Vilhac v. Biven

By the Court,

Currey, J. This action was brought to recover the amount due on a promissory note and to foreclose a mortgage of certain real property executed by the .defendants to secure the payment of the note. The note, a copy of which is set forth in the complaint, bears date the 5th of October, 1863, and is made payable six months after date, with interest at one and a half per cent per month, in current gold coin of the United States. The mortgage was executed on the day of the date of the note and was duly recorded on that day. The action was commenced on the 18th of July, 1864. On the 6th of August the defendants filed their answer, in which they admit the execution and delivery of the note and mortgage to the plaintiff, and they state that on the 3d of August there was due by reason thereof for the debt and costs incurred, the sum of [411]thirty-two hundred and fifty dollars ; but they aver that the sum due on the note and mortgage on the day last mentioned, including the costs then incurred, was paid by one of the defendants to the plaintiff in satisfaction of the amount due him. That such payment was made “in the currency of the United States, known as legal tender notes, commonly called greenbacks.”

From the statement of the evidence in the case, it appears that on the 3d of August the defendant William Biven obtained from an officer of the United States Government certain United States notes, commonly called “ greenbacks,” amount-, ing to the sum of thirty-two hundred and fifty dollars. This money belonged to the United States, and was obtained for the purpose of being used as a tender to the plaintiff in payment of the amount due him.

William Biven was sworn as a witness for thje defendants, and testified that to induce the officer to let him have these United States notes, he told him he did not' expect the plaintiff would receive them, and that if plaintiff offered to take them, he (Biven) would not let him do so. Another witness testified that when Biven applied for the money the officer told him he could have it to use in making the tender if he would take his (the officer’s) brother along to witness it; and the officer at the same time told his brother and the defendant to be sure not to let the plaintiff have the money if he offered to accept it, assigning as a reason therefor that if the plaintiff was allowed to take the money it would ruin him (the officer).

The officer’s brother testified that he and Biven then called on the plaintiff, when Biven handed him four bundles of United States notes, three of which contained one thousand dollars each,, and one two hundred and fifty dollars,, saying to him: “Louis, here is the money I owe you for the mortgage.” The plaintiff took the notes, and while counting them, Biven said to him : “ J give them to you at par;” to which the plaintiff made no reply, but continued counting. After having counted the money, he handed the package back to the wit