60 F. 31 | U.S. Circuit Court for the District of Oregon | 1894
The complainant is a California corporation, and has a large amount of money loaned in this state upon the security of real-estate mortgages. These mortgages are recorded in Multnomah county, but are alleged to be without the state, in the possession of the complainant, in the city of San Francisco. It is alleged that, in obedience to a custom long established, all the real estate in the county, and all mortgages upon such real estate, were each assessed for the year 1892 at 50 per cent, of their cash value; that thereafter the state board of equalization arbitrarily, and for the purpose of discriminating against mortgages, and especially against the mortgages of the complainant, increased the assessment upon lands to 65 per cent, of their cash value, and increased the assessment of mortgages to 100 per cent, of such value; that such assessment subjects mortgages to a greater fax, proportionately, than lands are subjected to, and is grossly out of proportion to the values involved; that the sheriff threatens to sell
“The maxim so much relied on hy the plaintiffs — -'that personal property follows the person of the owner — is hut a legal fiction, invented 'for useful purposes, and must yield whenever the purposes of convenience or justice make it necessary to ascertain the fact concerning the situs of such property. In cases of attachment and for purposes of taxation it is constantly disregarded, as the following cases will show: Catlin v. Hull, 21 Vt. 153; People v. Commissioners of Taxes, 23 N. Y. 225; People v. Home Ins. Co., 29 Cal. 533; Green v. Van Buskirk, 7 Wall. 150. And the case of State Tax on Foreign-Held Bonds, 15 Wall. 300, cited and also much relied on. by plaintiffs, only decides that a state law which comes between the foreign lender and the local borrower, and compels the latter to pay a portion of the interest due the former on his debt, as taxes to the state, is void because it impairs the obligation of the contract between the parties; and this same ruling could as well have been made on this ground if the parties had both been citizens of the state seeking to impose the tax.”
Without reference to the statute which provides that mortgages of land shall, for the purposes of assessment and taxation, be deemed to be real estate, the right secured by mortgage attaches to the land. It has no other locality, — no extraterritorial existence. If the right follows the person of the owner, then it must be enforceable where the person is, without regard to the location of the mortgaged premises, since a right which is not enforceable in a particular locality cannot be said to have a legal existence there. This principle is contained in the maxim, “Where there is a right there is a remedy.” All recording acts relating to mortgages as well as deeds of realty recognize this fact, and, in conformity with it, the records of mortgages, which are intended to impart notice of the mortgagees’ rights, are by an invariable rule required to be kept in the county where'the mortgaged land is located; and in this state such record, in addition to being notice, is evidence of the mortgagee’s right, and has the like force and effect as the original as evidence in any court of the state.
The second ground relied upon by the complainant is the alleged fact that the assessment of mortgages is higher than that of lands and lots, and has the effect to compel the mortgagees to pay more taxes, proportionately, than owners of other real estate are required to pay; and it is alleged that such assessment upon mortgages was made by the board of equalization arbitrarily, and with
“Perfect equality and perfect uniformity of taxation as regards individuals or corporations, or the different classes of property subject to taxation,-is a dream unrealized. * * * Pet us suppose that the complaints made in these cases against the taxes were well founded; that the mode adopted by the board of equalization to ascertain the value of the franchise and capital stock is not the best mode; that it produces unequal and unjust results in some cases; that the same is true of the mode of ascertaining the basis of assessment for the taxation by municipalities; that the board of equalization increased the entire assessment on each company without sufficient evidence, — in short, let us suppose that in these and many other respects the proceedings were faulty and illegal; does it follow that in every such case a court of equity will restrain the collection of the tax by injunction, or will enjoin the collection of the whole tax, when it is obvious' that, in justice, a large part of it should be paid, and, if not paid, that the complainant escapes taxation altogether?”
As to the alleged inequality of the tax complained of, it is a sufficient answer that the complainant has not offered to pay any tax,— to do the equity that is required of it; and for this reason, if for not other, the injunction should be denied. But I do not place the decision of the case upon this ground. The assessment complained of is in pursuance of a law of the state, the validity of which is not questioned. There is no claim of fraud in the assessment made, nor of inequality between the assessment of the complainant’s property and that of the same class belonging to all other persons. The property in question is assessed at its cash value, as the law re
