Opinion
November 18, 1963.
January 7, 1964.
Agency — Power of attorney — Power to confess judgment — Security interest — Principal's subsequent adjudication of incompetency — Effect.
Where a legally competent person executes a bond containing a warrant of attorney to confess judgment, a subsequent adjudication of his incompetency does not revoke the power of attorney and judgment may be properly confessed against the debtor despite his incompetency.
Argued November 18, 1963. Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 265, Jan. T., 1963, from order of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1962, No. 626, in case of Mid-City Federal Savings and Loan Association of Philadelphia v. G. Wesley Allen and Helen McGerald, guardians of estate of Isaac N. Patterson, incompetent. Order affirmed.
Motion to open or strike judgment. Before WATERS, J.
Order entered discharging defendants' rule to open or strike judgment. Defendants appealed.
Jacob J. Kilimnik, for appellants.
Edwin S. Malmed, for appellee.
This is an appeal from an order in the court below refusing to strike off a judgment, entered by virtue of a warrant of attorney included in a bond, which accompanied the execution and delivery of a mortgage.
At the time of the execution of the instruments involved, the debtor was sane, however, before judgment was confessed on the bond, he had been judicially declared incompetent, under the Act of February 28, 1956, P. L. (1955) 1154, as amended, 50 P. S. § 3511. The validity of the mortgage and bond is not now questioned, but it is urged that the declaration of incompetency terminated the right to subsequently enter the confession of judgment, and that therefore, the judgment is void. With this position, we do not agree.
A power of attorney to confess judgment for a proper consideration is security to the creditor, is coupled with an interest and is irrevocable. The entry of the judgment is not a new act of the debtor, but is a legal result beyond his control. Lunacy will not revoke a power of attorney to confess judgment, which was valid when executed: Spencer v. Reynolds, 9 C.C. 249 (1890); Homer City National Bank v. Mahan, 3 Pa. D. C. 35 (1922); Johnson v. National Bank of Mattoon, 320 Ill. 389, 151 N.E. 231 (1926); Davis v. Lane, 10 N.H. 156 (1839); McCaul v. Thayer, 70 Wis. 138, 35 N.W. 353 (1887); Matthiessen Weichers Refining Co. v. McMahon's Adm'r., 38 N.J.L. 536 (1876); Hill v. Day, 34 N.J. Eq. 150 (1881); 44 A.L.R. 1306 (1926); Annot., 44 A.L.R. 1310 (1926); Klein, Judgment by Confession in Pennsylvania, § 13 at 52 and 53 (1929); 1 Mechem on Agency, § 679 (2d ed. 1914); Elliot on Contracts, § 461 at 689 (1913); and, Shuchman, Penna. Judgment Notes, § 24.1 at 87 (1961).
Order affirmed.