People v. Whartenby

Ceockett, J., delivered the opinion of the Court: The defendant is, and was at the time he was assessed for the taxes in contest, a resident of Nevada County, and was the owner and holder of certain unsatisfied mortgages made by persons residing in the City and County of San Francisco, upon real estate situate in said city and county, to secure an indebtedness to the defendant for money loaned [464]and let at interest, amounting in the aggregate to $112,000. The mortgages contained a provision to the effect that the mortgagors were to pay all taxes levied or assessed upon the sums loaned. The defendant was assessed in due form in Nevada County for the taxes due upon said sum of $112,000, and payment having been refused, this action was brought to enforce the collection. The answer sets up :

First—That the property included in the mortgages was duly assessed in the City and County of San Francisco, at its full value, to the several mortgagors, the owners thereof, prior to the assessment to the defendant, in Nevada County.

Second—That, prior to the assessment in Nevada County, the defendant, through his agent, gave to the Assessor of the City and County of San Francisco, for assessment, a list of said mortgages, and elected that said mortgage debts, if subject to taxation, should be assessed for State and county taxes in said city and county; and that thereupon they were assessed to the defendant, and duly entered on the assessment roll in said city and county; that said taxes remain unpaid, and are claimed by the Collector of taxes in and for said city and county, as due from the defendant.

Third—That each of said mortgages contained a covenant by the mortgagors that they would pay and satisfy all taxes that might be levied on the mortgage debt.

A demurrer to the answer was filed, which was sustained by the Court, and the defendant having .declined to amend, final judgment was entered for the plaintiffs, and the defendant appeals.

The fact that the mortgaged property was assessed at its full value to the mortgagors, evidently presents no defense to this action. This point was expressly decided in People v. McCreery (34 Cal. 459.) In that case, we held that under the facts stated, if any one could complain of double taxation, it was the mortgagor, and not the mortgagee; but we expressed no opinion on the point, whether it presented a case of double taxation, even as against the mortgagor. It is plain, however, that as against the mortgagee, this is no case of double taxation. The debt secured by the mortgage has been but once taxed, and if the owner of the mortgaged