Lott v. Dysart

McCay, Judge. 1. As we have ruled very often this Act of October 13th, 1870, must, to be sustained at all, stand as an exercise of the power of the Legislature to enforce the payment, to the State, of the taxes legally due it. It is not for the benefit of the defendant. True, it works to his advantage, if the plaintiff fails to comply with it, as does the Act of Congress requiring notes, etc., to be stamped. But here the plaintiff had complied with that section of the Act requiring him to file his affidavit within the six months, and the only question before the jury was the right of the plaintiff to a verdict. This the Act says he shall not have, unless he makes it plainly appear to the jury that all legal taxes have been paid. He proposes to pay the tax into Court. Why should he not be permitted to do this? There is no dispute as to the amount. The face of the note determines that — and when paid into Court it is then for the benefit of the State. The State gets in this way its tax, the purpose of the law. The defendant is not hurt; it is none of his business. The refusal of the law to permit a judgment to go, is not for his benefit but to compel the plaintiff to do his duty, not to the defendant, but to the State. Were there any question as to the value of the note or debt, we should hesitate, since the proper officer to receive the return would be the revenue officers. But that question is not here. The Court is the State’s guardian of its rights, and it may fairly be trusted to see to it that the money paid in goes to the proper custodian of it. [358] 2. It would be pushing the law of novation very far to treat this change of papers as a novation. The original payee was only the agent of the minor, and sold the land as his agent. In turning over the debt to the guardian he is only performing the duties of his trust. It was originally payable to one agent of this minor; it is now made payable to another, the guardian. The change of payees was simply this, the substitution of one agent for another. In both cases the minor was the beneficiary. The debtor and creditor are the same in both cases. It is well settled that the taking a security, or change of one, is not a novation. This note was still for the land. We think, therefore, the Court was wrong in both these grounds, and reverse the judgment. Judgment reversed.