16 Cal. 167 | Cal. | 1860
Cope, J. concurring.
This suit is brought to recover of the defendant, who is Tax Collector, a sum of money for taxes illegally assessed and paid by the plaintiffs under protest.
From the assessment roll, it appears that the appellants were assessed and taxed “for moneys on hand and loaned.” As a distinct item they were assessed “upon mortgages (Marysville, etc.) $100,000.” The tax on this item was paid under protest, and the object of this suit is to recover it.
1. If the money was paid under protest, and was not justly due, it may be recovered back in an action of this sort. (Hayes v. Hogan, 5 Cal. 243; McMillan v. Richards, 9 Id. 417, and the cases cited in the appellants’ brief.)
2. In order to justify this assessment, as it stands, it must be maintained that mortgages are species of personal property of a known or ascertainable value, and as such liable to taxation.
The second section of the Act of 1857 (Statutes, 326) provides that all property, of every kind and nature whatever, within this State, shall
In a certain loose sense, a mortgage may be regarded as personal property; but evidently it is not so regarded in this act. The mortgage is merely a security, and not necessarily a security for money. As the counsel well remark, a mortgage may be given to secure the rendition of services, or performance of acts, or to indemnify against possible contingencies. The land—if land was covered by these mortgages—may be taxed, and is, without reference to the mortgage on it; and if the mortgage was given to secure a debt, the debt may be taxed
It is argued by the respondent, that the Revenue Act does not require the description of personal property to be given, but only its value; and that in this ease the list showed “personal property—mortgages (Marysville) $100,000,” etc. That this description would be enough if all reference to the mortgage were left out, and, therefore, this reference does not vitiate; that if this property were over-estimated, then the proper remedy was to apply to the Board of Equalization. But it is answered, that these mortgages were not personal property, subject as such to taxation, and therefore taking the whole statement together, it is shown that the tax was not proper, since that was taxed which was not the subject of taxation. Prima facie, a mortgage is no more taxable than a deed, or any other muniment of title or mere security. The money which it secures may be taxed; and this money cannot be taxed as personal property, without a more particular description than this general designation.
We do not understand the statute as the counsel suppose. By section five the Assessor is to ascertain by diligent search, etc., the name of all persons owning, claiming, etc., real estate, improvements or personal property, and the full cash value thereof. The same section provides “that he shall list and assess all such personal property” etc. He shall demand a statement under oath of all real estate, improvements or public lands, or personal property, etc. By section five, different classes of taxable property are given, as “money on hand or on deposit,” “ all moneys at interest secured by mortgage or otherwise,” “ solvent debts.” Obviously, if a lumping assessment were made of personal property, it would be very difficult to make or correct the valuation. It is true, it is not necessary that every item of taxable property should he listed, for that would be a useless as well as a very inconvenient.
We think the assessment shows no legal demand on the plaintiff for the money collected from him.
Judgment reversed and cause remanded.