193 Mass. 190 | Mass. | 1906
The mortgagor covenanted to pay all taxes that might be assessed, and the burden of proving that under R. L. c. 12, §§ 16,17 and 18 the mortgagee’s interest should have been separately taxed was on the petitioner. By § 45 of the same chapter, which re-enacted St. 1882, c. 175, § 1, unless a state- , ment under oath is made either by a mortgagor or mortgagee of the amount of the mortgage within the time provided by § 41 for bringing in lists of taxable property the tax shall not be invalid because not separately assessed. It was pointed out in Worcester v. Boston, 179 Mass. 41, 49, which construed the original act in connection with Pub. Sts. c. 11, §§ 14, 15 and 16, now R. L. c. 12, §§ 16, 17 and 18, that these provisions were not generally regarded by assessors, and where the mortgagee has not taken possession the' premises are taxed to the mortgagor, and no assessment is levied on the mortgagee’s interest. These various sections when construed together mean that if separate assessments have not been made by reason of the failure of either of the parties to make such request, then the tax is properly assessed solely upon the mortgaged land. The consequent
The bond owned by the petitioner is one of a series issued by a foreign corporation, which to secure their payment gave a mortgage running to a domestic trustee of its real property situated in this and other States, and also of its machinery, equipment, patents, trademarks and franchises. Having been taxed for its market value, he petitioned for an abatement upon the ground that being secured by a mortgage of real estate the bonds were exempt, and that as the interest of the mortgagee was taxable, to tax them separately would be in effect the imposition of a double levy. The debt represented by the bond ordinarily would be classified and taxed as personal property at the domicil of the owner. It still remained money at interest due to the holder, and apart from our statute requiring a separate assessment of the debt as realty an abatement could not be ordered, although the land alone had been subjected to a tax for its full valuation, as the right separately to assess the debt secured, and the security to the mortgagor as owner would be unimpaired, R. L. c. 12, §§ 4, 51. It was, however, within legislative authority to provide that the interest of the mortgagee should be treated and taxed as real estate. Worcester v. Boston, ubi supra. Abbott v. Frost, 185 Mass. 398, 399, 400. Without reviewing previous legislation to which reference is fully made in these cases, it, is provided by R. L. c. 12, § 4, cl. 2, that “ any loan on mortgage of real estate, taxable as real estate,” shall not be taxable as personal property, and by § 16 the interest of the mortgagee in real estate mortgaged to secure the payment of a fixed sum is to be so assessed. In theory the tax is levied on the amount of the debt outstanding, as in this way, unless the equity is valued at less than the loan, the total valuation represented by the legal and equitable estates is equalized.
Judgment affirmed.