Economy Power Co. v. Daskam

Brooke, J. (after stating the facts). The history of this legislation is too well known to require much comment. The old or ad valorem system of taxation of mortgages was believed to be unsound economically as well as inefficient in operation. It seemed to result in many instances in the imposition of a double tax upon the same property. While doubtless intended as a relief to the borrower, its tendency seemed to be to increase his burden, and it placed domestic lenders of money upon real estate security at a distinct disadvantage when compared with the nonresident lender, in whose hands the mortgage escaped taxation. [406] Primarily the legislation was doubtless enacted to correct an alleged economic fallacy, and secondarily to place foreign and domestic loaners of money upon an equal footing. There can be no doubt that, if relator and the Harris Trust & Savings Bank (the mortgagee-trustee) choose to rest their respective rights upon the original instrument and the record thereof in the three counties named, they have a right under section 6 of the statute to do so. The mortgage would then remain under the ad valorem system of taxation, and, the mortgagee-trustee being a foreign corporation, no tax of any nature could be imposed or collected thereon. This, however, it seems is impracticable. The original mortgage contemplates the acquisition by the mortgagor of real estate and franchises outside the three counties named, but within the State. It further contemplates the subjection of such after acquired property to the lien of the mortgage and the issuance of additional bonds upon the faith of such added security. While the amount of bonds to be issued under the mortgage is presently limited to $5,500,000, this amount can be indefinitely increased by the joint action of the mortgagor and the bondholders. So that, if we understand the contention of relator, we have here an instrument which, at the time of its record, and up to January 1, 1912, stood as security for $1,250,000 only, but which through the acquisition of other property and the issuance of further bonds may in the future be enlarged to any indefinite amount without the payment of the tax imposed by the statute. We are clearly of the opinion that this position is not tenable. To so* hold would be to enable this relator to acquire real estate and other property without limit, to borrow money thereon and escape the payment, while all others in performing the same acts since January 1,1912, would be subjected to the payment of the impost. Every such act of the relator is in effect the making of a new loan. It acquires property by purchase and borrows money thereon. The fact that the original mortgage was [407] recorded prior to the passage of the act can surely produce no such anomalous situation. Whenever (after January 1, 1912) it becomes necessary for relator, in order to subject newly-acquired property to the lien of the mortgage, and to give notice thereof to the world through registration, we are of opinion that such registration may be had only upon compliance with the terms of the act. This would certainly compel the payment of the specified tax upon all issues subsequent to that date. The contention of relator that it is, in any event, entitled to the registration of the supplemental instrument, we think unsound. The recital in that instrument describing the original mortgage and the record thereof, if recorded in Calhoun county, would (probably) be sufficient notice to the world of the character and extent of the lien imposed by the original instrument. Upon this point relator’s contention is based upon the language found in section 3, which provides: “Such certificate shall not be required with any mortgage made to indemnify the mortgagee as surety, or to secure the performance by the mortgagor of any contract which does not require the payment of a specified sum of money, nor with any mortgage made to correct or perfect a mortgage previously recorded, on which the charges imposed by this act have been paid, if no new or additional indebtedness is created thereby.” Two answers present themselves to this contention. First, the supplemental instrument cannot be construed as in any true sense correcting or perfecting the original mortgage; and, second, by means of the second instrument a new or additional indebtedness is created. But why should relator be entitled to record upon payment of the tax upon the amount of the bond issue since January 1, 1912, only ? By withholding the instrument from all further record, it is entitled to issue bonds thereunder, and in accordance with its terms, and as to such issues no tax can be demanded. But if it, for any reason, desires to record the same in a new county, why should it not com [408] ply with the terms of the statute, and pay the tax upon the whole amount issued at the timé the instrument is presented for record ? It may he said that as to the $1,-250,000 issued prior to January 1, 1912, the relator, not having paid the tax, has indicated an intention to kéep the mortgage under the ad valorem system, and that, as to that amount, it should be relieved of the tax. It cannot be denied that such a result would be equitable, for it may be supposed that, when the original mortgage was executed, relator made its financial engagements upon the basis of the law as it then stood, but' the State in the exercise of its sovereign powers may, at will, change its methods of taxation. Moreover, the statute will be searched in vain for any authority for such action. Section 2 of the act imposes the tax, without exception, upon all mortgages recorded on or after the 1st day of January, 1912. The instruments here tendered for record come clearly and literally within the designation. Even though one of them has been heretofore recorded, they are now to be recorded, and it is that act which under the statute imposes the tax. Relator is not obliged to tender the instruments for record; it does so voluntarily. A further reason for this view is presented in the fact that the newly-acquired property sought to be subjected to the lien becomes by virtue of the supplemental instrument (and perhaps by the original mortgage as well) security for the whole debt, as well that portion incurred prior to January 1,1912, as the portion incurred subsequent to that date. The writ is dismissed. Steers, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.