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La Neyreda. 8 W. This is not all. Immediately after the ostensible sale to Fran. cesche, The Nereyda was put in command of Childs, an American citizen, who was an utter stranger to him, as far as we have any means of knowledge, and sailed for Baltimore, the home port of The Irresistible, and the domicile of Daniels and Childs. There is no evidence that she has ever revisited Margaritta, and there is positive evidence that she has, for the last three years, been in habits of intimacy with the ports of the United States. Where are the owner's instructions, given to the master on his departure for Baltimore? Where is the documentary evidence of Francesche's ownership?
Where are the proofs of his disbursements for the vessel 1 * 172 * during her subsequent voyages ? From the time of her
voyage to Baltimore, she has remained under the manage. ment of Daniels, or Childs, or some other apparent agent of Daniels. She has undergone extensive repairs, her rig has been altered, heavy expenses have been incurred, and a new master has been appointed to her. Under whose authority have all these acts been done? Where are the orders of Francesche for these acts ? Daniels has constantly been connected with the vessel ; he has superintended her repairs; he or his agents have paid the bills; he is the reputed owner of the vessel ; and he has been consulted as to the material operations. How can all these things be, and yet the real owner be a foreigner, a Venezuelian? How can he be presumed to lie by, without any apparent interposition in the destiny of his own vessel ?
There are some other extraordinary circumstances in the case. The Nereyda arrived at Margaritta under the command of Childs, as prize-master; and in a few days afterwards, Daniels arrived there with The Irresistible. The crew of the latter vessel run away with her; and Daniels then sailed in The Nereyda, in pursuit of the privateer, and of course on a voyage for his own peculiar benefit. How is this reconcilable with the supposition of a real sale to Francesche? What interest had the latter in regaining The Irresistible, or subduing a revolted crew? Why should his vessel, after that object was accomplished, have gone to Baltimore? Why should he intrust to
strangers, for a voyage in which he had no apparent inter[ * 173 ] est, * so valuable a property ? If he made any contract for
that voyage, why is not that contract produced ? These are questions which it seems very difficult to answer in any manner useful to the asserted proprietary interest of Francesche. Yet the facts, to which allusion is here made, are drawn from the further proof of the claimant; and this further proof, it is not immaterial to observe, comes not from Margaritta, where Francesche resided, and for aught that appears, still resides; but from La Guayra, with which he is not shown to have any immediate connection.
Hunt v. Rousmanier's Administrators. 8 W.
Looking, therefore, to all the circumstances of the case, the fact of the unchanged possession of the captors, the habits of the vessel, the apparent control of the property by Daniels, the utter absence of all proper documentary proofs of ownership, instructions, disbursements, and even connection with her on the part of the claimant, we think that there is the strongest reasons to believe that no real sale ever took place, and that the property remains still in the original captors, unaffected by the asserted transfer. The positive evidence is completely borne down by the strong and irresistible current of circumstantial evidence which opposes it.
Upon both grounds, therefore, namely, the omission to produce the original libel or account for its non-production, and the insufficiency of the proofs of proprietary interest, the court are of opinion that the cause must be decided against the asserted claim.
If this be so, then, as it is clear that the original * outfit [*174 ] of the privateer Irresistible was illegal, upon the principles .. already established by this court, the property of The Nereyda remains in his Majesty the King of Spain, and ought to be restored accordingly. The decree of the circuit court is therefore reversed, and The Nereyda is ordered to be restored to the libellant, with costs of suit.
Decree reversed. 11 P. 351.
Hunt v. ROUSMANIER'S ADMINISTRATORS.
8 W. 174. A naked power inter viros to convey property not coupled with an interest, though irrevocable by the donor of the power, by reason of a contract not to revoke it, necessarily ceases
at his death. By the phrase "coupled with an interest," is not meant an interest in the exercise of the power,
but an interest in the property on which the power is to operate.. It being admitted by the demurrer to a bill in equity, that certain powers of attorney were given and received under the belief that they were, and with the intention that they should create, a specific lien and security upon certain vessels, and the donor of the powers having died, and the creditor having brought his bill to have the agreement for security executed, the demurrer was overruled and the defendant ordered to answer.
* Appeal from the circuit court of the United States for [*175 1 the district of Rhode Island.
