1831. BADHAM v. MEE. collateral to the land." But the power of appointment in this case is intermediate and annexed in privity to the estate, and capable of being destroyed by the act of the party, and consequently it was destroyed by the bargain and sale under the bankruptcy, which is in effect the same as if Mee the elder had suffered a recovery. In Thorpe v. Goodall, Lord Eldon said (a)—" If the estate of the bankrupt has passed under the assignment, so that the power is destroyed, then there is no occasion for this bill. All that falls within those general words, ' possibility of profit,' passes under the bargain and sale;" and, in pronouncing judgment, his Lordship said (b)—" The question is, whether there is any equity in this Court to compel the bankrupt to execute this power:" and he concluded by saying that he was of opinion that he could not be compelled to do so. Secondly-The power was not well executed by Mee the elder after the bankruptcy had intervened, as, by the statutes of Elizabeth and James the First, not only his estate for life, but the ultimate remainder in fee, passed to his assignees. The question therefore is, whether he could defeat or displace that remainder, or create a fee, in derogation of his own previous grant. Although it is said that the appointment may enure as a base fee, as the ultimate remainder to Mee the elder was not to take effect till the failure of issue, yet no remainder can be limited upon a base fee. One fee cannot be mounted upon another. Littleton says (c)—“ A man cannot have a more large or greater estate of inheritance than fee simple;" and Lord Coke, in commenting on that section, says (d)—“ For this cause, two fee simples absolute cannot be of one and the self same land. One fee simple cannot depend upon another by the grant of the party; as, if lands be given to A., so long as B. hath heirs of his body, the remainder (a) 17 Ves. 393. (b) Id. 461. (c) Litt. s. 11. over in fee, the remainder is void." In Seymor's case (a), it is said " An estate of fee simple is either an estate of inheritance absolute and indeterminable; as, where lands are given to a man and his heirs, he has such a pure and absolute estate which can never determine; or a fee simple determinable, and that is in two manners, viz. either expressly derived out of an absolute and pure estate in fee simple, or implicite, and derived out of an estate tail; out of an absolute estate in fee also in two manners-first, by condition, as upon mortgage, and that is called a fee simple conditional-secondly, by limitation, as, if A. enfeoffs B. of the manor of D., to have and to hold to him and his heirs, so long as C. has heirs of his body, and that is called a fee simple limited and qualified; and in both these cases the whole estate in the land is in the feoffee; and therefore no remainder or reversion can be expectant upon either of them." In Gardner v. Sheldon, it is said (b)—“ A remainder cannot depend upon an absolute fee simple, by necessary reason; for, when all a man hath of estate, or any thing else, is given or gone away, nothing remains but an absolute fee simple being given or gone out of a man, that being all, no other or further estate can remain to be given or disposed, and therefore no remainder can be of a pure fee simple;" consequently, there cannot be a remainder expectant on a fee simple, whether absolute or qualified; and here, the effect of the appointment, if valid, would be to displace the remainder in toto: but the appointment must be considered as if the estate were limited by the marriage settlement, and then a fee could not have been mounted on a fee. Mr. Serjeant Spankie, in reply, was desired by the Court to confine himself to the point, whether the power had been well executed, after the bargain and sale to the assignees. 1831. BADHAM บ. MEE. 1831. BADHAM v. MEE. It may be admitted that a remainder cannot be limited upon a base fee, or a fee mounted on a fee, except in certain modes prescribed by law; but here, the conveyance to the assignees of the bankrupt's ultimate remainder, was a conveyance of a mere contingency, without any act of the bankrupt himself; and the assignees had the ultimate remainder, subject to the same power as existed in the bankrupt, and took nothing in derogation of his power to appoint for the benefit of his children, purchasers under the deed of settlement. The Court will not look at the incidental advantages to be derived by the donee. He was bound to appoint for the benefit of his family; and although he has made the appointment in favour of one son only, it must in effect tend to benefit the whole of his issue, and consequently the power was well executed; and, as it was for the benefit of children, it was not destroyed by the bargain and sale to the assignees: the base fee created by the appointment was analagous and equivalent to an estate tail in the appointee. Cur. adv. vult. The following certificate was afterwards sent to the Master of the Rolls:- We have heard this case argued by counsel, and have considered the same, and we are of opinion, that, from and after the execution of the deed of appointment of the 2nd of January, 1819, Richard Mee the son did not take any estate in the lands and hereditaments mentioned in the case under the said deed of appointment; but that, under the deeds of the 24th and 25th of April, 1794, he took an estate tail in remainder expectant on the determination of the life estate of his father. N. C. TINDAL, J. A. PARK, S. GASELEE, J. B. BOSANQUET. 1831. on. DEVERNER v. Bouverie. Wednesday, was prepared by one R., as agent of both the grantee, and, counterpart, grantor and the there being no hands of R., who received, and for several years paid over to the was left in the grantee the amount of the annuity. R. ultimately absconded, and the deed came into the posses A RULE was obtained by Mr. Serjeant Wilde, in the An annuity deed last term, calling on the defendant to shew cause why he should not produce and allow the plaintiff to inspect and take a copy of an indenture made between the plaintiff and defendant, in order to enable the plaintiff to declare thereThe motion was founded on affidavits which stated, that the action was brought to recover the arrears of an annuity due from the defendant to the plaintiff; that the deed in question was dated and executed on the 11th October, 1814, and by which the defendant, in consideration of 650%. advanced to him by the plaintiff, had granted to the plaintiff an annuity of 1007. per annum; that there was no counterpart of the deed, which, on its execution, was deposited with one Riley, who was the attorney or solicitor employed by the defendant, and that it was left in his hands, as the agent for and on behalf of all parties, upon an understanding that he, Riley, should receive the annuity from the defendant for the plaintiff; that Riley continued to pay the annuity until the year 1830, when he absconded, after which the present action was commenced for the arrears then due; and the plaintiff deposed that he believed the deed to be now in the custody of the defendant; and that he had refused to allow the plaintiff to inspect it or take a copy. sion of the grantor on his redeeming the annuity two years after it was granted. In an action by the grantee against the grantor for arrears of the annuity, the Court permitted the former to inspect and take copy of deed, to enable him to declare thereon, al a though it was sworn by the latter that R. was the agent of the grantee Mr. Serjeant Merewether now shewed cause, on an affi- alone. davit of the defendant, which stated, that the deed was prepared by Riley, and placed in his hands, as the agent of the plaintiff alone, and not as the attorney or solicitor of the defendant; and that, in the year 1816, the defendant redeemed the annuity by bona fide paying the amount of 1831. DEVERNER บ. BOUVERIE. up the consideration money to Riley, who thereupon deliver- Mr. Serjeant Wilde, in support of his rule.-The defendant has not denied that the deed was left with Riley, as the agent for and on behalf of all parties. Riley had no authority from the plaintiff to deliver up the deed to the defendant on his redeeming the annuity; and he not only kept this a secret from the plaintiff, but continued to pay the annuity up to the time he absconded, which was sixteen years after the deed was deposited with him. Although the plaintiff might have authorized Riley to receive the annuity from the defendant, it does not follow that he was the plaintiff's agent for the purpose of the defendant's redeeming it; and the latter was guilty of laches in having done so without communicating with the plaintiff, or requiring his discharge in writing. There can be no doubt but that Riley acted as the attorney for all parties on the granting of the annuity, and it must be assumed that he held the deed as trustee for the grantor and grantee. If it had remained in his possession, the plaintiff would have been entitled to inspect it, and take a copy; and the defendant having obtained the deed without the |