38 Mo. 458 | Mo. | 1866
delivered the opinion of the court.
This is an action in the nature of a bill in equity to redeem certain property alleged to have been mortgaged by the respondent Yerges to the appellant. The pleadings in the case present substantially but one issue for trial, and the only one to be considered here.'
The petition of the respondent sets out at length, that he and his wife, in the year 1857, executed a deed of mortgage conveying certain real estate therein described to the said Giboney, to secure the payment of a certain note described, and which was executed by respondent in favor of the appellant, said note being due and payable in one year thereafter; that in January, 1865, by his duly authorized agent he had tendered to Giboney a sum of money more than sufficient to
The answer contains simply a denial of the tender of the money, or any knowledge of the fact that Nicholas Albert (who was alleged to have made the tender) was the duly authorized agent, &c., and therefore all of the other facts and allegations contained in the petition are to be taken as confessed. This brings us directly to the consideration of the real question to be determined here, viz.: Can a contract for the payment of money, made prior to the passage of the act of Congress making Treasury notes a legal tender in the payment of debts, be affected by the provisions of that act ? The principles involved in the settlement of this question have been so frequently discussed and settled by a majority of the State courts,.including our own, that it is not deemed necessary to re-argue them at this time.
It is sufficient to say that it has been held with great unanimity, that the act referred to was constitutional and binding ; that having provided for two different and distinct mediums of payment, and clothed both with the attributes of a legal tender, the debtor might make his election between them, and the creditor is bound thereby, and this will apply to contracts made prior to as well as subsequent to the passage of the act. The cases of Riddlesbarger v. McDaniel and Appel v. Woltmann, decided at the last March term of this court, are particularly referred to as showing the reasons for the conclusions arrived at in those cases and which will apply with equal force in the present case.
From these premises, it is manifest that the first instruction given by the court at the instance of the appellant was erroneous. It is as follows: “United States Treasury notes, or greenbacks, are not a legal tender for the payment of debts
Notwithstanding the law was thus improperly stated, yet the court, sitting as a jury, seems to have disregarded its own declaration and found according to the law. The facts were fully found by the court, and the decree properly rendered for the respondent.
Judgment affirmed.