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 the 11th of January, the said Rousmanier executed two notes for the amount, and on the Hunt v. Rousmanier's Administrators. 8 W. 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 the 21st of 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 [* 176] charged, that on the *6th of May, 1820, the said Rous
manier 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, and the [ *177 ] * bill dismissed. From this decree, the plaintiff appealed to
this court. The cause was argued at the last term.
Hunt v. Rousmanier's Administrators. 8 W. Wheaton, for the appellant.
* The cause was continued to the next term for advise- [ * 201 ] ment.
MARSHALL, C. J., delivered the opinion of the court.
The counsel for the appellant objects to the decree of the circuit court on two grounds. He contends,
1. That this power of attorney does, by its own operation, entitle the plaintiff, for the satisfaction of his debt, to the interest of Rousmanier in The Nereus and The Industry.
2. On if this be not so, that a court of chancery will, the conveyance being defective, lend its aid to carry the contract into execution, according to the intention of the parties.
We will consider, 1. The effect of the power of attorney.
This instrument contains no words of conveyance or of assignment, but is a simple power to sell and convey. As the power of one man to act for another depends on the will and license of that other, the power ceases when the will, or this permission, is withdrawn. The general rule, therefore, is that a letter of attorney may, at any time, be revoked by the party who makes it; and is revoked by his death. But this general rule, which results from the nature of the act, has sustained some modification. Where a letter of attorney forms a part of a contract, and is a security for money, or for the performance of any act which is deemed valuable, it is generally made irrevocable in terms, or if not so, is deemed irrevocable in * law, 2 Esp. N. P. Rep. 565. Although a [ * 202 ] letter of attorney depends, from its nature, on the will of the person making it, and may, in general, be recalled at his will ; yet if he binds himself for a consideration in terms, or by the nature of his contract, not to change his will, the law will not permit him to change it. Rousmanier, therefore, could not, during his life, by any act of his own, have revoked this letter of attorney. But does it retain its efficacy after his death? We think it does not. We think it well settled that a power of attorney, though irrevocable during the life of the party, becomes extinct by his death.
This principle is asserted in Littleton, section 66, by Lord Coke, in his commentary on that section, 52 b, and in Willes's Reports, 105, note, and 565. The legal reason of the rule is a plain one. It seems founded on the presumption, that the substitute acts by virtue of the authority of his principal, existing at the time the act is per
Hunt v. Rousmanier's Adininistrators. 8 W.
formed; and on the manner in which he must execute his authority, as stated in Coombes's case, 9 Co. 766. In that case, it was resolved that “when any has authority as attorney to do any act, he ought to do it in his name who gave the authority.” The reason of this resolution is obvious. The title can regularly pass out of the person in whom it is vested only by a conveyance in his own name; and
this cannot be executed by another for him, when it could [ * 203 ] not in law be executed by himself. A conveyance * in the
name of a person who was dead at the time, would be a manifest absurdity.
This general doctrine, that a power must be executed in the name of a person who gives it, a doctrine founded on the nature of the transaction, is most usually engrafted in the power itself. Its usual language is, that the substitute shall do that which he is empowered to do in the name of his principal. He is put in the place and stead of his principal, and is to act in his name. This accustomed form is observed in the instrument under consideration. Hunt is constituted the attorney, and is authorized to make, and execute, a regular bill of sale in the name of Rousmanier. Now, as an authority must be pursued, in order to make the act of the substitute the act of the prin. cipal, it is necessary that this bill of sale should be in the name of Rousmanier; and it would be a gross absurdity, that a deed should purport to be executed by him, even by attorney, after his death ; for, the attorney is in the place of the principal, capable of doing that alone which the principal might do.
This general rule, that a power ceases with the life of the person giving it, admits of one exception. If a power be coupled with an “ interest,” it survives the person giving it, and may be executed after his death.
As this proposition is laid down too positively in the books to be controverted, it becomes necessary to inquire what is meant by the
expression, “ a power coupled with an interest?” Is it an [ * 204 ] interest in the subject on which the power is to be * exer
cised, or is it an interest in that which is produced by the exercise of the power? We hold it to be clear that the interest which can protect a power after the death of a person who creates it, must be an interest in the thing itself. In other words, the power must be engrafted on an estate in the thing.
The words themselves would seem to import this meaning. “A power coupled with an interest" is a power which accompanies or is connected with an interest. The power and the interest are united in the same person. But if we are to understand by the word " interest” an interest in that which is to be produced by the exercise of the