Boykin v. O'Hara

The judgment of the court was pronounced by Siideul, J. The appeal in this case is devolutive. It was granted upon motion in open court, and, by consent of parties, made returnable on the first Monday of January, 1851. The transcript was filed on the 20th of January, 1851; and on the 25th of January, an application was made in writing by O'Hara for the dismissal of the appeal. The first ground of the application is, that Lang and Lisette are not legally before this court, because no appeal bond in their favor was given by the appellant. Lang was the surety on the injunction bond, and was condemned, in solido, with Boykin, plaintiff in injunction, to pay damages to O'Hara. Lisette was the sheriff who made the seizure under fieri facias, which gave rise to the injunction; he was sued as a co-defendant with O'Hara, and damages were claimed from him personally for having made an unlawful seizure. Lang, who must be considered as one of the parties who consented to the order of appeal, has waived any objection to the sufficiency of the appeal bond, by appearing in this court. If we consider Lisette as not before us, so far as he is individually concerned touching the claim for damages, still his absence does not prevent a review of the judgment of the district court as between Boykin and O’Hara. The objection, that the court below did not fix the amount of the bond for a devolutive appeal, is unsupported by the record. The amount of the bond was fixed in the consent order for a devolutive appeal. The remaining objections to the sufficiency of the surety on the appeal bond comes too late. See O’Reilly v. McLeod, 2d Ann. 138. The facts material in the consideration of the merits of this case are as follows : John A. Boykin and Edward M. Boykin, residents of South Carolina, had a sugar plantation in this State. In December, 1848, Boyken gave O'Hara a draft, payable in the ensuing January, on Fellowes and Johnson, merchants at New Orleans, for $556 80, for mason work done on the plantation by him. On the 9th February, 1849, John A. and Edward M. Boykin executed in South Carolina a power of attorney of the following tenor: “ Know all men by these presents, that we the undersigned, John A. Boykin and Edward M. Boykin, have nominated, constituted and appointed, and by these presents do nominate, constitute and appoint Duncan McRéa Lq,ng, of Bayou Black, parish of Terrebonne, in the State of Louisiana, our true and lawful attorney; and that the said Duncan McRea Lang is fully authorized and empowered to perform all such acts as may be necessary for the proper management of the plantation and negroes of the said John A. and Edward M. Boykin, situate and being upon the Bayou Black, parish of Terrebonne, in the State of Louisiana; and we, the [116] undersigned, do fully authorize the said Duncan McRea Lang to perform any act necessary for the well being and security of the said property, to wit, to contract any debts necessary for the support and use of the said plantation and negroes, and to draw drafts for any such necessary purposes, payable at such time and place as may seem most expedient to him, and to pay any such debts, and to meet any such draft, from any proceeds of said plantation as may be at any time in his hands ; and the undersigned do hold themselves bound by such act, as though they themselves had made it: hereby authorizing and approving any such act upon the part of the said Duncan McRea Lang, and any arrangement or agreement made by the said Duncan McRea Lang for the purpose of better securing any debt or debts already contracted, and now held against the said property for any such necessary purpose, shall be considered binding against it: hereby ratifying and confirming all our said attorney may do in pursuance of these premises. In witness whereof we have hereunto set our hands and affixed our seals this ninth of February, eighteen hundred and forty-nine. (Signed) [l.s.] John A. Boykin. Edwaed M. Boykin. Signed, sealed and delivered in the presence of (Signed) Euwaed B. Laño. B. H. Matheson.” In March, 1849, O'Hara brought suit against John A. Boykin upon this draft which had been protested for non-payment. Service of citation was acknowledged by Duncan Lang as his agent; and in the succeeding April, judgment was rendered against Boykin upon a confession by Lang, acting as agent under the power above mentioned. Upon this judgment a fien facias was issued ; and in December, 1849, a seizure was made of certain sugar and molasses, the product of the Boykin plantation; whereupon, Boykin brought an action to annul the judgment, and also obtained an injunction. It is quite clear, that in the earlier portion of the instrument there is nothing which would in any degree sanction a confession of judgment. "We must look for the authority, if conferred at all, in the closing clause of the power, in which the principals say, “ any arrangement or agreement made by the said Duncan McRea Lang for the purpose of better securing any debt or debts already contracted, and now held against the said property for any such necessary purpose, shall be considered binding against it.” It is not very clear that the constituents intended more than to sanction agreements for security already made. But supposing the authorization to be prospective, the largest sense which the words will permit is, a power to secure debts by means of it on the plantation. But the act done goes far beyond a mere mortgage of the plantation. A confession of judgment involves consequences of a much graver character. It puts in the hands of the judgment creditor the immediate means of obtaining a judicial mortgage of all the lands and slaves of the defendant in the judgment, and of effecting a judicial sale of all his property, real and personal. It is substantially, in view of its consequences, one of the highest acts of ownership known to the law, and is not to be implied from the delegation of a power to create a conventional mortgage, even supposing the latter power to be clearly conferred by the instrument. It is a familiar doctrine, that all written powers of attorney receive a strict interpretation, and the authority is never extended beyond what is given in terms or is clearly necessary for carrying the authority so given into effect. This rule, if not embodied expressly in the provisions of our Civil Code, is readily deducible from their spirit. It is impossible to deny that Boykin, who now has a judicial mortgage recorded against all his land and slaves, and a writ of fieri facias levied upon his personal property, is placed in a much more [117] onerous position than if a specific portion of his real estate only were incumbered by a conventional mortgage. See Fuselier v. Robin, 4th Ann. 61, Barnes v. Profilet, 5 Ann. 117. Civil Code, arts. 2965, 2966, et seq. It is therefore decreed, that the judgment of the district court, except so far only as it is in favor of Lisette in his individual capacity, be reversed; that the judgment rendered on the 19th April, 1849, in favor of the said O’Hara against the said Boykin, in the suit entitled W. O’Hara v. John A. Boykin, be annulled; that the injunction issued in this cause be perpetuated; and that the said O’Hara pay the costs of this suit in both courts. 1