State v. Stiles

• Decision Date: 28 January 1925
• Docket Number: 6 Div. 242
• Citation: 212 Ala. 468,102 So. 901
• Parties: STATE ex rel. BLUE v. STILES, Judge of Probate, etc.
• Court: Alabama Supreme Court

102 So. 901

212 Ala. 468

STATE ex rel. BLUE v. STILES, Judge of Probate, etc.

6 Div. 242

Supreme Court of Alabama

January 28, 1925

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Petition of the State of Alabama, on the relation of J.A. Blue, for mandamus, to Hon. J.P. Stiles, as Judge of Probate, to require the filing and recording of a deed. From a judgment dismissing the petition, relator appeals. Affirmed.

E.N Hamill, of Birmingham, for appellant.

Harwell G. Davis, Atty. Gen., and A.A. Evans, Asst. Atty. Gen., for appellee.

GARDNER J.

Appellant J.A. Blue, purchased certain real estate in Birmingham the value of which was $48,200. The property at the time of the purchase was subject to a mortgage indebtedness of $25,000, which mortgage had been duly recorded. Said Blue paid $10,000 in cash, and, for the balance of the purchase price which he was to pay the vendor, he executed a mortgage on the property in the sum of $13,200. This mortgage was also duly recorded. Upon these two mortgages the tax known as the mortgage tax had been paid. Upon offering his deed for record, Blue tendered the sum of $10 as in full payment of the "deed tax" required under the provisions of the act of September 14, 1923, entitled:

"An act to impose a license or privilege tax on all deeds, bills of sale, and other instruments of like character admitted to record in the probate offices of this state." Gen.Acts 1923, p. 318.

The probate judge declined to receive the deed for record upon the ground the sum tendered was insufficient. The purchaser then instituted this mandamus proceeding to compel its acceptance. Upon consideration of the cause, the circuit court ruled in accordance with the probate judge, and dismissed the petition, from which judgment this appeal is prosecuted.

It is conceded by the state that mandamus is the appropriate remedy, and we pass to a consideration of the meritorious question in the cause, which involves a construction of the above noted act in reference to the question here presented.

In the instant case appellant purchased the entire interest of the owner in the whole of the property, the valuation of which is shown by the petition to be the sum of $48,200. The insistence that $10 only is due on the "deed tax" is based upon the assumption that from this valuation is to be deducted the full amount of the two mortgages on record. Such is the rule under the federal statute taxing recorded deeds, which expressly provides that the value of any lien or incumbrance on the property is to be excluded in ascertainment of the value of the property conveyed. Barnes' Federal Code, 1919-1924, Cum.Supp. page 626.

In the statute here under consideration, however, no such provision is found. Under our statute, in such a case as here presented, the tax is fixed at 50 cents for each $500 in value of the property conveyed, or fractional part thereof. The basis for the ascertainment of the tax in such a case is the value of the property conveyed, and no provision is made for any deduction to be made on account of any existing mortgage. So far as the body of the act is concerned, this much is plain, and needs no elaboration. The argument of appellant rests for support, however, upon a proviso found near the close of the act, which reads as follows:

"Provided, however, that this act shall not be so construed or enforced as to require the payment of privilege tax herein provided on mortgages; deeds of trust or other instruments in the nature of a mortgage or deeds or other instruments with vendor's lien except as to that part of the purchase price, which is paid in cash or other articles of value and which pay no other privilege tax for recording."

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