Home Owners' Loan Corporation v. Anderson

• Decision Date: 23 January 1937
• Docket Number: 33297.
• Citation: 64 P.2d 14,145 Kan. 209
• Parties: HOME OWNERS' LOAN CORPORATION v. ANDERSON.
• Court: Kansas Supreme Court

64 P.2d 14

145 Kan. 209

HOME OWNERS' LOAN CORPORATION v. ANDERSON.

No. 33297.

Supreme Court of Kansas

January 23, 1937

Syllabus by the Court.

In mortgage foreclosure action instituted by it, Home Owners' Loan Corporation held entitled to introduce mortgage in evidence without having paid statutory mortgage registration fee, since such fee was a tax which corporation as an instrumentality of federal government was not required to pay (Rev.St.Supp.1933, 79--3101, 79--3102, 79--3107; Home Owners' Loan Act of 1933, 48 Stat. 128; § 4(a), as amended, 12 U.S.C.A. § 1463(a).

Where mortgages are given the Home Owners' Loan Corporation by residents of Kansas, the corporation is not required to pay the mortgage registration fee provided by R.S.1933 Supp 79--3101 et seq., and the mortgages may be received in evidence even though the registration fee has not been paid.

Appeal from District Court, Cowley County; Oliver P. Fuller, Judge.

Action by the Home Owners' Loan Corporation against Hazel Anderson. Judgment for defendant, and plaintiff appeals.

Reversed with directions.

George W. Stanley, of Arkansas City, and H. C. Castor, of Wichita (George S. Allen, of Topeka, of counsel), for appellant.

SMITH Justice.

This was an action on a promissory note and to foreclose a mortgage securing this note. The judgment was for the defendant sustaining a demurrer to the amended petition of plaintiff. Plaintiff appeals.

The plaintiff is the Home Owners' Loan Corporation. Defendant borrowed money from that corporation and gave a mortgage on the real property in question. The petition set out all the essential facts and alleged the nonpayment and that the note was due. The petition pleaded that the plaintiff was an instrumentality of the United States and as such was not subject to the payment of the fee to the state of Kansas known as the mortgage registration fee, provided in R.S.1933 Supp. 79--3101 and 79--3102. The basis of the demurrer filed by the defendant and sustained by the lower court is the above allegation of the petition.

R.S.1933 Supp. 79--3107 provides as follows: "Any mortgage of real property executed on or after March 1, 1925, on which the registration fee as herein provided has not been paid, shall not be filed for record by any register of deeds, and such mortgage shall not be received in evidence in any suit, action or proceeding, and no judgment, decree or order for the enforcement thereof shall be rendered, made or entered in or by any court in this state. (L.1925, ch. 273, § 7; Feb. 23.)"

The theory of the defendant was that since the Home Owners' Loan Corporation had not paid the mortgage registration fee, the mortgage could not be filed for record nor received in evidence-- hence could not be foreclosed.

There can be but little doubt that the mortgage registration fee, as provided in the above sections, is a tax, and not a fee charged for the administrative work necessary in recording the mortgage for the protection of land titles. This court has so characterized it in Arkansas City Savings, B. & L. Ass'n v. Murray, 127 Kan. 208, 272 P. 135; also in Wheeler v. Weightman, 96 Kan. 50, 149 P. 977, L.R.A. 1916A, 846.

The question then is whether the state can tax the mortgages held by the Home Owners' Loan Corporation. The Home Owners' Loan Corporation was created under the act of Congress, part of which is as follows: "The Board is hereby authorized and directed to create a corporation to be known as the Home Owners' Loan Corporation, which shall be an instrumentality of the United States, which shall have authority to sue and to be sued in any court of competent jurisdiction, Federal or State, and which shall be under...