Title 43, PROPERTY

No person is capable of creating a power who is not at the same time capable of granting some estate in the property to which the power relates. Source: CivC 1877, § 307; CL 1887, § 2823; RCivC 1903, § 330; RC 1919, § 399; SDC 1939, § 59.0412.

A power may be created only: (1) By a suitable clause contained in a grant of some estate in the real property to which the power relates or in an agreement to execute such a grant; or (2) By a devise contained in a will. Source: CivC 1877, § 309; CL 1887, § 2825; RCivC 1903, § 3…

A power may be vested in any person. Source: CivC 1877, § 308; CL 1887, § 2824; RCivC 1903, § 331; RC 1919, § 400; SDC 1939, § 59.0413.

The grantor in any conveyance may reserve to himself any power, beneficial or in trust, which he might lawfully grant to another; and every power thus reserved is subject to the provisions of this chapter in the same manner as if granted to another. Source: CivC 1877, § 310; CL 1…

Where the grantor in any conveyance reserves to himself for his own benefit an absolute power of revocation, such grantor is still to be deemed the absolute owner of the estate conveyed so far as the rights of creditors and purchasers are concerned. Source: CivC 1877, § 341; CL 1…

Where an absolute power of disposition not accompanied by any trust is given to the owner of a particular estate for life or years, such estate is changed into a fee, absolute in favor of creditors, purchasers, or encumbrancers, but subject to any future estates limited thereon i…

Where an absolute power of disposition not accompanied by any trust is given to any person to whom no particular estate is limited, such person also takes a fee subject to any future estate that may be limited thereon but absolute in favor of creditors, purchasers, and encumbranc…

No beneficial power, general or special, not specified and defined in this chapter can hereafter be created. Source: CivC 1877, § 349; CL 1887, § 2865; RCivC 1903, § 372; RC 1919, § 439; SDC 1939, § 59.0452.

In all cases where an absolute power of disposition is given not accompanied by any trust and no remainder is limited on the estate of the holder of the power, he is entitled to an absolute fee. Source: CivC 1877, § 338; CL 1887, § 2854; RCivC 1903, § 361; RC 1919, § 428; SDC 193…

Where a general and beneficial power to devise the inheritance is given to the owner of an estate for life or for years, he is deemed to possess an absolute power of disposition within the meaning of §§ 43-11-18 to 43-11-20 , inclusive. Source: CivC 1877, § 339; CL 1887, § 2855; …

Every power of disposition is deemed absolute by means of which the holder is enabled in his lifetime to dispose of the entire fee, in possession or in expectancy, for his own benefit. Source: CivC 1877, § 340; CL 1887, § 2856; RCivC 1903, § 363; RC 1919, § 430; SDC 1939, § 59.04…

A special and beneficial power is valid which is granted to the owner of a life estate in the property embraced in the power to make leases, commencing in possession during his life. Source: CivC 1877, § 342; CL 1887, § 2858; RCivC 1903, § 365; RC 1919, § 432; SDC 1939, § 59.0445…

A special and beneficial power to make leases of agricultural land for more than ten years or of municipal lots for more than ninety - nine years is void only as to the time beyond ten or ninety - nine years and authorizes leases for those terms or less. Source: CivC 1877, § 343;…

The power of the owner of a life estate to make leases is not transferable as a separate interest, but is annexed to his estate and will pass unless specially excepted by any grant of such estate. If specially excepted in any such grant, it is extinguished. Source: CivC 1877, § 3…

The power of the owner of a life estate to make leases may be released by him to any person entitled to a future estate in the property and is thereupon extinguished. Source: CivC 1877, § 345; CL 1887, § 2861; RCivC 1903, § 368; RC 1919, § 435; SDC 1939, § 59.0448.

A mortgage executed by the owner of a life estate having a power to make leases by virtue of any beneficial power, does not extinguish or suspend the power, but the power is bound by the mortgage in the same manner as the real property embraced therein. Source: CivC 1877, § 346; …

The effects on the power of a lien by mortgage such as is mentioned in § 43-11-27 are: (1) That the mortgagee is entitled to an execution of the power, so far as the satisfaction of his lien may require it; and (2) That any subsequent estate created by the owner in the execution …

Where a power to sell real property is given to a mortgagee or other encumbrancer in an instrument intended to secure the payment of money, the power is to be deemed a part of the security and vests in any person who by assignment becomes entitled to the money so secured to be pa…

The provisions of this chapter do not extend to a simple power of attorney to convey real property in the name of the owner and for his benefit. Source: CivC 1877, § 297; CL 1887, § 2813; RCivC 1903, § 320; RC 1919, § 389; SDC 1939, § 59.0402.

Every power, beneficial or in trust, is irrevocable unless an authority to revoke it is given or reserved in the instrument creating the power. Source: CivC 1877, § 311; CL 1887, § 2827; RCivC 1903, § 334; RC 1919, § 403; SDC 1939, § 59.0416.

A power is a lien upon the real property which it embraces from the time the instrument in which it is contained takes effect; except that against creditors, purchasers, and encumbrancers, in good faith and without notice, from any person having an estate in such real property, t…

Every trust power unless its execution is made expressly to depend on the will of the trustee is imperative and imposes a duty on the trustee, the performance of which may be compelled for the benefit of the parties interested. Source: CivC 1877, § 350; CL 1887, § 2866; RCivC 190…

Every special and beneficial power is liable to the claims of creditors in the same manner as other interests that cannot be reached by execution, and the execution of the power may be adjudged for the benefit of the creditors entitled. Source: CivC 1877, § 348; CL 1887, § 2864; …

The execution, in whole or in part, of any trust power, may be adjudged for the benefit of the creditors or assignees of any person entitled as one of the beneficiaries of the trust, to compel its execution when his interest is transferable. Source: CivC 1877, § 356; CL 1887, § 2…

A trust power does not cease to be imperative where the trustee has the right to select any and exclude others of the persons designated as the beneficiaries of the trust. Source: CivC 1877, § 351; CL 1887, § 2867; RCivC 1903, § 374; RC 1919, § 441; SDC 1939, § 59.0454.

