Hosmer, Ch. J.
Jurisdiction is vested in this Court of all matters brought here, by way of error, from the judgments or decrees of any superior court, wherein the rules of law or principles of equity, appear from the files, records or exhibits of said court to have been mistakenly or erroneously adjudged and determined; (Stat. 137.) but in this case, from the files, records and exhibits of said court, no error is apparent. The [562]*562powers of attorney appear from the finding of the judge, and not from the records of the court, and the enquiry raised is as collateral to the record, as if facts had been found to try the question whether testimony had been unduly admitted.
I have been led to notice this irregularity, in order to prevent its happening in future, and not to avoid any examination of the point intended for determination.
The decision of the superior court was correct, on two distinct grounds. 1. The power of attorney to Messrs. Ingersoll and Hitchcock, was not coupled with an interest, and therefore was revocable. 2. If it had been, it was revocable, by the law of this state, pro tanto; that is, so far relates to a prosecution of suits in Mrs. Mansfield’s name.
1. As a general legal truth, it is indisputable, that a naked power or authority, is revocable at pleasure; (Co. Litt. 112. b. 113. a. Shep. Touch. 429.) and that a power or authority coupled with an interest, is irrevocable. Bergen & al. v. Bennett, 1 Caines’ Ca. Err. 15.
The enquiry before the Court, is, whether the power in question was coupled with an interest; and to decide correctly on this subject, it is necessary that we clearly understand what is the legal meaning of this expression.
A naked power exists when authority is given to a stranger to dispose of an interest, in which he had not before, nor has by the instrument creating the power, any estate whatever. But when power is given to a person, who derives under the instrument creating the power, or otherwise, a present or future interest in the subject over which the power is to be exercised, it is then a power coupled with an interest. Bergen & al. v. Bennett, 1 Caines’ Ca. Err. 1. The case of Hunt v Rousmanier, 8 Wheat. Rep. 174. and the opinion delivered by Ch. J. Marshall, furnish the clearest view and illustration of this subject. Rousmanier, the defendant’s intestate, borrowed a sum of money of Hunt, for which he gave him two promissory notes, and executed a power of attorney, authorizing him to make and execute a bill of sale of three-fourths of the brig Nereus to himself, with a proviso that the power was given for collateral security of the notes, and was to be void on their payment Rousmanier died insolvent; and it became a question, whether, by his death, the preceding power was revoked. The general principle was first laid down, by Ch. J. Marshall, that “as the power of one man to act for another, depends on [563]*563the will and licence of that other, the power ceases, when the will or permission is withdrawn.” “But,” he proceeded, “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.” He next remarks, that “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, he enquires “what is meant by the expression a power coupled with an interest." To this he replies, by the enquiry, “Is it an interest in the subject on which the power is to be exercised, or is it an interest in that which is produced by the exercise of the power?" “We hold it,” said he, “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 principle contained in this case, is, that 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; and to this effect are all the cases cited by the plaintiff’s counsel. Walsh v. Whitcomb, 2 Esp. Rep. 565. was a case where a deed of assignment was given, and a power of attorney to effectuate it. In Raymond v. Squire, 11 Johns. Rep. 47. there was what the court considered an assignment of the covenants in a deed, and a power of attorney to sue upon them. In Jackson d. King & al. v. Burtis & al. 14 Johns. Rep. 391. executors, who executed a deed, were devisees, and had a direct interest in the sale. Their power was coupled with the interest they had as devisees. So in Jackson d. Henderson v. Davenport, 18 Johns. Rep. 295. lands were granted, and coupled with this, was a power of attorney to grant the lands again, if necessary.
There is a class of cases, to which reference was made in the argument, in which it is decided, that a power is not naked, in the sense of Lord Coke’s general rule, which is coupled with other trusts and duties, that require the execution of the power to sell. Sugden on Powers 141. Lessee of Zebach & al. v. [564]*564Smith & al. 3 Binn. 69. The cases of Osgood & al. v. Franklin & al. 2 Johns. Chan. Rep. 1. and Franklin & al. v. Osgood & al. 14 Johns. Rep. 527. illustrate the principles contained in the cases alluded to. In these cases, it was determined, that if executors, who were empowered, by last will, to sell the real estate of the testator, are vested with a legal or equitable interest in the estate; or are charged with a trust, the execution of which depends on the sale; the power survives, and may be executed by one of them. But this class of decisions, unless the first attornies of Mrs. Mansfield had a power coupled with an interest, are entirely inapplicable to the case before us. There is no ground of pretence, that they were charged with a trust, the execution of which depended on the exercise of the authority delegated to them. They must stand or fall, by the interest they have, coupled with the powers, in the instrument of attorney.
