No. 2,258.

#### THE PEOPLE OF THE STATE OF CALIFORNIA, Respondent, *v.*FRED. W. KOHL, Appellant.

Assessment. — Tax onMoktgage. — The owner of land who hadheen assessed with the same, and had paid the taxes thereon, and who, during the same year had sold the land and taken a note and mortgage, payable at a future day, for the purchase money thereof, was not liable to re-asessment with the amount of such mortgage for the same fiscal year.

Per "Wallace, J., Bhodes, O. J., concurring.

Assessment. — Tax on Moetgage. — In the fiscal year of 1868-9 no liability for assessment and taxation • could accrue upon a bond and mortgage which was not in existence on the first Monday in March preceding; that being the time fixed by the statute when the lien for taxes attached.

Appeal from the District Court of the Seventeenth District, Los Angeles County.

Judgment was for plaintiff, and defendant appealed.

The other facts are stated in the opinion.

*Chas. H. Larrabee,*for Appellant.

The thing taxed is palpably not a subject of taxation. (Hittell, 6154.) It is not the money of the defendant loaned nor is it his money at interest. It is at the best but a debt which may or may not be “solvent,” and if a solvent debt, it should have been so taxed. It is the credit given to Casad upon his purchase of the land which had already been taxed to Kohl. It is a case of triple taxation. First, the land is taxed to Kohl. Second, the money of Casad, which, at a future year he agrees to pay for the land, is, or ought to have been, taxed to him. Third, the promise to pay by Casad, is taxed to Kohl.

*Jo Hamilton,*Attorney-General, for Respondent, filed no brief.

Spbague, J.,

delivered the opinion of the Court, Temple, J., and Oeockett, J., concurring:

The findings of the Court fail to support the judgment. From these findings it appears that defendant was the own*128er of certain real estate in the county of Los Angeles, in tbe year 1868, wbicb was assessed to bim prior to the 23d of October of that year, for the fiscal year 1868-9, the taxes upon which assessment defendant subsequently paid; that defendant sold and conveyed the same land on.the 23d day of October to one Casad, receiving in consideration of such sale and conveyance $1,000 in hand and the note of Oasad for $8,000, payable at a future day, secured by mortgage on the same land; and from the complaint it appears that in November, 1868, the defendant, by order of the Board of Supervisors, was reassessed with the amount of this mortgage held by him from Casad.

This was clearly a double assessment, substantially, of the same property to the same individual, a proceeding, in our judgment, not contemplated by the statute and not authorized thereby.

Judgment reversed and cause remanded, with directions to the Court below to order judgment for defendant.

Wallace, 'J.,

delivered the following opinion, Erodes, C. J., concurring:

I concur in the judgment on the ground that no lien, and, consequently, no liability to immediate taxation had accrued upon the note and mortgage at the time they were assessed. I think that the lien is inseparable from the liability itself, and as the statute provided at that time that the lien should attach on the first Monday of March of each year, it follows that the property to be taxed must have been in existence at that time, and that its non-existence at that time, as in this case, is conclusive agajnst the asserted right to impose the tax in question.