Knight v. City of Boston , 159 Mass. 551 ( 1893 )

Holmes, J.

By Pub. Sts. c. 11, § 4, “Any loan on mortgage of real estate, taxable as real estate ” is not included among debts taxable as personal property. A majority of the court are of opinion that the bonds in question represent a loan on mortgage of real estate in Massachusetts, and that they are within the exception created by the foregoing words. The loan must be upon a mortgage which is taxable as real estate. This refers to §§ 14-16 of the same chapter, which, with the above mentioned exception in § 4, represents St. 1881, c. 304, “ An act relieving property from double taxation in certain cases.” By § 14, “ When any person has an interest in taxable real estate as holder of a duly recorded mortgage, . . . the amount of his interest as mortgagee shall be assessed as real estate,” etc. This seems to us to apply to the present case. It is true that the mortgage and the bonds are in different hands," the mortgage being held by a trustee. But this cannot be material. If it were, then in the case of an ordinary mortgage, if the mortgagee sold the note and did not assign the mortgage the note would become taxable in the hands of the purchaser. The double taxation which the act was passed to avoid is the same whether a trust intervenes or not, and we can see no legislative ground for a distinction. The act has no words which require the creditor to hold the mortgage in person. It only requires that the mortgage should be taxable as real estate. When a mortgage is made to a trustee for bondholders the mortgage interest is taxable to the trustee who represents them, as it would have been to the bondholders themselves if the mortgage had been made to them directly. In the present instance the trustees have paid the tax on the whole value of the land, which is equal to the amount of the bonds outstanding. The tax on the bonds must be abated. Judgment for petitioners.