Glidden v. Newport

Chase, J. It is assumed that the at interest for which the plaintiff was taxed is a portion of the money which he paid when the farms were conveyed to him; otherwise there would be no question of law before the court. One question for consideration, therefore, is whether this money was money at inter *209 est within the meaning of the statute, which subjects to taxation “money on hand or at interest more than the owner pays interest for, including money . . . loaned on any mortgage, pledge, obligation, note, ox other security, whether on interest or interest be paid or received in advance.” P. S., c. 55, s. 7, cl. 5. This statute makes money at interest a distinct class of taxable property. The court’s finding, that the transactions were in effect mortgages, implies that the sums of money advanced by the plaintiff upon the conveyances of the real estate to him were in fact loans upon interest, and that the real estate was conveyed to him as security for the payment of the loans. This implication is confirmed by his dismissal of the petition, which necessarily shows that he found that the transactions were loans of money upon interest, or at least that the plaintiff, upon whom the burden of proof rested, had failed to make it appear that they wore not such loans. Viewing the deed and the bond of each case in the light of the circumstances under which they were made, it is difficult to see how any other conclusion could be reached, so far as the question of taxation is concerned. Although the money was not loaned on a mortgage, strictly speaking, and no note was taken, it was loaned, according to the court’s findings, upon a promise which, if only oral, was a legal obligation and clearly comes within the provision of the statute above quoted. If it were held that the provisions of the bonds do not amount to promises by the obligees to pay the money and interest, as therein set forth, the bonds as written evidences of the transactions would not exclude other evidence of such promises, in this action to which a third party is the defendant. Libby v. Company, 67 N. H. 587, 588; State v. Newman, ante, 10. “ in this state, the taxability of money at interest is not an open judicial question. Whether the assessment of money at interest is a- process of ascertaining the lender’s or the borrower’s just share of the public expense, or an exceptional, double, or otherwise wrongful taxation of the borrower, . . . permitted, not required, by an erroneous constitutional construction established by legislative usage and judicial recognition, we need not inquire. If the assessment of a creditor for his interest-bearing loan of money is, in effect, either a double taxation of his debtor, or a taxation of the debtor for property which, by conveyance or destruction, has ceased to be his, . . . sxreh taxation is sustained by the authority of precedent . . . too firmly established to be overthrown by any other authority than that of making law.” Morrison v. Manchester, 58 N. H. 538, 551, 552. It would seem that, by the transactions under consideration, the borrowers of the money (obligees) are not doubly taxed, in any sense, since the *210 rate of interest they are to pay on the loans (apparently, that fixed by law) appears to have been agreed upon with the understanding that taxation of the money would be avoided. If the money escapes taxation, they will gain nothing by the fact, and if it does not escape, they will lose nothing; their interest charges will be the same in either event. The tax falls upon the plaintiff where, according to the law, it belongs. The plaintiff further says the money is nob taxable because the real estate he holds as security for its payment was taxed to him, and the taxation of the money would duplicate this tax. Real estate also is a distinct class of property specifically subjected to taxation. P. S., c. 55, s. 2. It is taxable to “ the person claiming the same, or to the person who is in possession and actual occupancy thereof, if such person will consent to be taxed for the same.” P. S., c. 56, s. 14. The taxes upon the real estate described in the plaintiff’s bonds were properly assessed against him, as he held the title; but as the obligees were in possession, the taxes might lawfully have been assessed directly against them with their consent. By the terms of the bonds, the obligees are bound ultimately to pay the taxes, and it is of little consequence to them or the plaintiff whether the assessment is made against the one or the other. If the taxes are assessed against the plaintiff and he pays them, he does so not on his own account, but on account of the obligees, and has a claim against them for reimbursement. He pays what are in reality their taxes — not his. His money was not merged in the real estate, but in the obligee’s promises secured by conveyances of the real estate. Taxation of the real estate to him was not taxation of his money, nor was the taxation of the money taxation of the real estate. As found by the superior court, the relations between him and the obligees, so far as they concerned taxation, were in effect like those between a mortgagee and mortgagor in ordinary mortgages of real estate. The taxation of mortgaged real estate and of the loan secured by the mortgage is not double taxation (Nashua Savings Bank v. Nashua, 46 N. H. 389, 399, 408; Morrison v. Manchester, 58 N. H. 538; Sawyer v. Nashua, 59 N. H. 404, 406; Boston etc. R. R. v. State, 62 N. H. 648); and the reasons for this holding lead to the same conclusion when applied to the facts of this case. The plaintiff is not doubly taxed in fact, unless the taxation of money at interest is in all cases double taxation, in which case, as has been seen, the legality of the tax is not an open question. Morrison v. Manchester, supra. He is not in position to set up the plea of double taxation on other grounds with any degree of legal or moral force. Exception overruled. All concurred.