and appointment,) I apprehend the lease and release would operate to pass the feifin or poffeffion to L. for the life of M. and they would have also paffed the feifin in O's remainder, in fee, and as the whole ufe is afterwards expreffed to be limited to O. in fee, the ftatute would have drawn from L. the poffeffion, and executed it in O. IF THE DEED HAD CONTAINED NOTHING MORE THAN THE BARE RELEASE. But when M. and O. exprefsly in purfuance and exercife of the power, (which, it must be remembered, was prior to, and took place of the limitation of the remainder in fee, to 0.) join in directing, limiting, and appointing, unto L. and his heirs, they perform the particular and very act which would divest or defeat the old ufe, or old remainder in fee, in O. and would give birth to and establish a new ufe, and the direction, limitation, and appointment, unto L. and his heirs, muft, in this cafe, have precifely the fame effect as if it had been to the use of him and his heirs, for this is an appointment and limitation of an estate to him, which limitation, fo far as it operates under the power, muft of courfe carry the ufe to him as the appointee, for the words of the power are, to the use of such perfon and perfons, and for fuch eftate and eftates, &c. and befides, this limitation is incapable of any other effect under the power, as it could not transfer the mere naked feifin or fcintilla juris, which is fuppofed to remain in the recoveror, in the common recovery, to serve and feed the uses created, and to arise under that recovery, or, in other words, to serve the ufes to arife under the execution of the power of appointment, referved to M. and O. when fuch uses should come in effe, and therefore immediately upon the appointing and limiting of such new estate or ufe to L. and his heirs, the feifin or poffeffion was, by the operation of the statute, instantaneously drawn from the recoveror, and vefted or executed in L. who thereby took the legal eftate, as it is ufually called, in the remainder, in fee. L. having thus acquired the ufe under the appointment, and the poffeffion under the ftatute, conftituting together the legal estate in the remainder in fee, the leafe and release would now have an effect which they would not have had in cafe there had been no such appointment, for M.'s estate for life would, as before obferved, pafs by the leafe and release to L. and as it would then meet and unite with the legal remainder in fee, vefted in L. as above, by the union thereof, (i. e. the eftate for life and the immediate remainder in fee,) in one and the fame perfon, the estate for life was inftantly merged and extinguished in the remainder, in fee, and that by these means H. became absolutely seised of the whole ufe or legal eftate, in fee fimple, in poffeffion, which could not be withdrawn from, nor divefted out of him, by the fubfequent declaration or limitation, in the deed of, although expreffed to be to the ufe of O. and his heirs, fuch limitation being precifely the fame as if the expreffion had been " in truft for O. and his heirs,” as there cannot be an use limited upon an ufe, or two legal eftates in fee fimple, vefting at the fame time. In fupport of this opinion, it is only necessary to remark, that uses and trusts were before the statute of úses the fame thing, and that in the statute, uses, trufts, Vàugh, 50. and confidences, are repeatedly called by the fame name, Dyer 155, Cro. Eliz. 382, 1 1 Atk. 591. 2 Black. Com. 155 and used as synonimous terms, so that when a man grants Hales, P. C. and releases to A. and his heirs, to hold to A. and his 248. heirs, to the use of B. and his heirs, to the use of C. and his heirs, or even when a man grants and releases to A. and his heirs, to hold to A. in trust for B. and his heirs, to the use of C. and his heirs, here the statute executes the first use in B. who would take the legal fee in the fecond as well as in the first of these cases, for both are 336. 1 And. equally within the words of the statute, and in the fecond 37,313. Dyer, cafe the law confiders the words "in trust for B." as fy- Black. 336, nonimous with, and tantamount to the words "to the ufe ufesthese words of B." and alfo confiders the words "to the ufe of C." as fame fignificaas having the tantamount to the words "in truft for C." But in both tion. these cases it is evident that the parties did not intend that B. should enjoy any beneficial intereft; therefore a court Atk. 591. of equity steps in, and laying hold of the intention, declares, that in confcience B. is only a trustee for C. who hall take what is called the equitable fee-and this VOL. II. C 1 Cafe. equitable fee is the whole of what O. took under the releafe and appointment of 1770. And this is confiftent with the doctrine laid down in Chudleigh's cafe in Coke, 126, a. 136, a, &c. for all the requifites there pointed out to the execution of an ufe by the statute, are, in the present case, to be found in the recoveror, in L. and in the estate appointed to L. which could only be an ufe in effe. Pow. MSS. N. B. Under the foregoing limitation M. and O. might have conveyed in another manner, viz. by joining in a deed, whereby, in purfuance and execution of their power aforefaid, they might have directed, limited, and appointed, that fubject and expectant upon M.'s estate for life, the lands fhould go, remain, &c. unto O. and his heirs; or they might have directed, limited, and appointed that (fubject as aforefaid,) the lands fhould go, remain, and be unto, and that the recoveror in the fame common recovery, and his heirs, would ftand and be feifed thereof, to the use of O. and his heirs. By an appointment in either of these terms, although the latter mode would have been more correct and formal, the immediate legal remainder in fee would unquestionably have been vested in O. and then M. by another deed, to have been dated and executed the day after fuch appointment, might have furrendered his eftate for life to O. who would thus moft clearly have acquired the whole legal estate in fee fimple, in poffeffion-fo it might have been effected by M.'s furrendering his eftate for life, at once to O. without executing the power. Lands were limited to H. S. and his affigns, for his life, remainder to the use of such perfon or perfons, and for fuch eftate and eftates, &c. with or without power of revocation, as the faid H. S. and C. W. S. his fon, fhould appoint, and for default of such appointment, to the use of the faid C. W. S. his heirs and affigns, for ever. C. W. S. was defirous of raising a sum of money by way of mortgage of thefe premises, without the privity of his father, and the queftion was whether C.W. S. could make a good title to a mortgage of his reverfionary interest in fuch eftate, and by what mode of conveyance. The estate stands fubjected to the joint appointment of the father and fon, and therefore the only objection to a title to be made by the fon alone, of his reverfion, is the poffibility of his hereafter joining with his father in the execution of fuch power of appointment; a fine come ceo, by the perfon having fuch a power of appointment alone, will in general destroy that power; and I incline to think, that fuch a fine by C. W. S. would have that effect in the prefent case, if so he might by leafe and release, and a fine, (accompanied with a release of his power of appointment,) convey the lands to and to the use of the mortgagee in fee, so as thereby to make him a title. But though upon the principles applicable to these cafes, I think that a title may be thus made in this cafe, yet, as this is not the cafe of a fole but of a joint power of appointment, I cannot venture to speak fo peremptorily in regard to it, and would recommend it to the perfon advancing the money, not to proceed on my fingle opinion. C. F. Opinion. PRECEDENTS OF DEEDS OF APPOINTMENTS. PURCHASES. I. APPOINTMENTS TO PURCHASERS. An Indenture of Revocation, Appointment, and Releafe, of Lands, &c. (executed under a Power,} to a Purchafer, very special. THIS indenture, made theyear of our Lord Chrift ——, ་ day of, in theand in the year of the reign of our fovereign lord George III. &c. Parties. Between C. J. of in the parish of -, in the county of—, efq. and A. T. of ——, esq. of the first part; G. W. late of -- in the county of, in that part of Great Britain called Scotland, and now of, and S. his wife, of the fecond part; C. K. of in the county of spinfter, of the third part; (which faid S. the wife of the faid G. W. and C. K. are the only |