The chief question raised upon this record is the sufficiency of the revenue stamps affixed to the instruments executed to appellees by Hermann & Star, defendants below. The internal revenue act, in force at the time they were executed, imposed an ad valorem duty upon specified instruments in writing for payment of money, or upon “other written or printed evidence of an amount of money to be paid on demand, or at a time designated;” and, also, upon mortgages of real or personal property made as security for the payment of any “definite and certain sum of money.” It also provides that it shall not be lawful to record any instrument required by law to be stamped, unless a stamp or stamps of the proper amount shall have been affixed, and that such record, if made, shall be void, and shall not be used as evidence.

The instrument in question in this case is not for the payment of money. It is “evidence” of an agreement to pay appellees a certain number of ounces of gold dust, on demand, and the mortgage was executed to secure the same. The former instrument was stamped to the amount of SI, and the latter to the amount of $2. The appellants contend that they were insufficiently stamped, and that the record of the mortgage, though made prior to that of the conveyance or mortgage to them, was void, and that they were not thereby legally charged with notice of its existence. It is assigned that the court erred in admitting the instruments, and the certificate of record of the mortgage, in evidence upon the trial below.

We are of opinion that the instruments in question are not embraced in the schedule embodied in the revenue act, as subject to the ad valorem duties thereby imposed upon similar instruments for the payment and securing of money, *72and that they were valid, and that proof of the record of the mortgage was properly admitted. The contract or agreement of the parties was for the payment or delivery of certain property; and the mortgage was executed to secure the. performance of the agreement, and they cannot be regarded as being for the payment of money.

Had the money value of the gold dust been expressed in the instrument, or could it have been ascertained from 'its terms, the case would have been different.

It was the duty of the- recorder, under the territorial law, to record the mortgage, and the record, when made, was notice to all. Under the act of congress he had no legal authority to determine the value of the property embraced in the mortgage, and the payment of which it was made to secure; and no means were furnished him by which to arrive at the amount of duty to which the instrument was subject. Had congress designed to include such instruments in the provision relating to recording, power would have been conferred to ascertain by some means the value, in order to determine whether the amount of ad valorem duty paid, as denoted by the stamps, entitled it to record or not.

Admitting, however, that while the instrument secured by the mortgage was only subject to duty as an agreement or contract, the mortgage was subject to the ad valorem duty, the amount to which it was subject would depend upon the value of the property secured by it at the time of the execution of the mortgage, and not upon its subsequent value, or with the accrued interest.

The agreement, or memorandum, and the mortgage, both bear date October 17, 1866, and, in their special finding, the jury found that to be the true date. There is no proof, and no presumption of law, that the value of the gold dust, at that time, exceeded the amount indicated by the stamps.

If, however, as claimed by appellants, the mortgage was not executed until November 8,1866, still the value of the gold at that time, as found by the jury, was $2,103.75, and the two instruments constituting but one transaction, the amount of duty upon them denoted by the stamps was *73sufficient. The object of the act is to derive revenue; and the amount of the stamps being sufficient, it is not material to which they were affixed. The record shows that after rendition of the verdict, the court, on appellants’ motion, ordered the case to be reserved for further consideration; and, after argument, entered judgment in conformity to the verdict. In this there was no error.

The court below erred in allowing interest upon the judgment at a greater rate than ten per cent per annum; and the judgment is hereby modified so as to conform to this opinion, and affirmed as modified.

Modified.

This judgment was reversed at the August term, 1872.