A power to appoint which is exercisable by deed, by will, by deed or will, or otherwise, in whole or to any extent in favor of the donee of the power, his estate, his creditors, the creditors of his estate, or others, is releasable either with or without consideration, by written…

It is hereby declared that releases pursuant to § 43-11-36 are in accordance with the public policy of this state and are valid and effectual whether heretofore or hereafter made. Source: SDC 1939, § 59.0462 as enacted by SL 1945, ch 344 .

If an instrument pursuant to § 43-11-36 shall be executed and acknowledged in the manner provided for the execution and acknowledgment of instruments affecting real estate and filed for record and recorded in the office of the register of deeds of the county in which the donee of…

A power cannot be executed by any person not capable of disposing of real property. Source: CivC 1877, § 314; CL 1887, § 2830; RCivC 1903, § 337; RC 1919, § 406; SDC 1939, § 59.0419.

A power as the term is used in this chapter is an authority to do some act in relation to real property or to the creation or revocation of an estate therein or a charge thereon which the owner granting or reserving such power might himself perform for any purpose. Source: CivC 1…

A married woman may execute a power during her marriage without the concurrence of her husband unless otherwise prescribed by the terms of the power. Source: CivC 1877, § 315; CL 1887, § 2831; RCivC 1903, § 338; RC 1919, § 407; SDC 1939, § 59.0420.

When a married woman, entitled to an estate in fee, is authorized by a power to dispose of such estate during her marriage, she may, by virtue of such power, create any estate which she might create if unmarried. Source: CivC 1877, § 332; CL 1887, § 2848; RCivC 1903, § 355; RC 19…

Where a power is vested in several persons, all must unite in its execution; but in case any one or more of them is dead, the power may be executed by the survivor or survivors unless otherwise prescribed by the terms of the power. Source: CivC 1877, § 318; CL 1887, § 2834; RCivC…

A power can be executed only by a written instrument which would be sufficient to pass the estate or interest intended to pass under the power, if the person executing the power was the actual owner. Source: CivC 1877, § 317; CL 1887, § 2833; RCivC 1903, § 340; RC 1919, § 408; SD…

Where a power is confined to a disposition by grant, it cannot be executed by will even though the disposition is not intended to take effect until after the death of the person executing the power. Source: CivC 1877, § 320; CL 1887, § 2836; RCivC 1903, § 343; RC 1919, § 411; SDC…

Where a power to dispose of real property is confined to a disposition by devise or will, the instrument of execution must be a will duly executed according to the provisions of the law relating to wills. Source: CivC 1877, § 319; CL 1887, § 2835; RCivC 1903, § 342; RC 1919, § 41…

Where the author of a power has directed or authorized it to be executed by an instrument which would not be sufficient in law to pass the estate, the power is not void but its execution is to be governed by the rules prescribed in §§ 43-11-44 and 43-11-45 . Source: CivC 1877, § …

Where the author of a power has directed any formalities to be observed in its execution, in addition to those which would be sufficient to pass the estate, the observance of such additional formalities is not necessary to a valid execution of the power. Source: CivC 1877, § 322;…

Every instrument except a will, in execution of a power, even though the power is one of revocation only, is to be deemed a conveyance within the meaning of chapter 43-28 relating to recording transfers. Source: CivC 1877, § 328; CL 1887, § 2844; RCivC 1903, § 351; RC 1919, § 419…

Where the conditions annexed to a power are merely nominal and evince no intention of actual benefit to the party to whom or in whose favor they are to be performed, they may be wholly disregarded in the execution of the power. Source: CivC 1877, § 323; CL 1887, § 2839; RCivC 190…

The author of a power as the term is used in this chapter is the person by whom a power is created, whether by grant or devise; and the holder of a power is the person in whom the power is vested, whether by grant, devise, or reservation. Source: CivC 1877, § 299; CL 1887, § 2815…

With the exceptions contained in §§ 43-11-46 to 43-11-49 , inclusive, the intentions of the author of a power as to the mode, time, and conditions of its execution must be observed, subject to the power of a circuit court to supply a defective execution in the cases provided in §…

When the consent of a third person to the execution of a power is requisite, such consent must be expressed in the instrument by which the power is executed or be certified in writing thereon. In the first case the instrument of execution, in the second, the certificate, must be …

Where the consent of several persons to the execution of a power is requisite, all must consent thereto; but in case any one or more of them is dead, the consent of the survivors is sufficient, unless otherwise prescribed by the terms of the power. Source: CivC 1877, § 326; CL 18…

A disposition or charge by virtue of a power more extensive than was authorized thereby is not therefore void; but every estate or interest so created so far as it is embraced by the terms of the power, is valid. Source: CivC 1877, § 329; CL 1887, § 2845; RCivC 1903, § 352; RC 19…

The period during which the absolute right of alienation may be suspended by an instrument in execution of a power must be computed not from the date of the instrument but from the time of the creation of the power. Source: CivC 1877, § 330; CL 1887, § 2846; RCivC 1903, § 353; RC…