The Montgomery advertiser., 1903-12-09
MORTGAGE TAX LAW
ATTORNEY GENERAL WILSON
 RENDERS AN OPINION.
Advises State Auditor That Condi- tional Sales are Not to Be Re- garded as Mortgages
 by the Act.

Tn an opinion rendered at the request of Auditor T. l.. Sowell, Attorney General Massey Wilson holds that conditional sales are not to be regarded as mortgages within the meaning of the mortgage tax law and are therefore not subject to the mortgage tax for recording.
 Such an instrument is clearly not mortgage or deed of trust, MT. Wilson holds in his opinion.
 A second question referred to the Att torney General by Auditor Sowell. was, should interest be included in ascertain ing the amount of indebtedness secured by the mortgage upon which the tax should be paid? The Attorney General held that the interest was not liable to the mortgage tax unless 1t was con- tained In the amount set down in the mortgage.
 The two questions have confused the judges of probate who are charged with the duty of collecting the 15 cents on the $1O0 tax levied for recording mort gages. A number of enquiries as to the application of the law on these questions have been made of the auditor. To se- cure an Interpretation of the law which would set at rest the confusion on the two points at issue the Attorney General was asked for an opinion.
 In full MT. Wilson's opinion is as fol- lows:
 | December 8, 1903 | Record tax on mortgages; conditional sales not subject to; when tax to be paid on interest; extension agreements
 Hon. Thos. l.. Sowell, State Auditor. Dear Sir: Complying with your request give you below my views relating tc several questions arising out of the stat ute requiring a record tax on mortgages T. The language of the statute is that | no mortgage, deed of trust, or other in
 strument in the nature of mortgage which is given to secure the payment o1
 any debt, executed so as to convey real property or any interest in real property or personal property which is situated within this State shall be received for | record unless the record tax shall have ! been paid.
 Does this require the payment of such @ tax upon contracts evidencing condi-
 tional sales offered for record? The lam guage is mortgage, deed of trust, or other instrument in the nature of 6 mortgage Contracts of conditional sales are not mentioned in terms. Such an in- | strument is clearly not a mortgage or deed of trust. I do not think 1t is an ] instrument in the nature of a mortgage within the meaning. of this statute.
 Mot only must the instrument be one of those named, but it must have been executed So as to convey title to property and to secure an indebtedness Contracts of conditional sales are not usually given for this purpose. They are executed by the purchasers of personal property as evidence that the title did not pass, and
 not to pass title to property to secure an indebtedness. do not think a record tax can be charged upon contracts of condi- tional sales. The debt due for the prop erty conditionally sold Is subject to tax ation as a solvent credit, at the rate at which property is assessed for taxation.
 ''2. You desire to know if the interest should be included in ascertaining the amount of indebtedness secured by the mortgage upon which the tax should be paid. The general rule is that in taxing property it should be assessed at its value at the time the tax is imposed. and not at its prospective or future value. If in- terest is expressly contracted for it be comes a primary indebtedness and not a mere incident to the debt Nevertheless, the benefit to the promisor is the use of the money and he has not had the use of the money, of course. at the time the in- strument is executed. Tax laws should not be construed literally in favor of the Government.
 Some courts and text writers go so far