The subject of discussion came under the consideration of this Court, in Peabody v. Harvey, 4 Conn. Rep. 119. One Bushnell directed the defendant to collect a promissory note in his hands, and to pay it to his creditors. After this, Bushnell ordered the payment of the same money to one Hyde; which accordingly was made. The first direction, the court determined, was a naked power, uncoupled with interest. It was considered as a gratuitous power to collect and pay the money, and did not amount even to an equitable assignment of the property.
I come now to consider the power, which the plaintiff claims to be irrevocable.
As it is not pretended, that before the execution of the power of attorney to Messrs. Ingersoll and
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Hosmer, Ch. J.
Jurisdiction is vested in this Court of all matters brought here, by way of error, from the judgments or decrees of any superior court, wherein the rules of law or principles of equity, appear from the files, records or exhibits of said court to have been mistakenly or erroneously adjudged and determined; (Stat. 137.) but in this case, from the files, records and exhibits of said court, no error is apparent. The [562]*562powers of attorney appear from the finding of the judge, and not from the records of the court, and the enquiry raised is as collateral to the record, as if facts had been found to try the question whether testimony had been unduly admitted.
I have been led to notice this irregularity, in order to prevent its happening in future, and not to avoid any examination of the point intended for determination.
The decision of the superior court was correct, on two distinct grounds. 1. The power of attorney to Messrs. Ingersoll and Hitchcock, was not coupled with an interest, and therefore was revocable. 2. If it had been, it was revocable, by the law of this state, pro tanto; that is, so far relates to a prosecution of suits in Mrs. Mansfield’s name.
1. As a general legal truth, it is indisputable, that a naked power or authority, is revocable at pleasure; (Co. Litt. 112. b. 113. a. Shep. Touch. 429.) and that a power or authority coupled with an interest, is irrevocable. Bergen & al. v. Bennett, 1 Caines’ Ca. Err. 15.
The enquiry before the Court, is, whether the power in question was coupled with an interest; and to decide correctly on this subject, it is necessary that we clearly understand what is the legal meaning of this expression.
A naked power exists when authority is given to a stranger to dispose of an interest, in which he had not before, nor has by the instrument creating the power, any estate whatever. But when power is given to a person, who derives under the instrument creating the power, or otherwise, a present or future interest in the subject over which the power is to be exercised, it is then a power coupled with an interest. Bergen & al. v. Bennett, 1 Caines’ Ca. Err. 1. The case of Hunt v Rousmanier, 8 Wheat. Rep. 174. and the opinion delivered by Ch. J. Marshall, furnish the clearest view and illustration of this subject. Rousmanier, the defendant’s intestate, borrowed a sum of money of Hunt, for which he gave him two promissory notes, and executed a power of attorney, authorizing him to make and execute a bill of sale of three-fourths of the brig Nereus to himself, with a proviso that the power was given for collateral security of the notes, and was to be void on their payment Rousmanier died insolvent; and it became a question, whether, by his death, the preceding power was revoked. The general principle was first laid down, by Ch. J. Marshall, that “as the power of one man to act for another, depends on [563]*563the will and licence of that other, the power ceases, when the will or permission is withdrawn.” “But,” he proceeded, “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.” He next remarks, that “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, he enquires “what is meant by the expression a power coupled with an interest." To this he replies, by the enquiry, “Is it an interest in the subject on which the power is to be exercised, or is it an interest in that which is produced by the exercise of the power?" “We hold it,” said he, “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 principle contained in this case, is, that 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; and to this effect are all the cases cited by the plaintiff’s counsel. Walsh v. Whitcomb, 2 Esp. Rep. 565. was a case where a deed of assignment was given, and a power of attorney to effectuate it. In Raymond v. Squire, 11 Johns. Rep. 47. there was what the court considered an assignment of the covenants in a deed, and a power of attorney to sue upon them. In Jackson d. King & al. v. Burtis & al. 14 Johns. Rep. 391. executors, who executed a deed, were devisees, and had a direct interest in the sale. Their power was coupled with the interest they had as devisees. So in Jackson d. Henderson v. Davenport, 18 Johns. Rep. 295. lands were granted, and coupled with this, was a power of attorney to grant the lands again, if necessary.
There is a class of cases, to which reference was made in the argument, in which it is decided, that a power is not naked, in the sense of Lord Coke’s general rule, which is coupled with other trusts and duties, that require the execution of the power to sell. Sugden on Powers 141. Lessee of Zebach & al. v. [564]*564Smith & al. 3 Binn. 69. The cases of Osgood & al. v. Franklin & al. 2 Johns. Chan. Rep. 1. and Franklin & al. v. Osgood & al. 14 Johns. Rep. 527. illustrate the principles contained in the cases alluded to. In these cases, it was determined, that if executors, who were empowered, by last will, to sell the real estate of the testator, are vested with a legal or equitable interest in the estate; or are charged with a trust, the execution of which depends on the sale; the power survives, and may be executed by one of them. But this class of decisions, unless the first attornies of Mrs. Mansfield had a power coupled with an interest, are entirely inapplicable to the case before us. There is no ground of pretence, that they were charged with a trust, the execution of which depended on the exercise of the authority delegated to them. They must stand or fall, by the interest they have, coupled with the powers, in the instrument of attorney.
