2 N.D. 421 | N.D. | 1892
The opinion of the court was delivered by
The contest here is between plaintiff and defendant Foster county for priority of lien. The action is to foreclose a real estate mortgage. Foster county is made a party defendant on the theory that it holds a lien on the mortgaged real property subordinate to the lien of plaintiff’s mortgage. This contention of the plaintiff is denied by Foster county, and the latter, having been defeated by the trial court, brings the question before us for review. It is purely an issue of law. The facts are undisputed. Plaintiff’s mortgage is dated July 1, 1886, and was duly recorded July 5, 1886. On March 26, 1889, Foster county entered into a contract to furnish, and actually did furnish on that day, to the mortgagor and owner of the mortgaged - premises, pursuant to such contract, 150 bushels of seed wheat, ■ to be used by him to raise a crop upon the mortgaged premises in the season of 1889. The seed was actually used for that purpose. All proceedings were duly taken by the county in conformity with the statute to perfect a lien upon the land under the provisions of chapter 43 of the Laws of 1889. This act so far as it is material to this case, provides that, “ if the said indebtedness ■ (for the seed grain furnished) be not paid on November 1,1889, the amount thereof shall be entered upon the tax list of such county for the year 1889 as a tax upon the land upon which such seed wheat was sown, to be collected as other taxes are; and the sum so entered and levied shall be a first lien upon the crop of grain raised each year by the person ■ receiving said seed grain, and also upon the real estate owned
Is, then, the obligation under the law resting upon the person who has received temporary county aid in the shape of seed grain, to repay to the county the value thereof, a tax in any sense of the word whatever? We are very clear that it is not. If the oracle be consulted we find it gives back no answer that will justify the theory that this obligation is a tax. Says Judge Cooley at the very threshold of his work on Taxation: c‘ Taxes are defined as being the enforced proportional contribution of persons and property, levied by authority of the state for the support of the government and for all public needs.’1 The amount to be paid by him who has been supplied by the
The mortgagee had, when the law of 1889 was enacted, secured a first lien upon the real estate covered by the mortgage. It was for this he had contracted-with the mortgagor. Any law affecting the priority of this lien, or giving the mortgagor authority to do so, clearly impairs the obligation of this contract. Said the court in Railroad Co. v. Hamilton, 134 U. S. 296, at page 301, 10 Sup. Ct. Rep. 546: “ There was no statute in force at the time the mortgage was executed giving any priority to subsequent mechanic’s lien; and by the mortgage the mortgagee took its vested priority beyond the power of the mort