
    *Moon v. Richardson.
    January Term, 1874,
    Richmond.
    Bond Debt—Time of Scaling.—E executes to M bis bond for $3,000 bearing date the 11th of July 1862, and payable on demand. In a deed of trust given at tbe same time by E, to secure tbe debt, it is provided tbat if E will pay punctually tbe interest on tbe debt semi-annually, tbe debt shall not be collected for five years. S pays the interest until July 1861: Held: The bond being payable on demand, the provision in the deed for time does not change its character in that respect, and it must be scaled as of its date.
    In July 1867 Temple D. Richardson obtained an injunction to stay a sale of a tract of land in the county of Appomattox, under a deed executed by himself to trustees, to secure a debt due to Samuel O. Moon. The deed bears date the 11th day of July 1862, and recites that Richardson is indebted to Moon in the sum of $3,000 due by bond bearing even date therewith, and is upon trust that if Richardson shall pay to Moon the legal interest upon said debt of three thousand dollars every six months, with promptness and regularity; then and on that express condition, it is agreed that Richardson shall have five years’ credit upon the bond given for said debt; that is to say, the said bond, which is payable on demand shall not be collected for five years if the interest is paid every six months. But if Richardson should fail to pay said interest on the 11th of January and July of each year, then the trustees were, on the request of Moon, to sell, &c.
    The bond is not in the record, but in both the bill and answer it is stated to have been payable on demand, and that it was given for the loan by Moon to Richardson of *$3,000 of Confederate States Treasury notes. Richardson paid the interest on the bond up to and inclusive of the 11th of January 1864. And the only question considered in this court or the court below, was the date at which said debt was to be scaled. The Circuit court, by its decree of the 25th of September 1870, held that the scale was to be applied as of the 11th of July 1864, up to which time the court considered the interest had been paid or tendered. From this decree Moon applied to this court for an appeal; which was allowed.
    J. W. Daniel, for the appellant.
    Kirkpatrick and Blackford, for the appellee.
    
      
      Bond Debt—Time of Scaling.—See Smyth v. Sutton, 21 Gratt. 191, and note, and see Jarrett’s Adm’rs v. Nickell, 9 W. Va. 353, citing the principal case.
    
   Bouldin, J.,

delivered the opinion of the court.

The true character of the contract in this case is conceded on both sides. The bond given for the debt was executed between the 1st day of January 1862 and the 10th of April 1865; was given for a loan of Confederate States Treasury notes, corresponding in amount with the nominal amount of the bond; and was to be discharged by the payment of the same currency. It is clear, therefore, arid is not denied, that it is what is commonly called a Confederate contract; that it conies plainly within the operation of the act for the adjustment of such liabilities, and must be scaled. The only question before us is, at what period shall the scale be applied?

The appellant contends that the scale should be applied as of the date of the bond, the same being payable on demand: whilst the appellee contends that it was properly applied by the court below as of the period when, by the terms of the deed of trust given to secure the debt, the appellant had a right to enforce the collection thereof, by sale of the property conveyed.

We think there can be no doubt about the law of the *case. It has been plainly settled by recent and repeated decisions of this court, and is no longer open for discussion, that a bond payable “on demand” is payable presently without demand; that the right of the obligor so to pay it, and the duty of the obligee to receive the payment, is not at all impaired by restrictions on the obligee’s right to immediate payment imposed for the benefit of the obligor, either on the face of the bond or by contract de hors thereto: that in all such cases it is at the option of the obligor either to avail himself of the restrictions or to pay the debt at any time after date, as if there were no restriction; and that such bond, if given for a loan of, and solvable in Confederate States treasury notes, must be scaled as of its date. This is now the settled law of this court. Stover, assignee, v. Hamilton & al., 21 Gratt. 273; Omohundro’s ex’or v. Omohundro, 21 Gratt. 626; Bowman v. McChesney, 22 Gratt. 609.

