90 F. 806 | U.S. Circuit Court for the Southern District of Iowa | 1898
The facts leading up to the rule herein issued are as follows: Upon application, duly presented, this court appointed a receiver in foreclosure proceedings herein pending at the instance of the trustee in the matter of a trust deed given by the Council Bluffs Gas & Electric Light Company upon the property and plant of said company, situated in said city of Council Bluffs. Decree was entered ordering sale of said plant and property, and the matter proceeded to sale, the report of sale of the master commissioner was confirmed, and deed ordered thereon. The bid was about $288,-000. Upon presentation to him, to be recorded, of the master’s said deed, the county recorder of Pottawattamie county, Iowa, refused to accept same, or to file same for record, for the reason, as assigned by him, that such deed did not have affixed thereto the revenue stamps required by the internal revenue statute relating thereto. On application of said master and the grantee in said master’s deed, a rule pro forma was issued on said county recorder to show cause why he should not file and record said master’s deed without the same having-affixed thereto such revenue stamps. The recorder has made his return, stating that, under the provisions of the statute relating- to internal revenue, the master’s deed, being an instrument whereby realty, etc., is granted and transferred, cannot by him be filed or recorded un
See. 15. That It shall not be lawful to record or register any instrument, paper or document required by law to be stamped unless a stamp or stamps of the proper amount shall have been affixed and cancelled in the manner prescribed by law; and the record, registry or transfer of any such instruments upon which the proper stamp or stamps aforesaid shall not have been affixed or cancelled as aforesaid shall not be used In evidence.
Under Schedule A is given (page 400) the following, as to the amount of stamps required on conveyance's:
Conveyance: Deed, instrument or writing, whereby any lands, tenements or other realty sold shall be granted, assigned, transferred or otherwise conveyed to, or vested in, the purchaser or purchasers, or any other person or persons, by Ms, her or their direction, when the consideration or value exceeds one hundred dollars and does not exceed five hundred dollars, fifty cents; and for each additional live hundred dollars or fractional part thereof in excess of live hundred dollars, fifty cents.
There appears in the statute no provision expressly exempting masters' deeds from (he requirements as to stamping conveyances. That the master's deed above described is a ‘‘writing, whereby * * '* realty sold” is granted and transferred to the purchaser, is conceded. But if is claimed that said deed is exempt from the provisions of this statute, because the same conveys property which was at the date of such conveyance in the possession and control of this court (that is, the receiver of this court), and said deed is, by order of this court, made by one of its officers, viz. the standing master in chancery, and that, therefore, this statute, in so far as it requires that revenue stamps shall he affixed to said deed, is obstructing the administration of justice, and cannot be upheld. If taken in its full meaning, the position here assumed, against the application to the present case of the statute just quoted, would make wholly unnecessary the stamping of sheriffs’ and marshals’ deeds, as well as those of masters and commissioners appointed by the court. I can scarcely believe that congress intended such deeds should be thus exempt, and I strongly hesitate to adopt a construction which must effect such a result, and such a loss of revenue. The contention extends further^ and to t.he effect: that since this statute has been held not to apply,"as to its requirements as to stamping checks, to checks drawn by the clerk of this court upon money in the registry of the court, the same construction must apply to deeds made, under the order of the court, by one of its officers. In my judgment, this latter contention is not well founded. When money is paid into the registry of the court, the person so paying the same has thereafter no title or claim to such money, save as the order of court may subsequently otherwise determine. The possession and right: of possession is in the court, or its officer, receiving such money. It. is held for the benefit of such persons as may he found entitled thereto. And the practice and rules of the court require that it shall be paid out only on the order of the
Since the submission of the question involved herein, my attention has been called to a decision made by the commissioner of internal revenue (2 Treasury Dec. p. 864), of date November 17, 1898, wherein it is announced that “deeds of masters in chancery are required to be stamped.” It thus appears that the conclusion hereinbefore reached is in accord with the construction and practice adopted by the treasury department.
In the present case the payment for the stamps required for the master’s deed can be, if necessary, taken from the funds now in the receiver’s hands, which have been earned by the property pending foreclosure and r-ale herein. The rule upon the county recorder of Pottawattamie county, Iowa, must be discharged, and it is so ordered.