Robert Rae v. Homestead Loan Guaranty Company
The Homestead Loan & Guaranty Company filed its bill in chancery in the circuit court of Cook county, Illinois, against Robert Rae, Jr., and his wife, for the foreclosure of a certain mortgage or trust deed on real estate in that county, given by them to secure a bond whereby Rae acknowledged that he was bound to the company 'in the sum of ninety-eight hundred dollars ($9,800) in gold coin of the United States of America, of the present standard weight and fineness,' and which recited that the company had advanced to him 'the principal sum of forty-nine hundred dollars ($4,900), which said sum, together with interest thereon, costs, charges, and expenses, amounting in the aggregate to the sum of seventy-eight hundred sixty-seven dollars and twenty cents ($7,867.20) is to be repaid within ten years from date in gold coin as aforesaid, in monthly instalments of sixty-five dollars and fifty-six ($65.56) each, payable on the first day of each calendar month during the said term of ten years. . . .'

The bill alleged default in the payment of certain monthly instalments, and that, in pursuance of the terms of the bond and trust deed, the company had declared the entire amount of the loan due and payable, and prayed 'that upon the hearing hereof the court will ascertain upon an accounting how much is due to the complainant under the terms of the said bond and trust deed, and will decree the payment of any amount so found due, by a short day, in gold coin of the United States of the present standard weight and fineness;' and for sale and foreclosure, if the amounts decreed were not paid.

Defendants demurred to the bill, and set forth the following causes of demurrer:

'(1) The matters and things set out in the complainants' bill are contrary to public policy and void. (2) Because it is not lawful for the complainants and the defendants to make any money but gold and silver money a money tender in payment of any debt contracted in the United States to be paid in the United States. (3) That so much of the act of Congress of February 28, 1878, entitled 'An Act to Authorize the Coinage of the Standard Silver Dollar, and to Restore Its Legal Tender Character,' which provides that gold and silver money of the United States shall be a legal tender for payment and discharge of debts and obligations, is valid, but the proviso permitting parties to make such special contracts as they please as to the payment of debts and obligations in money other than gold and silver is void. (4) That the contract or mortgage set forth in said bill and the relief prayed therein is void, as against public policy. (5) That by virtue of article 1, section 8, paragraph 5, of the Constitution of the United States, Congress alone has 'power to coin money and regulate the value thereof,' and that by article 1, section 10, paragraph 1, of said Constitution it is provided that 'no state shall coin money, emit bills of credit, or make anything but gold and silver coin a tender' in payment of debts, in contracts made in the United States to be performed in the United States. Said defendants claim, jointly and severally, the benefit of said constitutional provisions. (6) That said bill should be dismissed for want of equity.'

The demurrer was overruled, defendants excepted, elected to abide by it, and refused to answer over. The bill was thereupon taken as confessed, and the circuit court on the evidence entered a decree of foreclosure, finding that the defendant Rae, Jr., 'being indebted to the complainant in the sum of $4,900 for a loan made by the complainant to said defendant, executed and delivered to the complainant his bond, bearing date the 1st day of August, 1895, which bond is correctly set out at length in complainant's bill;' that to secure the bond said trust deed was duly given and recorded, and was a valid and first lien on the premises therein described; that default had been made in the payment of instalments as alleged, and that the whole amount had been declared due; and that there was due from defendant to complainant, for principal and accrued interest, the sum of $5,350.76, together with some other items; and decreed that if the sums due were not paid within five days the real estate mortgaged should be sold in satisfaction.

Defendants appealed to the appellate court of the state of Illinois for the first district, and assigned for error the action of the circuit court in overruling the demurrer, etc., and in not dismissing the bill because it claimed there was due the sum found to be due in gold coin of the United States of the present standard in weight and fineness. The decree was affirmed by the appellate court. Rae v. Homestead Loan & Guaranty Co. 76 Ill. App. 548.

From that decree, defendants appealed to the supreme court of Illinois, by which it was affirmed. Rae v. Homestead Loan & Guaranty Co. 178 Ill. 369, 53 N. E. 220. The opinion of the supreme court was as follows: 'The elaborate and able argument for appellants cannot be considered on what appears from this record, as the decree does not find or require judgment in any particular kind of money, but finds the sum due in dollars and cents. Even if it were assumed that contracts of this character could not be sustained, still, by the final decree the appellants are not prejudiced,-they cannot be heard to complain in an appellate tribunal. If the character of money in which payment is contracted to be made be rejected from the contract, still the liability for payment in some kind of legal tender would exist, hence by the decree no prejudice resulted to appellants in overruling their demurrer.'

The present writ of error was then brought, and defendants in error moved to dismiss or affirm.

Mr. Robert Rae for plaintiffs in error.

Messrs. John P. Wilson and William B. McIlvaine for defendant in error.

Mr. Chief Justice Fuller delivered the opinion of the court: 

Notes
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