall be answerable upon such covenant or agreement, to the extent of the lands descended or devised to them, in the cases and in the manner prescribed by law. 17 Barb., 165. Certain deeds de. clared grants. [1 R. L., 525, § 26.] § 142. Deeds of bargain and sale, and of lease and release, may continue to be used, and shall be deemed grants; and as such shall be subject to all the provisions of this chapter, concerning grants. IN. Y.,248; certain convey. ances. Effect of § 143. No greater estate or interest shall be construed to pass by any grant or conveyance, hereafter executed than the grantor him3 Hun, 521; self possessed at the delivery of the deed, or could then lawfully IN. Y., 248; Convey, except that every grant shall be conclusive as against the 41.78; grantor and his heirs claiming from him by descent. 9 N. Y., 51; 5 T. & C., 570; How far 35 Hun, 459. conclusive on purchasers. § 144. Every grant shall also be conclusive as against subsequent purchasers from such grantor, or from his heirs claiming as such, except a subsequent purchaser, in good faith and for a valuable con356; 69 N. sideration, who shall acquire a superior title by conveyance that shall have been first duly recorded. 6 Barb., Y., 1; 35 Hun, 458. Convey. § 145. A conveyance made by a tenant for life or years of a tenants for greater estate than he possessed or could lawfully convey, shall not ances by ART. 4. work a forfeiture of his estate, but shall pass to the grantee all the title, estate or interest, which such tenant could lawfully convey. years. life or for 1 N. Y.,248; 41 N. Y.,78. ment by necessary. § 146. Where any lands or tenements shall be occupied by a Attorn tenant, a conveyance thereof, or of the rents or profits, or of any tent other interest therein, by the landlord of such tenant, shall be valid when unwithout any attornment of such tenant to the grantee; but the Liabilities payment of rent to such grantor, by his tenant, before notice of the of tenant grant, shall be binding upon such grantee; and such tenant shall 14 Bradf, not be liable to such grantee for any breach of the condition of the 625. demise, until he shall have had notice of such grant. [1 R. L., 525, § 25.] 4 N. Y., 128; 694; 37 Hun, ance of § 147. Every grant of lands shall be absolutely void, if at the Convey time of the delivery thereof, such lands shall be in the actual pos- land adsession of a person claiming under a title adverse to that of the versely grantor. 39 How. Pr. R, 453; 2 Robt., 494; 5 id., 716; 22 N. Y., 172; 26 Barb., 454; 20 Barb., 439; [1 R. L., 173, § 8.] possessed. may be thereof. § 148. But every person having a just title to lands, of which Mortgages there shall be an adverse possession, may execute a mortgage on given. such lands; and such mortgage, if duly recorded, shall bind the Effect lands from the time the possession thereof shall be recovered, by the mortgagor or his representatives. And every such mortgage Priority of shall have preference over any judgment or other instrument, sub- 5N. Y., 847; sequent to the recording thereof; and if there be two or more such 41 Barb., mortgages, they shall severally have preference according to the Abb. Pr. time of recording the same respectively. lien. 288; 17 R., 460; 31 Hun, 293. SBC. TITLE III. Of Estates in Dower. 1. Of what widows shall be endowed. 2. Widows of aliens, if inhabitants, entitled to dower. 3. Dower in case of exchange of lands. 4. Dower in lands mortgaged before marriage. 5. In lands mortgaged for purchase money. 6. Claim to one-third of surplus proceeds of sale, in such case. 7. Widow of mortgagee not entitled to dower. 8. Dower forfeited by divorce for her misconduct. 9. Settlements by jointure, with her assent, to bar dower. 10. How her assent to jointure to be evidenced. 11. Pecuniary provision in lieu of dower, when to bar it. [740] TITLE 3. SEC. 12. If jointure, etc., made without her assent, she to elect. 13. If provision in lieu of dower be made by will, to elect. Dower of widows. Widows of aliens. 14. Deemed to have elected, unless she enter or sue, within a year. SECTION 1. A widow shall be endowed of the third part of all the lands, whereof her husband was seised of an estate of inheritance, at any time during the marriage. 50 N. Y., 161, 164; 43 N. Y., 441; 56 Barb. 264; 3 Lans., 41; 4 Robt., 702; 1 T. & C., 58; 15 Abb., N.S., 230; 50 N. Y., 161; 53 N. Y., 298; 10 Hun, 194; 53 How. Pr. R., 97; 9 Hun, 514; 7 Abb. Ñ. C., 236; 3 Redf., 34; 8 N. Y., 110; 5 N. Y., 394, 502; 4 N. Y., 95; 23 Barb., 125: 18 Barb., 561; 15 Barb., 485; 13 Barb, 106; 12 Barb., 201, 537; 11 Barb., 152; 8 Barb., 401; 5 Barb., 324; 3 Barb., 319; 1 Barb.. 399; 21 Wend, 60; 16 Wend., 617-622; 12 Wend., 66; 11 Wend., 592; 10 Wend., 486; 7 Paige, 259; 1 Paige, 634; 2 Denio, 430; 3 Edw., 437; 6 Johns. Ch. R., 258; 4 Johns. Ch. R., 604; 13 Johns. R., 180; 2 Johns. R, 123; 7 Cow., 357; 5 Cow., 389; 1 Cow., 463; 31 How. Pr. R., 499; 28 Hun, 235; 30 Hun, 446, 555; 33 Hun, 76; 37 Hun, 227; 38 Hun, 560; 41 Hun, 488; 87 N. Y., 153. [1 R. L., 56, § 1.] § 2. The widow of any alien, who, at the time of his death, shall be entitled by law to hold any real estate, if she be an inhabitant of this state, at the time of such death, shall be entitled to dower, of 5 Cow., 713; such estate, in the same manner as if such alien had been a native 21 Wend., 62; 12 Wend., 66; 43 N. Y., 441; 1 Abb. citizen. Ct. App. Dower in case of ex lands. 12 Barb., 537; 7 Dec., 272. 3. If a husband, seised of an estate of inheritance in lands, exchange of changes them for other lands, his widow shall not have dower of both, but shall make her election, to be endowed of the lands given, or of those taken, in exchange; and if such election be not evinced by the commencement of proceedings to recover her dower of the lands given in exchange, within one year after the death of her husband, she shall be deemed to have elected to take her dower of the lands received in exchange. Barb., 638; 42 Barb., 365; 28 Hun, 235. Lands, before marriage. 56 Barb., 264; 8 § 4. Where a person seised of an estate of inheritance in lands shall have executed a mortgage of such estate, before marriage, his widow shall nevertheless be entitled to dower out of the lands mortgaged, as against every person except the mortgagee and those 399, 407 13 claiming under him. 1 Barb., How. Pr. R., 295; 42 Barb., 365. In lands mortgaged [741] § 5. Where a husband shall purchase lands during coverture, and shall at the same time mortgage his estate in such lands to secure the payment of the purchase money, his widow shall not be entitled to dower out of such lands, as against the mortgagee or those claiming 50 N. Y., 10; under him, although she shall not have united in such mortgage, but she shall be entitled to her dower as against all other persons. for pur chase money. 15 Johns. R., 458; 10 of sale. § 6. Where, in such case, the mortgagee, or those claiming under him, shall, after the death of the husband of such widow, cause the land mortgaged to be sold, either under a power of sale contained in the mortgage, or by virtue of the decree of a court of equity, and 50 N.16; any surplus shall remain, after payment of the monies due on such mortgage and the costs and charges of the sale, such widow shall nevertheless be entitled to the interest or income of the one-third part of such surplus, for her life, as her dower.. Y., |