21 U. S. 174

U.S. Supreme Court

Hunt v. Rousmnanier's Administrators, 21 U.S. 8 Wheat. 174 174 (1823)

Hunt v. Rousmnanier's Administrators

21 U.S. (8 Wheat.) 174


A letter of attorney may, in general, be revoked by the party making it, and is revoked by his death.

Where it forms a part of a contract and is a security for the performance of any act, it is usually made revocable in terms, or if not so made, is deemed irrevocable in law.

But a power of attorney, though irrevocable during the life of the party, becomes (at law) extinct by his death.

But if the power be coupled with an interest, it survives the person giving it, and may be executed after his death.

To constitute a power coupled with an interest, there must be an interest in the thing itself, and not merely in the execution of the power.

The general rule that a power of attorney though irrevocable by the party during his life, is extinguished by his death is not affected by the circumstance that testamentary powers are executed after the death of the testator; the law in allowing a testamentary disposition of property not only permits a will to be considered as a conveyance, but gives it an operation which is not allowed to deeds which have their effect during the life of the person who executes them.

How far a court of equity will compel the specific execution of a contract intended to be secured by an irrevocable power of attorney which was revoked by operation of law on the death of the party.

The general rule, both at law and in equity, is that parol testimony is not admissible to vary a written instrument.

But in cases of fraud and mistake, courts of equity will relieve.

It seems that a court of equity will relieve in a case of mistake of law merely. clubjuris

Page 21 U. S. 175

The original bill filed by the appellant Hunt stated that Lewis Rousmanier, the intestate of the defendants, applied to the plaintiff, in January, 1820, for the loan of $1,450, offering to give, in addition to his notes, a bill of sale or a mortgage of his interest in the brig Nereus, then at sea, as collateral security for the repayment of the money. The sum requested was lent, and on 11 January the said Rousmanier executed two notes for the amount, and on the 15th of the same month he executed a power of attorney authorizing the plaintiff to make and execute a bill of sale of three-fourths of the said vessel to himself or to any other person and, in the event of the said vessel, or her freight, being lost, to collect the money which should become due on a policy by which the vessel and freight were insured. This instrument contained also a proviso reciting that the power was given for collateral security for the payment of the notes already mentioned, and was to be void on their payment, on the failure to do which the plaintiff was to pay the amount thereof and all expenses out of the proceeds of the said property, and to return the residue to the said Rousmanier.

The bill further stated that on 21 March, 1820, the plaintiff lent to the said Rousmanier the additional sum of $700, taking his note for payment and a similar power to dispose of his interest in the schooner Industry, then also at sea. The bill then charged that on 6 clubjuris

Page 21 U. S. 176

May, 1820, the said Rousmanier died insolvent, having paid only $200 on the said notes. The plaintiff gave notice of his claim, and, on the return of the Nereus and Industry, took possession of them, and offered the intestate's interest in them for sale. The defendants forbade the sale, and this bill was brought to compel them to join in it.

The defendants demurred generally, and the court sustained the demurrer, but gave the plaintiff leave to amend his bill.

The amended bill stated that it was expressly agreed between the parties that Rousmanier was to give specific security on the Nereus and Industry, and that he offered to execute a mortgage on them. That counsel was consulted on the subject, who advised that a power of attorney such as was actually executed should be taken in preference to a mortgage, because it was equally valid and effectual as a security and would prevent the necessity of changing the papers of the vessels or of taking possession of them on their arrival in port. The powers were accordingly executed, with the full belief that they would and with the intention that they should give the plaintiff as full and perfect security as would be given by a deed of mortgage. The bill prayed that the defendants might be decreed to join in a sale of the interest of their intestate in the Nereus and Industry or to sell the same themselves and pay out of the proceeds the debt due to the plaintiff. To this amended bill also the defendants demurred, and on argument the demurrer was sustained clubjuris

Page 21 U. S. 177

and the bill dismissed. From this decree the plaintiff appealed to this Court.

The cause was argued at the last term. clubjuris

Page 21 U. S. 201