24 Gratt. 219 | Va. | 1874
delivered the opinion of the court.
The true character of the contract in this case is conceded on both sides. The bond given for the debt wasexeeuted between the 1st day of January 1862 and the-10th of April 1865; whs given for a loan of Confederate-States Treasury notes, corresponding in amount with the'nominal amount of the bond; and was to be discharged) by the payment of the same currency. It is clear, therefore, and is not denied, that it is what is commonly called, a Confederate contract; that it comes plainly within the operation of the act for the adjustment of such liabilities,, and must be scaled. The only question before us is, at. what period shall the scale be applied?
The appellant contends that the scale should be applied as of the date of the bond, the same being payable on demand: whilst the appellee contends that it was properly applied by the court below as of the-period when, by the terms of the deed of trust given to-secure the debt, the appellaut had a right to enforce the collection thereof, by sale of the property conveyed.
We think there can be no doubt about the law of the
We have seen and heard nothing in this case to withdraw it from the influence of these decisions. The bond, it is true, which was given for the money loaned, is not ■copied in the record; but it is plainly described in the pleadings on both sides, and also in the deed of trust; and there is no difficulty as to its terms. It is for three thousand dollars, payable “on demand,” and bears date the “11th of July 1862,” on which day it was executed. There is nothing on the face of the bond to impair, in the slightest degree, the right of the obligee to enforce immediate payment thereof; nor is there any thing on uts face to prevent the obligor from discharging the same at his pleasure. It is, as written, merely a single bill, payable “on demand;” and due as to both parties instantly. But it is contended, for the appellee, that the legal effect of the bond is changed by the cotemporaneous execution of a deed of trust by the parties to ■secure the same, in which there is a stipulation in the
It is very evident from the terms of the clause we-have quoted, that it was the purpose of the parties to keep distinctly in view the fact that the debt was payable “on demand,” but that the debtor might secure-indulgence by the punctual performance of an express-condition. It was at his option either to pay the debt at any time “ which is payable on demand ” as-stated in the deed itself, or by performance of the condition to secure indulgence. He did not, and was not requirió surrendr this right; and this brings the case directly within the principle of the cases of Stover, assignee v. Hamilton and Baughman v. Mc Cahesney. It is a privilege secured to Richardson and a restriction upon Moon ; and Richardson still had the unqualified right to waive that privilege and discharge the debt at any time. As-to him, notwithstanding the privelege to himself and the-restriction on Moon, the debt is regarded in law as payable presently. The date then, and the period of' payment, the maturity of the bond being in this case the same, there is no necessity for considering the question so elaborately discussed by the judges and at the-bar in the case of Dearing, administrator v. Rucker 18 Gratt. 426. We are all of opinion that the bond in this-
The decree of the Circuit court is therefore erroneous, and must be reversed with costs to the appellant; and this court would now proceed to enter such decree as should have been entered by the Circuit court were the proofs in the cause sufficient for the purpose. There is, however, no proof in the cause of the value of Confederate States treasury notes, either on the 11th day of July 1862, the date of the bond, or on the 11th day of July 1864, when it was scaled by the Circuit court. It is true that we may take notice, as matter of history, that Confederate States treasury notes were depreciated on the 11th day of July 1862, and continued to depreciate ; that the depreciation between that date and the 11th day of July 1864 was very great, and that the scaling, as of the latter period, was very prejudicial to the appellant; but what was the true debt on the lltli day of July 1862, when the scale should have been applied, we cannot from anything in the record now say. That must he ascertained by the Circuit court, either by reference to a commissioner or by proofs taken before the court; and the cause must he remanded for that purpose. The decree of the Circuit court must be reversed and annulled, with costs to the appellant, and the cause remanded to that court to be further proceeded in according to the principles above declared.
The decree was as follows:
This day came again the parties, by counsel, and the court having maturely considered the transcript of the record and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the obligation of the appellee Richardson, in the pro
Decree reversed.