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COURT OF CHANCERY
                                    - LINCOLN'S INN.
Nov. 11
             Before the LORD CHANCELLOR.

             ATKINSON         V           SMITH

This part-heard appeal from a decree of Vice-Chancellor KINDERSLEY was this
morning resumed.  The plaintiff by his bill sought to set aside a deed,
purporting to be a conveyance of certain lands in the county of Cumberland,
on the ground that the deed was voluntary, and therefore void as against
him, a purchaser for valuable consideration.  The land in question was
formerly the property of Mr. JOHN  ATKINSON and BARBARA, his wife, who were
seised of it as joint tenants in fee, and they mortgaged it to a person
named BROWN.  The mortgage deed contained a power of redemption to the
effect that upon payment of principal and interest the mortgage should, at
the request and expense of the mortgagors, "reconvey the lands to their
heirs or assigns, or to such other person or persons, for such intents and
purposes, and in such manner and form, as they or the survivor of them, and
the heirs and assigns of such survivor, should nominate, direct, or  appoint
"  free from encumbrances.

At the time of the execution of the mortgage, a fine was levied.  The
mortgage was afterwards paid off.  In the year 1827, the deed in question
was executed, and by it the lands were reconveyed, by way of settlement, to
a trustee upon trust for Mr. and Mrs. ATKINSON for life successively, with
remainder to other persons in fee, under which limitation the present
defendants were claimants.

No fine was levied on the execution of this deed.  Mr. ATKINSON survived his
wife, and in the year 1854 conveyed the lands to the plaintiff for valuable
consideration.  The legal point was whether the deed of 1827 was void under
the statute of the 13th of Elizabeth, c. 5, as voluntary, or was well
executed by Mrs. Atkinson, under the power of appointment reserved to her in
the deed of 1827.

The Vice-Chancellor thought that the settlement of 1827 was voluntary, and
decreed in favour of the plaintiff.  From this the defendants, claiming
under the deed of 1827, appealed.

The plaintiff argued his own case in person.  Mr. OSBORNE appeared for the
defendants appealing.

The LORD CHANCELLOR, at the conclusion of the arguments, went fully into the
cases which had been cited 'pro' and 'con', and after expressing his great
regret to differ from the judgment of the learned Vice-Chancellor, said his
clear opinion was that Mrs. Atkinson, under the mortgage deed, possessed a
power of appointment which she had executed by the deed of 1827.

This view, of course, took the case out of the statute of Elizabeth, the
deed not being voluntary, and therefore the decree of the Court below must
be reversed and the bill dismissed with costs.  In addition, the plaintiff
must be ordered to give judgment in an action of ejectment which had been
brought against him, and be ordered to deliver up the indenture of 1827,
together with the estate and premises in question, to the defendants. -
Appeal allowed.
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