Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1881-03-17

| ~ Is 0lLnSutb 70 IIalnLiH mere cl6fflS
that the effect of such declaration is to divide
the ownership of the land, SO that the mort
gagor and mortgage shall be deemed the
owners of separate titles TO the land in pre-
portion to each other as the amount secured
J by the mortgage is in proportion to the value
!. OF the entire estate. But l am inclined to
take different view. In my Judgment this
declaration simply goes to the extent of at
2 taching the mortgage debt to the land for the
: purpose of fastening a lien thereon for the tax
upon the mortgage debt This view is carried
out by other provisions, by which either party
d is authorized to pay the tax upon the land or
: upon the mortgage debt, and if the tax upon
e the land be paid by the mortgage he may
charge it up, and collect it as part OF the
sum secured by his mortgage; and if the tax
! upon the mortgage debt be paid by the mort
D gsgor, he may charge the amount as SO much
+ paid upon his debt.
The manifest intention OF the Convention
was to frame Constitution that would campe
5 the payment of taxes upon secured debts ;
that is, to make taxable thas which was be-
fore not taxable. The effect of the provisions
of the Constitution was the creation, for pur-
poses of revenue, of new species of prop
erty, and the exception. in part, of certain
other property from taxation.
1t will also be observed that it is not the
mortgage interest in the land which is to be
assessed and taxed, but the "value of the
mortgage, trust deed, contract" etc.
Again, in this State mortgage is not, for
general purposes, an interest in, or title to
the land u-ortgaged, but is a mere incident TO
the indebtedness, and affects the land only to
the extent of subjectiBg it to a lien for the
payment Of the indebtedness secured.
This is the sole and entire effect of the
constitutional provision making a mortgage
an interest in real estate for the purposes of
revenue, and means no more than if the
clause had read, A" Mortgages shall be liable
to assessment at their value for taxation, aud /
the tax assessed thereon shall constitute
lien against the mortgaged property"
EFFECT PRODUCED BY IT.
But it is said the effect produced by Ibis |
construction viii be TO lift portion of the |
burden from one of the contracting parties /
and place it upon the shoulders of the other, |
| and at cursory glance it seems to be SO. /
This, however, is not the correct view. The |
new Constitution amounted to an entire revis-
ion OF the fundamental law of the State.
1t made certain property liable to taxation
! which before had been exempt and EXEMPTED /
property which before had been liable.
Growing crops. for instance, were formerly
liable to taxation, but are by this instrument
exempted, while chooses in action were for
merly exempted and are now liable. 1t was
not the intention Of the trainers of the Con-
.stitution to take the burden from the mort
gagor and put IL upon the mortgage, but TO
make the mortgagee's previously exempt
property liable to taxation, and while the
mortgagor's burden is pro taato hghtened, the
Constitution does not in intention or in fact
impair the obligations of the contract be-
tween the parties At the time the security
was given, mortgages being unassessable, the
parties did not evidently consider the posi-.
bility of taxes being laid thereon, and made
no contract in relation thereto; but they
knew at the time that the land would be as
sessed and taxed, and since tie mortgas6r
might neglect to pay his taxes, and thereby
endanger the security, the mortgage ex-
acted clause permitting him TO pay taxes
and tack the amounts paid to his principal
debt, and hold the land for the whole.
DEDUCTION AND CONCLUSION.
Suppose the new Constitution had made all
the provisions above quoted. except the one
exempting the mortgaged land in part from
assessment and taxation. Then the land
would have been assessable at its full
value, and the mortgage debt at is full value,
the whole being lien against the land. In
that case il could hardly be claimed that the
tax upon the value of the secured indebted.
ness was tax upon the land and if not in
that case, the mere exemption of part of
the value of the land from taxation cannot
be considered as changing the tax laid upon
the mortgage from tax upon his money
loaned TO tax upon the land to which he
looks for security.
My conclusion is that the S135 paid by
plaintiff for taxes upon the mortgage debt
was not tax upon or against the land within
the meaning Of the contract between the par
ties, and cannot be recovered back from the
defendant.
The only remaining question is as to the
amount to be allowed plaintiff for an attor-
'ney's fee for foreclosing the mortgage. a
majority of the witnesses examined fixed the
amount of reasonable charge at FIVE per
cent of the amount found due, but some
thought somewhat smaller sum sufficient.
In my judgment, from the evidence the sum
of $500 is reasonable and the fee will be fixed
at that figure.
Counsel will prepare and submit findings
and judgment in accordance with the views
herein expressed. S. c. benson, Judge.
Mr.. BUsH's NEW PIcTURE.-Norton Bush,
artist, yesterday opened his studio for the
exhibition of his latest and what may be
justly termed his best work. The painting
will be on exhibition, by general desire, to-
day from 10 A NJ. to P. NJ, and the public
is privileged to view the artists work. by his
courtesy. The Painting is entitled Under
the Equator" 1t is a composition The
mountains in the right OF the background are
studies from nature, however. The foliage
and water in the center foreground form q
composition representative of tropical scenery.
1t is intended, however, to be very char
acteristic in its aerial effects, dis
tanees, perspective, lights and shadows
of tropical scenery. The most celebrated of
paintings of tropie scenery is Church's
Heart OF the Andes" It is well known to
be composition 1t is considered great
triumph of landscape art. Its truth fulness
relates to realistic art as the highest order of
fiction relates to real life. In Mr. Bush's
composition this element is fully justified
While this is Mr.. Bush's best work in tropic
effects, its finest quality is found in the ease,
or repose, of its perspective. As to its color
ing, it is gorgeous, almost horid, but it is free
from criticism on this point because it is
tropic view. The highest merit in, the pic
ture is found in the very successful at
tempt to portray atmospheric coloring
For instance, there is rose-tint over the
mountains in the left backgreund-on the OBJ
verse slope of the range-which rises to the
highest realm of art. It is pervading color
in the mist. or haze, and is exquisite in the
extreme. Could all the other elements of the
work be held up to that level, it would make
the painter and his painting at once famous.
1t is picture in which Mr.. Bush may take
just pride and that will occupy high
place among art works.
SPECIAL CoUNsEL.-An informal meeting
was held at the Capital Hotel last evening by
Supervisors J. w. Wilson, Samuel Blair, E.
Christy and S. W. Butler, of this county,
and Supervisors j. B. Russell and E. J.
Sparks, of Placer county, also T. J. Nichols,
County Clerk of Placer, and District Attor-
ney Buckley, in relation to the pending suits
OF c. 2. Huntington to restrain Tax Collec-
tors from collecting the taxes assessed by the
State Board of Equalization against the
property of the Railroad Company The
object of the meeting was to take into con-
sideration the proposition submitted by the
convention of District Attorneys recently
held at San Francisco, for the employment
of special counsel, on the part of the counties
at an expense of $4,000, to be paid by the
several counties jointly. It was decided not
to accept the proposition, but to rely upon
tie Attorr e. General and such counsel as he
may select to aid him.
The FERN BREAK.-The Trustees of Levee
District No. met last evening at Mesicks
Office TO examine the bids for closing the
Fern-levee break below the city Action was
finally postponed until 8 o'clock this MORN