Frazer v. Robinson & Daniel , 42 Miss. 121 ( 1868 )

Shackelford, C.J.,

delivered the opinion of the court.'

This is an action of ejectment in the Circuit Court of Holmes county, instituted by the defendants in error against the plaintiff at the May Term, 1866, thereof.

During the progress of the trial, a deed of conveyance of the land in question from the plaintiffs in error to the defendants in error, dated on the 9th day of February, 1865, was offered on the part of the defendants in error, as evidence of their title. A motion was made to exclude it from the jury, “because the consideration shown by the deed was Confederate money; because the stamps are not on the deed, but on the clerk’s certificates of record; and because the stamps are not sufficient in amount.” The court overruled the objections, and permitted the deed to be read to the jury, to which opinion of the court the plaintiff in error excepted.

Exception was taken to the action of the court in refusing the instruction asked by the plaintiff in error.

After verdict, a motion was made for a new trial, for the following reasons: —

“1st. Because the deed from M. Frazer to Bobinson & Daniel was admitted as evidence without proper amount of revenue stamps, and void for want of legal consideration.”

This motion was overruled by the court, and exceptions taken to the judgment of the court in this particular.

Judgment was rendered upon the verdict for the recovery of the entire land sued for, and for one thousand dollars for rent. And hence the case is brought to this court by writ of error.

The first assignment of error is: “ That the court erred in permitting the deed from M. Frazer to Bobinson & Daniel, dated 9th of February, 1865, to be read as evidence to the jury. 1st. Because the consideration recited in said deed was ‘twenty-two thousand dollars in Confederate notes.’ 2d. Because said deed was not stamped with internal revenue stamps of United States. 3d.. That the stamps placed upon certificate of clerk-was not stamping of the deed. 4th. Because the stamps placed upon certificate of clerk were insufficient.”

We shall review the grounds of error in this assignment in their order.

Counsel for plaintiff in error, in support of the first ground of error in this assignment, insists that the contract “ is an ex-ecutory contract,” founded wholly upon the consideration of Confederate money, and that it can not be considered valid in law, and the foundation of any contract; .that the notes were issued in aid of the rebellion, were illegal and void,, and in violation of the Constitution of the United States, and against public policy; “ that the plaintiff below could not claim the benefit of any obligation, or predicate a right of action upon an alleged expenditure of Confederate notes.”

Admitting, for the present, that the contract is an executory’ one, as’ insisted upon by counsel, we are unable to see how he is to be benefited by this position, The question, as presented, is not an open one. Our predecessors, in the case of Green v. Sizer, 40 Miss. p. 530, have settled the point as to the validity of executory contracts, when the consideration' is “ Confederate notes or money.”

In the able and lucid opinion of the distinguished chief justice who delivered the opinion of the court in that case, will be found the distinction drawn between contracts which 'are illegal, and such as are legal and valid, when founded on, or connected with, an illegal transaction. The case under discussion comes fully within the principle settled, and the rule laid down in the case of Green v. Sizer.

The consideration in the case before us was not in any wiseconnected with the illegal issuance of the Confederate notes: they were new parties, neither affected by the original illegal act of the issuance of the “ Confederate notes.”

The conclusion of the court, in the case of Green v. Sizer, after matured investigation, was, that executory contracts, when the consideration was “ Confederate notes or money,” were legal and valid. We are unable to discover any thing in the views of counsel for the plaintiff in error which would warrant us in dissenting from the opinion of the court, on this point, in the case of Green v. Sizer.

Counsel presents the same question in another view, when he says, “ that this is not a suit to recover Confederate money or its value, but a right claimed to enforce a contract void for want of a legal and valid consideration in law, the consideration being c Confederate notes.’ ” In this view of the question, as presented, counsel seems to admit that if this had been a suit to recover the value of Confederate notes, that the action could be maintained.