The subject of discussion came under the consideration of this Court, in Peabody v. Harvey, 4 Conn. Rep. 119. One Bushnell directed the defendant to collect a promissory note in his hands, and to pay it to his creditors. After this, Bushnell ordered the payment of the same money to one Hyde; which accordingly was made. The first direction, the court determined, was a naked power, uncoupled with interest. It was considered as a gratuitous power to collect and pay the money, and did not amount even to an equitable assignment of the property.
I come now to consider the power, which the plaintiff claims to be irrevocable.
As it is not pretended, that before the execution of the power of attorney to Messrs. Ingersoll and Hitchcock, they had any interest in the estate confided to their care, they of consequence have it devolved on them to shew, that the instrument constituting them attornies conferred on them an interest in the property, so that their power was coupled with an interest. On a construction of the instrument, according to the form of its expressions, and the object of the parties, I see no ground for this position. It professes to have been executed, in consideration of a preceding indebtedness; but I am not aware, that this gives any aid in its construction. A power without consideration is equally valid as with one; and the expression means no more than that the indebtedness was the inducement operating on Mrs. Mansfield in conferring the power in question.
[565]*565We must look to other parts of the instrument to ascertain whether it transferred any interest.
On the clause empowering the attornies to sue, prosecute and discharge, no stress has been, or can be, laid.
They,however, were authorized to sell and convey the estate mentioned in the power, in the name of their principal. It has been established law, from before the days of Sir Edward Coke to the present time, that a power to sell and convey, is a naked power, and revocable. Co. Litt. 113. a. 112. b. 181. b. Perk. sect. 541, 542. Shep. Touch. 429. Pow. Dev. 292. 310. Osgood & al. v. Franklin & al. 2 Johns. Chan. Rep. 19, 20. Lancaster v. Thornton, 2 Burr. 1027. Franklin & al. v. Osgood & al. 14 Johns. Rep. 553.
New-Haven, November, 1827.
Mansfield
v.
Mansfield.
The only remaining clause supposed to confer an interest, declares, that “after paying themselves all dues to them, or either of them, or to Seth P. Staples, Esq., and all expenses,” the attornies are to account for the residue. This expression has been supposed to show, that the power created an interest in the estate to which it related, in security of the indebtedness before-mentioned; but I am of a different opinion. The instrument contains no words of conveyance or of assignment; but is a simple power to sell, convey and account. The object of the expression last-mentioned, was not to transfer the property, or to give a lien upon it, but to impart the privilege of a set-off, if the estate should be sold, and the money collected; nor can it, with any propriety, be contended, that the words express or imply any other meaning. The power in Hunt v. Rousmanier before cited, which the court adjudged to be a naked power not coupled with an interest, admitted of a different construction, with by far more force, than the one which the plaintiff has exhibited.
2. In this state, a power coupled with an interest is revocable, so far as relates to the prosecutions of suits in the name of a person, who has given a letter of attorney. The law has long been settled, by uniform practice and judicial determinations. Coleman v. Wolcott, 4 Day 6. Bulkley & al. v. Landon & al. 3 Conn. Rep. 76. In the case of an assigned note, there are both an assignment of interest and a power of attorney to sue; in other words, there is a power coupled with an interest. But notwithstanding this, it is a legal truth familiar to every lawyer, that the assignor may withdraw the action commenced on such note, in his name; and that the right to do [566]*566this is so common and well established as to be incapable of controversy. Had Mrs. Mansfield assigned, for a valuable consideration, all her bonds and notes, the suits upon them she might withdraw, upon the unquestionable principle, that in Connecticut, all actions are supposed to be under the controul of the party to the record. 1 Swift’s Dig. 437. What power to prosecute, more irrevocably, can be stated or imagined?
The plaintiff has adduced cases to show, that in the court of Common Pleas in Westminster-Hall, and in the neighbouring state of New-York, a different rule prevails; (Legh v. Legh, 1 Bos. & Pull. 447. Andrews v. Beecker, 1 Johns. Ca. 411.-Wardell v. Eden, 1 Johns. Rep. 531 n. (a) Littlefield v. Storey, 3 Johns. Rep. 421. Anderson & al. v. Van Alen, 12 Johns. Rep. 343.) and that they will not permit any interposition, in a suit, by the assignor. This, undoubtedly, is good law in the courts, which have given it their sanction; but here it is of no avail. We have a law of our own, long established, and on mature deliberation, affirmed by this Court. By this law, the determination of the superior court, was both authorized and required.
Lanman and Daggett, Js. were of the same opinion.