McElderry v. Jones , 67 Ala. 203 ( 1880 )

BBIC'KELL, O. J.

— This was a statutory real action by a mortgagee to recover from the mortgagor possession of the mortgaged premises. The only defense insisted upon was the payment of the mortgage debt before the commence-' ment of suit. Whether the defense was available, was not matter of controversy in the Circuit Court. The contention by the parties was limited to the fact of payment, and the instructions given and refused, all proceed upon the hypothesis, that if the fact of payment was proved, it was an available and complete defense. Whether the mortgagee can not recover in ejectment after payment of the mortgage debt, is a question which has not been heretofore decided, and which we now leave open, this cause, as it is presented, not involving it. — Collins v. Robinson, 38 Ala. 91.

United States treasury-notes are, equally with gold coin, a legal tender at their nominal value for the payment of debts, whether the debts were contracted prior or subsequent to the acts of Congress authorizing their issue and declaring them a legal tender. — Legal Tender Cases, 22 Wall. 459. Whoever may tender, or may receive the one or the other, tenders or receives all that can by law be demanded in payment — the one is the legal equivalent of the other. If the mortgagor had made a payment of two thousand dollars in United States treasury-notes, declared a legal tender by the acts of Congress, to that extent the mortgage debt was extinguished, the promise of the debtor was fulfilled, the obligation of his contract satisfied. This was the simple proposition embodied in the instruction given, to which an exception was reserved.

If a debtor makes a payment in depreciated currency, promising the creditor to make good the depreciation, the promise is founded on a valuable consideration, and will be enforced, though the creditor may have surrendered the evidence of debt. — Mills v. Geron, 22 Ala. 469. This is certainly true of bank notes, not a legal tender, not money in contemplation of law, but which by common consent, in the ordinary course and transaction of business, are treated and esteemed as money. It is the consent of those who employ them that gives them currency and value as money, and the consent may be yielded, or refused, at the election of all to whom they are tendered. If it is yielded upon a promise that they shall be made the equivalent of money — of that which, by law, is made the currency, and which may be tendered and must be received in payment of debts, there is a consideration for the promise. But there can be no consideration for the promise of a debtor who tenders money to his creditor, which the creditor is bound to receive, and which is the full measure of the debtor’s liability to pay more, because there is another kind of money, no more in legal contemplation than the equivalent of that which is tendered, having a greater value in the transaction of business. If there was an agreement by the appellee that the treasury-notes should be accepted at their Value as compared with gold coin, instead of their nominal value, it was without consideration, and did not lessen his right to a credit on the mortgage debt, for their nominal value. There was no error in the refusal of the instruction requested, and the judgment of the Circuit Court is affirmed.