State v. Smith

• Decision Date: 10 November 1890
• Citation: 68 Miss. 79,8 So. 294
• Court: Mississippi Supreme Court
• Parties: STATE OF MISSISSIPPI v. BOLTON SMITH ET AL

8 So. 294

68 Miss. 79

STATE OF MISSISSIPPI v. BOLTON SMITH ET AL

Supreme Court of Mississippi

November 10, 1890

FROM the circuit court of Madison county, HON. J. B. CHRISMAN Judge.

Section 497, code 1880, provides as follows: "Every person resident or non-resident, whether corporate or otherwise, and the agent of such non-resident, having money loaned at interest in this state, or employed in the purchase or discount of bonds, notes, bills, checks, or other securities for money, or employed in any kind of trade or business shall be taxable for the same in the county where such person may reside, or have a place of business, or be temporarily located at the time of the assessment," etc.

The board of supervisors of Madison county, at its August term 1889, held for the examination and approval of the assessment rolls, ordered the personal assessment roll to be corrected by the addition of certain loans made by the appellees to persons resident in that county and secured by mortgages on land situated in the county. The tax assessor had not placed these loans upon the roll, and the action of the board of supervisors was without notice to the persons whose loans were thus assessed. At the December meeting of said board the appellees, The American Freehold Mortgage Co., Limited, The Dundee Mortgage and Trust Investment Co., Limited, The United States Mortgage Co. of Scotland, Limited, The Scottish American Mortgage Co., Limited, and Bolton Smith united in a petition praying the board to strike from the assessment rolls certain loans, which, in the manner above stated, had been assessed to them.

The petitioners allege that they are non-residents of the state of Mississippi; that they have no place of business in said county, and that they did not, at the time the assessment referred to was made, have any location, temporary or otherwise, in said county, and that they did not have any agent in this state. Wherefore petitioners claim that the action of the board in causing said loans to be listed for taxation is illegal.

The statement of facts contained in the petition was not contradicted, but the board of supervisors, being of the opinion that the said loans were liable to taxation, refused the application, and petitioners prosecuted an appeal to the circuit court.

Testimony was taken in that court, and the loans in question were shown to have been made in accordance with the following course of business: Appellees, except Bolton Smith, are foreign corporations whose business is the loaning of money, and they have each loaned large sums, secured by mortgages on real estate in Madison county. The loans for the most part were procured by citizens of that county through an attorney resident there, and by him through Francis Smith, Caldwell & Co., who are located at Memphis, Tenn. The latter are brokers, whose main business is to procure for borrowers loans of money upon real estate in this state and elsewhere. Their principal place of business is in Memphis, Tenn. They are the established agents of appellees for loaning money in the state of Mississippi and neighboring states, and it is admitted that the power of attorney evidencing such agency is recorded in Madison county. In furtherance of this business, printed notices and advertisements are circulated by them, and blank applications and forms are furnished by them for the use of persons desiring to borrow. The application required by the borrower recites that Francis Smith, Caldwell & Co. are constituted the borrower's agents for procuring a loan on the terms therein stated. Upon receipt of the application they send an inspector to appraise the land offered as security, and if satisfied as to this, they notify the borrower that the loan will be made, if the title is approved. The borrower is then required to furnish at his own expense a complete abstract of title of the lands, to be made by an attorney of good standing, and the fee of the attorney, as well as the entire expense of the abstract, is paid by the borrower. If the abstract thus furnished shows a good title, notes and a mortgage in favor of some one of the appellees are prepared by said firm and sent to the borrower to be executed, and when returned duly executed, the money is sent by them to the borrower.

Neither Francis Smith, Caldwell & Co. nor any of the appellees have an agent or place of business in this state. Negotiations with Francis Smith, Caldwell & Co. for loans are generally conducted through an attorney in the county where the loan is made, and to facilitate business the...