97 Ga. 563 | Ga. | 1895
The plaintiff in error executed to the defendant in error certain promissory notes, and a mortgage to secure the same, which mortgage contained a provision authorizing the mortgagee to sell the mortgaged property for the payment of the debt if not paid when due, and a further provision that “the power and agency aforesaid is coupled with an interest, and is hereby made irrevocable, even by death.” The notes became due and were not paid, and the mortgagee, in pursuance of the power given by the mortgage, advertised the mortgaged property for sale; whereupon the mortgagor notified him that the power of sale was revoked and cancelled. Subsequently the mortgagor filed a petition for an injunction against the sale, basing his petition on the ground that he had revoked the power of sale. The court refused the injunction, and to this ruling the petitioner excepted.
Generally an agency is revocable at the will of the principal, and it is ipso facto revoked by his death. To the rule that an agency is revoked by the death of the principal there is but one exception; and that exception exists where the power of the agent is coupled with an interest. By this is meant an interest in the thing itself, that is to say, in. the subject on which the power is to be exercised, and not merely in that which is produced by the exercise of the power. (Wilkins v. McGehee, 86 Ga. 766, and authorities there cited.) The power is irrevocable in the lifetime of the principal where it is given for a valuable consideration, and forms a part of a contract made as security for a debt, and is conferred for the purpose of effectuating the security, even though not coupled with an interest in the thing itself;
In the case of an ordinary agency, there is generally no reason why the principal should be precluded from revoking the agency. The agent is the servant of the principal, and the law compels no man to employ another against his will or to continue to repose trust and confidence in another after he has seen fit to withdraw it. If the revocation is unreasonable and constitutes a breach of contract whereby the agent sustains injury, the law affords him redress in an action for damages. (Code, §2183.) In this case, however, the relation of the parties was not merely that of principal and agent. The power in question concerned the disposition of property upon which the person on whom the power was conferred held a lien as security for a debt, and was a part of the contract creating the security, and
We hold, therefore, that the court below did not err in refusing the injunction prayed for. Judgment affirmed.