Could not the same objection be made, and with.as much force, against the recovery of the value of Confederate notes as counsel insists upon, and argues against the recovery of the land in question, paid for by defendant in error with “ Confederate notes ” ? ■

It seems clear to us that it could be. We can not concur with counsel in his views of the contract. There was a payment of the Confederate money for the land, a deed made and executed, and delivered to the defendant in error, in accordance with the contract of sale, properly acknowledged, and, with the deed, possession of the land delivered to defendant in error. These facts, as shown by the proof in the record, show an executed contract.

It follows, from these views, that the court did not err in refusing to sustain plaintiff in error, — Frazer’s objection to the reading of the deed, on the ground of illegal consideration.

The next objection, made the second ground of error in this assignment, will be considered.

Counsel insists that the deed was inadmissible as evidence, on account of improper stamping, and for an insufficient number of stamps, under the internal revenue law of the United States. It is contended that the consideration in the deed is for twenty-two. thouscmd dollars, and yet stamps only to the amount of “ one dollar and a half are found upon the deed.”

At the time of the execution and delivery of this deed, the Confederate States, of which Mississippi was one, were at war with the United States; the authority of the United States was not recognized in this State; the deed was valid without stamps, as they were unattainable at that time, and, if attainable, were not required by law to be placed 'upon it.

After the surrender of the Confederate forces of the Confederate States, and after the restoration of the authority of the United States over the State of Mississippi, it became necessary, by a law of Congress, that all deeds or instruments of writing, made and executed during the rebellion, which were required to be stamped by the general law of Congress, should be properly stamped by á certain time, otherwise the parties making such deeds, &c., should be fined fifty dollars. The duty to stamp this deed, under the law of Congress referred to, devolved-upon the grantor in the deed, — the plaintiff in error. This duty he neglected; and the deed was by the grantors, Eobinson & Daniel, presented to the proper internal revenue officer for the district of Mississippi, within the time limited by the act of Congress, and by that officer stamped.

The defendants in error could do no more than present the deed to be stamped to the proper officer. It was incumbent upon that officer to have placed upon the deed the proper amount of stamps. It is manifest that the deed was presented, and the same stamped; the presumption of law is that it has all the stamps upon it the law requires.

It is true there are not stamps of fifty cents for every $500 of consideration in the deed. It is evident that the revenue officer estimated the value of Confederate notes at the time of the execution and delivery of the deed, and reduced the value to United States Treasury notes. The act of Congress contemplated a one-dollar stamp for every $1,000 in United States Treasury notes, or gold and silver. Upon this basis the deed was stamped.

It is admitted that the proper revenue officer’s certificate was attached to the deed, as the stamping officer, and that it was stamped in due time under the law of Congress referred to.

It would have been error in the court to have ruled out the deed from the jury, for this last reason insisted upon by counsel in this branch of his first assignment. The plaintiff in error is estopped from denying the validity upon the ground of improper stamping. And, in this connection, we think this objection comes from him with a bad grace, — an attempt to take advantage of his own neglect.

The second assignment of error is, —

“ That the court erred in refusing the instruction asked for by plaintiff in error.” This instruction is as follows: “ The court is asked to instruct the jury, that, if they believe from the evidence that the defendant has been in the continued possession of the lands in controversy in this suit, claiming them as his own from a period prior to the date of the deed, under which plaintiff claims, then the law is for defendant; and-they must so find, provided they further believe that the purchase-money named .in the deed, under 'which plaintiff claims title to said lands, was agreed to be paid in Confederate money of Confederate States Treasury notes.”

The court should not have granted this instruction, for the reasons we have already expressed in our disposition of the first assignment, and for another reason: It assumes a fact in conflict with uncontradicted proofs in the case. It was in evidence before the jury that the plaintiff in error made a verbal contract with defendants in error, to rent or lease the lands in question from them; and that they rented the lands in question to plaintiff in error for the year 1865; and that plaintiff in error was to give or pay to defendants in error one tenth of the crop to be raised on said plantation or lands in question.

The plaintiff in error was in possession, as the tenants of defendants in error, and not in his own right.

The second assignment is not well taken. The verdict is in accordance with familiar and well-settled principles of law, applicable to the evidence in the case, and' should not be disturbed.

Let the judgment be affirmed.