Redmond v. Rutherford Com'rs

• Decision Date: 31 October 1882
• Citation: 87 N.C. 122
• Court: North Carolina Supreme Court
• Parties: WILLIAM REDMOND and others v. COMMISSIONERS OF RUTHERFORD.

87 N.C. 122

WILLIAM REDMOND and others

v.COMMISSIONERS OF RUTHERFORD.

Supreme Court of North Carolina.

October Term, 1882.

MOTION for injunction to restrain defendants from collecting certain taxes, heard at Fall Term, 1881, of RUTHERFORD superior court, before Avery, J.

Motion allowed and defendants appealed.

Mr. M. H. Justice, for plaintiffs .

Messrs. W. P. Bynum and J. A. Forney, for defendants .

RUFFIN, J.

The plaintiffs are domiciled in the state of New York, but were owners of lands lying in several of the counties of this state, which had been sold by their agent, who keeps an office in the town of Rutherfordton in this state, and had power to sell and execute covenants for title and to collect the money. The covenants to pay the purchase money are solvent only because of the fact that the title to the lands is retained as a security.

These covenants for the purchase money amount to many thousands of dollars, and are all kept in the office of said agent at Rutherfordton; and the single question presented in the record is, whether they are liable to a state, county and corporation tax.

The judge in the court below held them to be exempt, and enjoined the authorities of the county and town from levying and collecting the tax thereon.

The statute providing for the levying and collecting of taxes in this state, after pointing out the several subjects of taxation, directs that “every person required to list property, shall make out and deliver to the township list-taker a statement verified by his oath of all the real and personal property, moneys, credits, investments in bonds, stocks, &c., in his possession or under his control on the first day of June, either as owner or holder thereof, or as parent, husband, guardian, trustee, executor, administrator, receiver, accounting officer, agent, factor, or otherwise.”

The theory of taxation is, that the right to tax is derived from the protection afforded to the subject upon which it is imposed.

The debts due to the plaintiffs upon their land contracts are personal estate, the same as if they were due upon notes or bonds; and so far as they have any substantial existence, they are in this state and not elsewhere. Their validity and protection, and the remedies for their enforcement, all depend upon the laws of this state, and in neither respect (or in any other that we can now think of) do they take any benefit from the laws of the plaintiffs' domicil. It is but just, therefore, that they should contribute towards the support of the only government which affords them protection, and help to defray the expenses incurred in so doing.

The actual situs and control of the property within this state, and the fact that it enjoys the protection of the laws here, are conditions which subject it to taxation here; and the legal fiction, which is sometimes for other purposes indulged, that it is deemed to follow the person of the owner, and to be present at the place of his domicil, has no application. In such case, the maxim mobilia personam sequuntur gives way to the other maxim in fictione juris semper æquitas existat.

In Alvany v. Powell, 2 Jones Eq., 51, after stating the proposition that the object of taxation is to support the government which protects persons and property, and that consequently the burden should be borne by such persons and property as are protected, Chief Justice PEARSON declares that the true principle upon which to...