ERROR to the Supreme Court of the State of Iowa; the case being thus:
In June, 1861, Wilson gave to Trebilcock his promissory note for nine hundred dollars, due one year after date with ten per cent. interest, payable in specie; and, at the same time, to secure its payment, he and his wife executed and delivered to Trebilcock a mortgage, duly recorded, upon certain real property in Iowa.
In February, 1863, Wilson offered to pay the amount due on the note, principal and interest, and for that purpose tendered to Trebilcock such amount in United States notes, declared by the act of Congress of February 25th, 1862, to be a legal tender for all debts, public and private, with certain exceptions; but Trebilcock refused to receive them, asserting that the note was payable in gold or silver coin of the United States.
In July, 1865, Wilson and wife presented to one of the District Courts of Iowa their petition, reciting the contract to pay 'in specie,' and setting forth that they had tendered to Trebilcock the full amount of money, principal and interest, due, 'said money so offered and tendered being United States legal tender treasury notes, commonly called greenbacks;' setting forth, further, that Trebilcock had refused to accept the same, 'because,' among other reasons, 'the said money was not in kind what the contract demanded or called for; . . . the said defendant claiming that the same was payable only in gold or silver coin.' And praying finally that Trebilcock might be required, by decree, to release and discharge the mortgage upon the proper book of record, as required by law upon the payment of a mortgagedebt. The complainants averred that they had kept the money tendered, ready to pay the defendant, and that they brought the same into court for that purpose.
The defendant demurred to the petition, and for causes, among others of demurrer, set down the following:
'1st. The petition shows upon its face that by the contract the note could only be discharged by payment of the amount due thereon in gold.
'2d. The petition asks the aid of this court for the reason that the petitioners tendered the amount of the note described in the petition in United States treasury notes. Such tender is not good. There is no law of this State or of the United States making anything but gold and silver a legal tender in discharge of the contract set out in the petition. This contract was entered into on the 25th day of June, 1861. The law of Congress making United States treasury notes a legal tender in payment of debts does not apply to this contract, because it was not enacted until long after this contract was entered into, to wit, on the 25th day of February, 1862. To apply this law to this contract would be to make it a retrospective law, a law impairing the obligation of contracts, in violation of the Constitution of the United States.'
The court overruled the demurrer, and in September, 1866, gave its decree, that the mortgage be cancelled, and that the defendant enter satisfaction of it upon the record; thus holding that the tender in notes was legal and sufficient.
On appeal to the Supreme Court of Iowa, this decree was, in October, 1857, affirmed, and the defendant brought the case here on a writ of error, under the 25th section of the Judiciary Act of 1789.
That section was re-enacted, with some changes in its phraseology, by the 2d section of the act of 1867, amending the Judiciary Act of 1789. As the old section was the ground of argument at the bar and the new one is adverted to in the opinion of the court, both are here presented.
Judiciary Act of 1789.
'SEC. 25. And be it further enacted, That a final judgment or decree in any suit, in the highest court [of law or equity] of a State in which a decision in the suit could be had,
'Where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is AGAINST their validity,
'Or where is drawn in question the validity of a statute of or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of such their validity;