Bethel v. Hawkins

Talxai’ERKo, J. In June, I860, this suit was filed by the plaintiff, who prays judgment against the defendant on Ms two promissory notes with the interest thereon, each for the sum of $7500, dated the eighth of May, 1802, payable respectively in two and three years after date, with interest at eight per cent, per annum from date. He also prays a decree enforcing the mortgage given to secure the payment of the notes so far as relates to the land described in the act. By supplemental petition, filed twenty-third April, 1868, the suit was revived against the widow and natural tutrix of her minor children, the defendant having died during the pendancy of the suit. The answer is a general denial. Judgment was rendered as prayed for with an order that the land mortgaged be seized and sold to satisfy the debt. The defendant has appealed. The consideration for which the notes were given was a loan of Confederate money as expressed in the act of mortgage. The plaintiff aimed to evade the effect of this declaration by introducing himself as a witness, detailing conversations bad with the defendant before and at the time the loan was made, and subsequently going to show that the loan was made by furnishing the borrower exchange in drafts and checks. This testimony was objected to by the defendant, and the objection being overruled he took a hill of exceptions. We do not [621] think it important to pass upon this hill of exceptions, as the testimony is insufficient to rehut the recital in the act of mortgage. A second hill of exceptions was taken by the defendant’s counsel to the ruling of the court admitting that part of the plaintiff’s evidence which is in these words: “Witness at once protested (on seeing the mortgage), and told the recorder that it was not the understanding or agreement between defendant and himself. That witness wanted the mortgage to be altered or a new mortgage given, leaving out the words ‘Confederate money,’ as the money given was not Confederate money, and witness wanted to carry out the original contract.” What the plaintiff said to a third party, out of the presence of the defendant, he could not give in evidence, and the testimony should have been rejected. 12 An. 179; 5 L. 414; 11 An. 503, and 3 An. 280. The act of mortgage was executed before a notary and two witnesses on the eighth of May, 1862, the same day the notes were given, and they are identified with the act of mortgage by the notary’s paraph tie varietur. The defendant’s wife, authorized by the husband, joined in the act and made a renunciation of her rights upon the property mortgaged. These acts were required by the plaintiff to be done before the money was advanced. It appears that the plaintiff is a resident of Memphis, Tennessee, and was so at the time the Iqan was made. He was not present when the act was executed, nor was there any person present who accepted the mortgage for him. But the plaintiff seems to have acquiesced in the act, for he says in his own testimony that “defendant came to witness’ home with the notes, telling witness that the defendant had given the mortgage with the renunciation of his wife; witness then let defendant have the balance of exchange, either in drafts or checks, etc.” In his own testimony there is plainly a studied evasion in stating the time at which he first saw the mortgage. He says: “Witness then, sometime thereafter (meaning the time he gave defendant the drafts, etc.), was at Franklin, and went to see the records.” But an allegation in the petition is more definite as to the time when he protested to the notary and required the words “Confederate money” to be stricken out of the act or a new mortgage given. The petition sets out “ that the note being due, and the troubles wldch for several years had agitated the country having passed away, your petitioner demanded of said Hawkins a compliance with his obligation, but was answered by said Hawkins that payment would not be made on the ground that the money loaned to him by your petitioner had been so loaned in Confederate bills or notes. That your petitioner,having then- examined the act of mortgage, etc., discovered the allegation by said Hawkins in said act, that said loan of $15,000 had been made in Confederate currency.” The plaintiff affects now to accept the mortgage according to what he says was the original agreement, namely, that he loaned the defendant $15,000 “ in good current funds, [622] on condition that defendant would execute a mortgage on Ms land and slaves.” He can only accept the act of mortgage in the terms and sense in which it is expressed. The law is plain on that subject. Civil Code, articles 1792, 1795, 1799. If he has not accepted the act according to its terms there is no contract, and he can not proceed with Ms case; if he has accepted in the only way in which he could accept, he is bound by the act and cannot gainsay its meaning and purport. There is no ambiguity in the terms used and no room for extraneous aid to interpret them. He is endeavoring to enforce a contract, the consideration of which was “Confederate currency.” The nullity of contracts founded upon that unlawful currency has been frequently determined. It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that this suit be dismissed at the plaintiff’s costs.