228 F. 500 | 5th Cir. | 1916
“Mo mortgage, deed oí trust, contract of conditional sales, or other instrument in the nature of a mortgage, which is given to secure the payment of any debt which such mortgage, deed of trust, contract of conditional sale, or oilier instruments of like character, shall be executed so as to convey real property or any interest in real property or personal property which is situated within this state, shall bo received for record unless the following privilege taxes shall have been paid upon such instrument before the same shall be offered for record, to wit: Upon all such instruments which are executed to secure any indebtedness which shall not exceed one hundred dollars, there shall be paid the sum of fifteen cents, and upon all such instruments, which shall be executed to secure an indebtedness of more than one hundred dollars there shall be paid the sum of fifteen cents for each one hundred do] ■ iars of said indebtedness or portion thereof, which is secured by said mortgage, * * * to be paid for by the lender.”
The provision quoted is a revenue measure. Nothing in its terms indicates a purpose to deal with the subjects of interest and usury, which are governed by statutes previously enacted. Code of Alabama
“The law has deemed it wise * * * to permit the lender to realize as profit 8 per cent, per annum for the loan of his funds. By the contract in question, he receives no more. The payment of the tax upon the loan is not very dissimilar from the payment of expenses for conveyances, which are usually borne by the borrower.”
This reasoning is applicable to the case at bar. A result of the statute in question, is tot make the-payment of the tax it imposes a prerequisite to the mortgagee having the benefit which results from the recording of his mortgage. A failure to record the mortgage subjects the interest acquired by the mortgagee to loss or impairment resulting from conveyances subsequently executed by the mortgagor or from the enforcement of liens upon the mortgagor’s property otherwise subsequently attaching. So far as the mortgagee is concerned,, the effect of recording his mortgage is to make it a better security than it would be if this precaution was omitted. It does not enable him to-get more than legal interest. The payment of the tax is an incident to making the mortgage accomplish its authorized purpose of securing to. the lender the amount of the loan and legal interest thereon. The presence in the statute in question of its concluding words, “to be paid for by the lender,” does not make this case materially different from that of Dubose v. Parker. Evidently the state tax on the loan which-was under consideration .in that case was leviable against the lender,, and, in the absence of a contract otherwise providing, was payable by him. The court was of opinion that this was not enough to require giving to the borrower’s agreement to pay that tax the effect of making the loan contract a usurious one. The statute now under consideration does not forbid the making of an agreement by a mortgagor to pay the tax required to be paid before tire mortgagé is offered for record. As above suggested, .there is nothing in that statute to indicate that it was any part of its purpose to deal with the subject of usury. We think that we would be withholding, from the ruling made in Dubose v. Parker, supra, the weight which should be accorded to< it by
It is apparent that the decree appealed from would have been materially different from what it is if the district judge had not entertained the view, expressed in the opinion he rendered, that the mortgage to the appellant was infected with usury. The conclusion is that that decree was erroneous.
It is reversed, and the cause is remanded for further proceedings not inconsistent with the conclusion above stated.