We have seen and heard nothing in this case to withdraw it from the influence of these decisions. The bond, it is true, which was given for the money loaned, is not copied in the record; but it is plainly described in the pleadings on both sides, and also in the deed of trust; and there is no difficulty as to its terms. It is for three thousand dollars, payable “on demand,” and bears date the “11th of July 1862,” on which day it was executed. There is nothing on the face of the bond to impair, in the slightest degree, the right of the obligee to enforce immediate payment thereof; nor is there any thing on its face to prevent the obligor from discharging the same at his pleasure. It is, as written, merely a single bill, payable “on demand;” and due as to both parties instantly. But it is contended, for the appellee, that the legal effect of the bond is changed by the cotemporaneous execution of a deed of trust by the parties to secure the same, in which there is a stipulation in the *following words: “That if the said Temple D. Richardson shall well and truly pay, or cause to be paid, unto the said Moon, the legal interest that may accrue upon the said debt of three thousand dollars, herein-before described, every six months, commencing six months from the date hereof, with promptness and regularity, then, and on that express condition, it is agreed that the said Temple D. Richardson shall have five years’ credit upon this said bond given for said debt, beginning at the date hereof; that is to say, the said bond, which is payable on demand, shall not be collected for five years, if the interest is paid punctually every six months.”

It is very evident from the terms of the clause we have quoted, that it was the purpose of the parties to keep distinctly in view the fact that the debt was payable “on demand,” but that the. debtor might secure indulgence by the punctual performance of an express condition. It was at his option either to pay the debt at any time “which is payable on demand’ ’ as stated in the deed itself, or by performance of the condition to secure indulgence. ' He did not, and was not required to surrender this right; and this brings the case directly within the principle of the cases of Stover, assignee’ v. Hamilton and Baughman v. McChesney. It is a privilege secured to Richardson and a restriction upon Moon; and Richardson still had the unqualified right to waive that privilege and discharge the debt at any time. As to him, notwithstanding the privilege to himself and the restriction on Moon, the debt is regarded in law as payable presently. The date then, and the period of payment, the maturity of the bond being in this case the same, there is no necessity for considering the question so elaborately discussed by the judges and at the bar in the case of Dearing, administrator, v. Rucker, 18 Gratt. 426. We are all of opinion that the bond in this *case was, so far as the rights of the appellee Richardson are concerned, payable at its date; and that the scale should have been applied as of that period. The decree of the Circuit court is therefore erroneous, and must be reversed with costs to the appellant; and this court would now proceed to enter such decree as should have been entered by the Circuit court were the proofs in the cause sufficient for the purpose. There is, however, no proof in the cause of the value of Confederate States treasury notes, either on the 11th day of July 1862, the date of the bond, or on the 11th day of July 1864, when it was scaled b$r the Circuit court. It is true that we may take notice, as matter of history, that Confederate States treasury notes were depreciated on the 11th day of July 1862, and continued to depreciate; that the depreciation between that date and the 11th day of July 1864 was very great, and that the scaling, as of the latter period, was very prejudicial to the appellant; but what was the true debt on the 11th day of July 1862, when the scale should have been applied, we cannot from anything in the record now say. That must be ascertained by the Circuit coqrt, either by reference to a commissioner or by proofs taken before the court; and the cause must be remanded for that purpose. The decree of the Circuit court must be reversed and annulled, with costs to the appellant, and the cause remanded to that court to be further proceeded in according to the principles above declared.

The decree was as follows:

This day came again the parties, by counsel, and the court having maturely considered the transcript of the record and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the obligation of the appellee Richardson, in the proceedings *mentioned, was, as to him, payable presently, in Confederate States treasury notes, and under the repeated decisions of this court, should have been scaled as of the date thereof, viz: the 11th day of July 1862, and not on the 11th of July 1864. It is therefore decreed and ordered that the decree of the Circuit court of the 25th day of September 1870 be reversed and annulled, and that the appellee Richardson do pay to the appellant his costs by him expended in the prosecution of his appeal to this court; and the cause is remanded to the Circuit court, to ascertain, by proof before the court or otherwise, the true value of the Confederate States treasury notes, secured by the obligation of the appellee, on the 11th day of July 1862, the date thereof, and for final decree.

Decree reversed.  