Blythe v. Luning

• Decision Date: 13 March 1882
• Citation: 14 F. 281
• Court: United States Circuit Court, District of California
• Parties: BLYTHE v. LUNING.

14 F. 281

BLYTHE v. LUNING.

United States Circuit Court, D. California.

March 13, 1882

McAllister & Bergin, for plaintiff.

Sidney V. Smith, Jr., for defendant.

SAWYER C.J.

The constitution provides as follows:

'A mortgage, deed of trust, contract, or other obligation by which a debt is secured, shall, for the purposes of assessment and taxation, be deemed and treated as an interest in the property affected thereby. Except as to railroad and other quasi public corporations, in case of debts so secured, the value of the property affected by such mortgage, deed of trust, contract, or obligation, less the value of such security, shall be assessed and taxed to the owner of the property, and the value of such security shall be assessed and taxed to the owner thereof, in the county, city, or district in which the property affected thereby is situate. The taxes so levied shall be a lien upon the property and security, and may be paid by either party to such security. If paid by the owner of the security, the tax so levied upon the property affected thereby shall become a part of the debt secured; if the owner of the property shall pay the tax so levied on such security, it shall constituted a payment thereon, and, to the extent of such payment, a full discharge thereof provided, that if any security or indebtedness shall be paid by any such debtor or debtors after assessment and before the tax levy, the amount of such levy may likewise be retained by such debtor or debtors, and shall be computed according to the tax levy for the preceding year. ' Const. Cal. art. 13, Sec. 4.

Under this provision of the constitution it was the duty of defendant to pay this tax. He was the party, and the only party, personally liable. It was his debt, and not the debt of plaintiff. The tax, however, is made a lien upon complainant's property as a means of securing its payment to the state. As it is a lien upon the land, the statute and constitution gives the mortgagor the right to pay the tax, as a means of relieving his land-- a means of securing a speedy discharge of the lien-- and allow him to deduct the amount so paid from the amount of his debt secured by the mortgage. But it is insisted that the right under the constitution is strictissimi juris; and that as the constitution only provides that, 'if the owner of the property shall pay the tax so levied on such security, it shall constitute a payment thereon, and to the extent of such payment a full discharge thereof,' he must pay the tax before he pays the debt, and on the subsequent payment of the debt, deduct the amount before paid for taxes therefrom, but cannot pay the whole debt to a creditor who demands the whole, and repudiates any...