Acker v. Cecil National Bank

Bond, C. J., delivered the opinion of the Court. The question in this case and the next is whether the power or warrant in a promissory note authorizing an attorney to confess judgment for the amount due can be exe-r ² cised, and the judgment confessed and entered, under that authority, when the debtor has previously become insane. The question assumes that the maker was competent at the time of the making' of the note; insanity at that time would go to invalidate the note and the power in it from the beginning. It is a question of the applicability of the rule that incompetency of a principal or donor of a power revokes authority or power previously given.

In this first case, the note was made by Joel Acker under date of December 3rd, 1929, he was adjudged a lunatic on April 9th, 1930, and judgment on the note was confessed and entered on April 28th, 1930. Nearly a year later, on March 5th, 1931, the committee filed a motion to- strike out the judgment by confession because of the intervening lunacy, and the motion was overruled. The appeal is from the overruling of that motion. Exactly this question has never before been raised in this court.

But it has been considered by other courts and by text-writers, and the unanimous conclusion, we find, has been that the lunacy does not revoke the power previously given, and so- does not prevent execution of it, and confession and entry of the judgment. 3 Freeman, Judgments, (5th Ed.) 2724; 1 Black, Judgments (2nd Ed.), sec. 61a; Klein, Judgments by Confession, 52; McCarty, Confession of Judgments, sec. 136; 1 Mechem, Agency (2nd Ed.), sec. 679; 1 Elliot, Contracts, 689, note 20; 1 Beach, Contracts, sec. 18; Spencer v. Reynolds, 9 Pa. Co. Ct. R. 249; Johnson v. Nat. Bank, 320 Ill. 389, 393 , 151 N. E. 231 ; McCaul v. Thayer, 70 Wis. 138, 144 , 35 N. W. 353, 355 ; Davis v. Lane, 10 N. H. 156. “A mortgagee’s power of sale,” says Mechem, supra, “is not revoked by the after-occurring insanity of. the mortgagor, or a power of attorney to confess judgment given as part of the security for money loaned.” It is the -contention of the appellant that this conclusion can be reached only by departure from the principles governing agencies and powers, because under those principles the only exception to the rule that inco-mpetency revokes a power of attorney is to be found in a case in which the power given ³ is coupled with an interest in property to be dealt with in the exercise of the power, and in