#### Cyrus Alger *versus*Richard S. Fay.

Whe/e the owner of lands in fee simple, being in failing circumstances, conveyed the lands to F. and his successors, in trust from the proceeds of the sales thereof to pay the grantor’s debts, and to reconvey whatever surplus there might be, and appointed F. his attorney, “ giving him, at his own discretion, full power to *sell*all or any of the lands,” it was held, that although F. did not take a fee himself, nevertheless he had a sufficient power of attorney to convey the fee.

Action of covenant. Upon a case stated it appeared, that on April 1, 1830, one Clapp, being seised in fee of certain lands, conveyed the same to Fay, the defendant, upon the trust and subject to the restrictions contained in an indenture of the same date, and to his *successors*in the trust. On the same day an indenture tripartite was executed between Clapp of the first part, Fay, of the second part, and one Gay and others, creditors of Clapp, of the third part, in which indenture (after a recital that Clapp is indebted in a large sum of money which he is at present unable to pay without a great sacrifice of his estate, and that all his real estate has been attached at the suit of some of his creditors, and that 6‘ he has assigned all the *real*estate *to*him belonging,” to Fay in trust for the purpose of paying his, Clapp’s, debts,) Clapp grants, bargains, sells and conveys to Fay the real estate, in trust, subject to the limitations and restrictions, that no part of the same shall be sold or disposed of by Fay for the term of four years from the date of the indenture, except by the consent of Clapp in writing, provided however, that if Clapp shall fail to pay the interest upon his debts annually,- Fay shall have “ full power and authority "to sell and dispose of the lands without the consent of Clapp, and to appropriate the proceeds of the sales to the satisfaction of said debts, as well as interest, without limitation as to time ; to have and to hold to the said Fay and *to his successors in said*trust, subject to the above limitations and restrictions, upon and for the following trusts,” &c. 1. To pay “ from the proceeds of the sales of said land,” all the costs, &c. 2. To pay the several debts in schedule A, &c. 3. “ To pay the several debts in the schedule B, in equal sums and proportions until the whole are fully paid or the property wholly applied towards the payment; *328and 4. To reconvey to Clapp whatever surplus shall remain in the hands of Fay of the property conveyed ; and Clapp covenants that he will perform all further reasonable acts necessary to carrying into execution the performance of the trusts ; and he appoints Fay his attorney irrevocable, “ to enter upon, in his own name or otherwise, the said lands, &c. giving the said Fay, at his own discretion, full power and authority, at any time, *to sell*all or any of said lands, even before the expiration of said four years, provided the said Clapp shall fail to pay the interest upon said debts ; ” and in case Fay shall die before the completion of the trusts, provision is made for choosing another trustee with the like rights, duties, interest and liabilities *\*and it is agreed that the execution of the indenture by any creditor shall not discharge any attachment pending against Clapp, until the attaching creditors have all become parties to the indenture.

Clapp failed to pay the interest upon the debts mentioned m schedule A, and on May 30, 1831, Fay, in the name of Clapp and as his attorney, granted certain lands assigned to him as above mentioned, to the plaintiff *in fee,*and on the back of the deed he covenanted that he had full power and authority to execute and deliver the deed for Clapp and in his name.

It was for an alleged breach of this covenant that this action was brought; and if, in the opinion of the Court, Fay had power to convey to the plaintiff in the manner set forth in the deed of May 30, 1831, the plaintiff was to become nonsuit; if not, the defendant was to be defaulted.

*March 20th.*

*T. Parsons,*for the plaintiff,

argued that under the convey anees to Fay from Clapp, Fay took only an estate for his own life; Co. Lit. 8 6 ; 3 Preston on Conv. 531 ; Com. Dig *Estates by*Grant, A 2 ; that the words of the indenture were to be construed strictly and according to their legal operation, and that the power to sell was only co-extensive with the estate before conveyed to Fay, and would not enable him tc convey the fee simple. *Griffith*v. *Harrison,*4 T. R. 749 *Robinson*v. *Hardcastle,*2 T. R. 241.

*Jlshmun, contra,*

admitted that for want of the word *heirs,*Fay did not take a fee ; he contended however that no forma *329words were necessary to a power of attorney, but that the intention was to govern ; 4 Cruise’s Dig. *tit.*32, Deed, c. 15, § 12 ; 4 Kent’s Com. 313; Sugd. on Powers, (1st Am. edit.) 97 ; that from various provisions in this indenture, the intention of Clapp manifestly was, that his whole estate in the lands should be applied to the payment of his debts ; and that the power of attorney to Fay was sufficient to enable him to convey the fee, in order to accomplish this purpose.

*March 22d*

And for these reasons the *Court*were of opinion that the power was well executed and the defendant’s covenant not broken.

*Plaintiff nonsuit.*