Coney v. Sanders , 28 Ga. 511 ( 1859 )

By the Court.

Benning, J.,

delivering the opinion.

Was the charge right? We think that it was.

By the common law, a power of attorney is revoked by the death of its maker, unless it be a power coupled with an interest.

[1.] In order that a power may he a power coupled with an interest, the agent must have an interest derived from the power, or, from something else, in the property or thing in reference to which the power was given; that he paid a valuable consideration for the power, will not be enough. — Hunt vs. Rousmanier’s adm’rs, 8 Wheat. 174.

Neither of these.propositions, I believe, was disputed. But it was insisted, that the case fell within the fifth section of the act of 1785, “to render easy the mode of conveying lands,” &c., a section -which provides, that all sales of lands, made under such powers as it refers to, shall be good, if made before the agent “ shall have ” had “ due notice of a countermand, revocation, or death of the constituent.” — Cobb, 165.

[2.] But, We think, that this section refers only to powers made in other States than Georgia. It is clear, that the fourth section does; and a little study of the fifth will show, that it means to refer to the same powers to which the fourth had referred. The one section is connected with the other; the object of the fourth is to declare that powers, among other things, made in other States, if proved in a particular way, shall be taken as sufficiently proved. The object of the fifth is, to declare that sales made under those powers shall be valid, if made before the revocation of the powers.

This has been, we think, the uniform construction of the section.

In our opinion, then, it is not true, that the power of attorney in the present case, falls within the section. Consequently, we think,'that the charge of the court was right.

As to the refusal to strike out the amendment, it is sufficient to say, that there was an agreement, in writing, between the parties, by which leave to amend the declaration was given to the plaintiffs.

Judgment affirmed.