Wilcox v. Ellis, 14 Kan. 588

Wilcox v. Ellis

14 Kan. 588 | Kan. | 1875

*601The opinion of the court was delivered by

Valentine, J.:

1. Assessment and taxation. Lands sold conditionally unpaid purcahse-mony. *6032 in case of abolute sale and converyance *601The only question involved in this case is, whether the plaintiff Wilcox is liable to pay taxes on certain supposed personal property which he is supposed to own and possess in this state. The facts of the case are substantially as follows: “In the year 1868 the plaintiff agreed in writing to sell certain real estate he then possessed in the state of Illinois, to one Daniel Lovatt, for a price agreed upon between them, and Lovatt gave his notes for the amount, it being agreed that the notes were to be left at the bank of Charles F. Gill & Co. in the town of La Harpe, Hancock county, Illinois, and as fast as said Lovatt should make payment on said notes from time to time the plaintiff should convey to him a proportionate amount of said real estate. The plaintiff made no deed to Lovatt for said real estate at the time of the sale, nor did Lovatt give any mortgage to secure the payment of the notes, or execute any other instrument of writing than the notes, and said agreement to sell, which he also signed. Before the plaintiff could be required to convey any part of the real estate to Lovatt, he (Lovatt) must have paid an amount equal to the value of eighty acres; and whenever an amount was paid equal in amount to the value of another eighty acres, then a conveyance was to be executed by plaintiff to Lovatt for sucli eighty acres; and so on, till all the land should be paid for. The payments were to be made one year apart; and should Lovatt fail' in any payment he was to forfeit any payment made after the last preceding conveyance. Six thou- . ° . - sand dollars remained unpaid on the first of March 1872, and is the same $6,000 placed on the tax-roll by the clerk of Butler county 'in said year as the personal-property assessment of said Wilcox. The land was to remain the property of plaintiff till the payments were made as before ’stated. The notes never had been in the state of Kansas, and never out of the state of Illinois, nor in any other place than the bank before stated. The contract or *602agreement to sell the lands between plaintiff and said Lovatt was in writing, executed by both parties, and contained substantially the conditions above set forth.” The tax complained of was levied for the year 1872 on said $6,000, The plaintiff was on the first day of March of that year and has since been a resident of said Butler county. “ The land still unconveyed on March 1st 1872 was of the value of $6,000.” Now we suppose that it will be admitted that it is not the intention of the laws of Kansas to attempt to collect taxes for general revenue except upon property, and except upon property within the jurisdiction of the state of Kansas. Hence, if the contingent debt coming from Lovatt to the plaintiff is not property in and of itself, and aside from the real estate for which it was incurred, or if it is not property within the jurisdiction of the state of Kansas, then it cannot be taxed in Kansas. Then what is there in Kansas to be taxed ? Certainly no tangible property; and not even any intangible property that needs any protection from our laws. Everything is and has been in Illinois — the consideration for the notes, the notes themselves, the place of payment, the persons to whom the notes are to be paid, and presumptively the payors, and the funds which must be used in paying the notes, all are in Illinois and have never been in Kansas. Nothing pertaining to the notes, or to the debt which they evidence, has ever been in Kansas except that the owner of the notes resides in Kansas. Every act which brought the notes or the debt into existence was performed in Illinois, and every act that may be performed in the future for their collection, payment, or extinguishment, must also be performed there. The claim that said debt is taxable in this state is founded entirely upon the maxim, Mo~ bilia sequuntur personam. Under this maxim it is claimed that movable property follows the residence or domicile of the owner, (not his person,) and therefore that personal property may be taxed at the residence of the owner wherever he may be, and wherever the property may in fact be. This maxim would seem from its terms to apply to all movable property, *603tangible as well as intangible, and it is generally so applied wherever it is applied at all. But the defendant desires to make a distinction. While he seems to admit that by the weight of judicial determination the maxim does not fully apply for the purposes of taxation to tangible movable property, yet he nevertheless claims that it does apply with all its force to intangible personal property. We think however he is mistaken. The weight of judicial authority seems to be that for the purposes of taxation the maxim does not fully apply even where the property is intangible. People v. Gardner, 51 Barbour, 352; Catlin v. Hull, 21 Vt., 152; People v. Trustees, &c., 48 N. Y., 397; and other authorities cited in plaintiff’s brief. This maxim is at most only a legal fiction; and Blackstone, speaking of legal fictions, says, “This maxim is invariably observed, that no fiction shall extend to worlc an injury, its proper operation being to prevent a mischief, or remedy an inconvenience that might result from the general rule of law.” (3 Blackstone Com., 43.) Now as the state of Illinois and not Kansas must furnish the plaintiff with all the remedies that he may have for the enforcement of all his rights connected with said notes, debt, etc., it would seem more just, if said debt is to be taxed at all, that the state of Illinois and not Kansas should tax it, and that we should not resort to legal fictions to give the state of Kansas the right *° tax & Where land is sold and conveyed, and notes given for the purchase-money, we suppose the vendee may be taxed for the land and the vendor for the notes received for the purchase-money. But where the vendor still owns the land, and also owns it conditionally, as in this case, whether he can be taxed on both the land and the notes may be questionable. But that he should be taxed on both in Illinois, and on the notes in this state, would be highly unjust. In the case of People v. Trustees, &c., 48 N. Y., 397, the following language is used by Earl, C. J., and concurred in by the full bench: “I am unable to see why the money due upon the land contracts must not be assessed in the same way. The debts due upon these con*604tracts are personal estate, the same as if they were due upon notes or bonds; and such personal estate may be said to exist where the obligations for payment are held. Notes, bonds, and other contracts for the payment of money, have always been regarded and treated in the law as personal property. They represent the debts secured by them. They are the subject of larceny, and a transfer of them transfers the debt. If this kind of property does not exist at the place where the obligation is held, where does it exist ? It certainly does not exist where the debtor may be, and follow his person. And while for some purposes in the law, by legal fiction, it follows the person of the creditor, and exists where he may be, yet it has been settled that for the purposes of taxation this legal fiction does not, to the full extent, apply, and that such property belonging to a nonresident creditor may be taxed in the place where the obligations are held by his agent.” This decision would make the notes given in this case taxable at the banking house of said Charles F. Gill & Co. This decision does not affect the taxability of notes where both the owners of the notes and the notes are in the same state, although in different counties. Nor would it give the power to an owner of notes to fraudulently send them out of the state for the purpose of avoiding taxation on them where they rightfully belong. This case has been very ably presented to this court by counsel on both sides, and for a full discussion of the questions involved we would refer to their briefs.

The judgment of the court below is reversed, and cause remanded with the order that judgment be rendered for the plaintiff on the agreed statement of facts, perpetually enjoining the said county treasurer from collecting said tax.

All the Justices concurring.