People v. Eastman

By the Court, Sawyer, J. This is an action to recover a tax levied in the County of Mariposa, under the Revenue Act of 1861, for the fiscal year 1863-4. At the time the tax was levied, the defendant was, and he ever since has been, a resident of the City and County of San Francisco. The property taxed was a judgment of record in Mariposa County, foreclosing a mortgage held by defendant on lands situate in said county. The defendant had judgment and plaintiff appeals.

The question is, as to whether the judgment is properly taxable in Mariposa County. We think not. In the case of The People v. Park, 23 Cal. 138, the property assessed was a mortgage upon lands in Mariposa County, held by a resident of San Francisco. In that case the tax was assessed under the Act of. 1860; but the provisions of that Act, in all respects affecting the question under consideration, are substantially the same as in the Act of 1861. It was held—and we think correctly—that the property was not assessable in Mariposa County. The property to be assessed in such cases is money at interest, or debts. The money at interest, debt or obligation, is the principal thing, and the mortgage is only a security—a mere incident to the debt or obligation. The mortgage has no existence independent of the thing secured by it; a payment of the debt discharges the mortgage. The thing secured is intangible, and has no situs distinct and apart from the residence of the holder. It pertains to and follows the person. The same debt may, at the same time, be secured by a mortgage upon land in every county in the State; and if the mere fact that the mortgage exists in a particular county gives the property in the mortgage a situs subjecting it to taxation in that county, a party, without further legislation, might be called upon to pay the tax several times—for the lien for taxes attaches at the same time in every county in the State, and the mortgage in one county may be a different one from that in another, although the debt secured is the same. The fact that the mortgage has been foreclosed, and the lien [604]carried into a judgment does not, in our opinion, change the character of the property with reference to the question under discussion. The principal thing is still a debt, secured by a judgment lien instead of a mere mortgage lien. The twenty-third section does not affect the question. Those provisions operate in cases where the creditor resides in the county in which the mortgaged premises are situated. The Act of 1860 contained the same provision. (See also Faulkner v. Hunt, 16 Cal. 171.)