Page:Harvard Law Review Volume 8.djvu/379

RECENT CASES, 363 are all to the effect that delivery is necessary to the validity of a deed ; from which premise they conclude that there may be a delivery conditioned on the return of security; that as this was not done the title never passed from the grantor. Hence the deeds were merely a cloud on the title, and should properly be cancelled by decree of a court of equity. There is undoubtedly a remedy by decree in such a juncture; but it is not found in assimilating the procedure where real property is involved to that in vogue in cases of written contracts. These may be delivered up and cancelled. But it would seem that the proper decree in the principal case would be to reconvey, or that the grantee furnish such security as had been agreed between the parties. Property — Exception in Grant — Future Estate. — W. H. M. conveyed lands to one H. The deed contained the following clause : " Reserving unto said V. H. M. and E.- M. M. a life lease of said above-described premises, for and during the life of each of them." The question was what interest E. M. M. (plaintiff), who was the daughter of W. H., acquired by this clause, she being a stranger to the deed. Held, a " reservation " in favor of a stranger to the instrument is invalid as a reserva- tion, yet in order to effectuate the intention of the grantor such a reservation has uniformly been treated as " excepting " from the grant the thing reserved. The lan- guage here used must be treated as excepting from the grant the use, &c. of the land conveyed during the lives of both father and daughter, and at the death of the father the right to that use for the unexpired portion of the period must be held to have descended to the heirs of W. H. M., of whom the petitioner is one. Martin v. Cook, 60 N. W. Rep. 679 (Mich.). The purpose of the clause in this deed is clearly to create a future estate in fee. That such estate could not be created by a common-law conveyance is of course clear, on account of the impossibility of livery of seisin. This difficulty, however, may be overcom-i by treating this conveyance as a bargain and sale executed by the Statute of Uses (2 How. Ann. Stat. chap. 214, § 5565), inasmuch as there appears to have ben a consideration paid sufficient to raise a use. A good case on this point is Ro^^ers v. Eagle Fire Company, 9 Wend. 611. The court in the principal case do not discuss this point at all, though it seems the only ground on which the desired result can be attained. The court devote most of the opinion to deciding that technical words of reservation will not prevent the clause from being treated as an exception if such appears to have been the intention of the jDarties. It would seem that this is perfectly settled on principle and authority. In support of the proposition that this has not been confined to cases where the reservation had been previously carved out, the court cite several cases of such exceptions ; they refer mostly, however, to personalty, and for this reason do not seem precisely in point, as there is no difficulty about creating future estates in personal property. The decision is sound, but should be supported on the grounds suggested. Property — Joint Power of Appointment — Revocation by Survivor. — By a marriage settlement, funds were settled upon trust for the children of the marriage in such shares and in such manner as the husband and wife during their joint lives by deed, with or without power of revocation and new appointment, should appoint ; and in default of and subject to such joint appointment, then as the survivor of them should by deed, with or without power of revocation and new appointment, or by will appoint. The husband and wife made a joint appointment, with a proviso that the appointment thereby made was made "subject to the power of revocation and new appointment men- tioned in the settlement." After the death of the wife, the husband executed a deed revoking the joint appointment, and making a new appointment of the fund. Held, that the husband and wife had power in their joint appointment to reserve a power of revocation and new appointment to the survivor, and that such power was effectually reserved in the joint appointment. In Re Harding, L. R. [1894] 3 Ch. D. 315. This is a question of construction, and the court follow the rule laid down by Lord Kenyon in Brudenell v. Elwes, i East, 442. Lord St. Leonards states it as follows : " If a particular power is given to two persons or the survivor of them, with or without power of revocation, they may execute a/Ww^ appointment and reserve a power to the survivor to revoke and appoint again. The argument against the validity of the power of revocation to the survivor was, that the original power did not authorize a joint appointment to be defeated by any but a joint revocation. But the joint appointment is allowed to be superseded by the revocation of the survivor." Sugden on Powers, 8th ed., 364, § 6. Public Schools — Sectarian Teaching. — Bill in equity to restrain school directors from employing as teachers in the public schools nuns of the Sisterhood of St. Joseph, a religious society of the Roman Catholic Church, on the ground that their wearing the distinctive sectarian garb, crucifixes and rosaries of their order, during