Page:Harvard Law Review Volume 32.djvu/631

595 JURISDICTION TO TAX 595 conversely notwithstanding the situs of the land, it may be taxed at the domicile of the owner /° Yet the conveyance of the land in mortgage is the creation of an interest in land, whether we call that interest the legal own- ership, subject to an equity of redemption, or a mere lien on the land for security. The land itself being within the taxing power of the sovereign of situs, it is doubtless within his power to tax each interest in the land, if he prefers this to taxing the entire body of such interests once for all in the name of the owner of the predominant interest. A tax on the interest of the mortgagee is therefore within the jurisdiction of the sovereign of situs."^ In Kinney v. Treasurer 6* Receiver General^ Knowlton, C. J., said: "Under the laws of Massachusetts a mortgagee takes not merely a lien upon the land as security, but he holds the legal title to it, subject to a right of redemption in the mortgagor. The interest of the mortgagee is made subject to taxation by our statutes, and the property taxable to the mortgagor is diminished by a deduction of the value of the in- terest held by the mortgagee. . . . While, for general purposes the interest of the mortgagee is treated as personal property, it has a local situs, and carries with it an ownership of the land until it is redeemed by the payment of the debt in performance of the condition. The debt, which is the obligation of the debtor to pay, and the land, which is the security for the payment of the debt, are individual parts of a single valuable property in the mortgagee, which may be made available in different ways. . . . The same doctrine has been held in States where the mortgagee has only a lien upon real estate. . . . The fact that the IS Mont. 460, 39 Pac. 575 (1895); State v. Earl, i Nev. 394 (1865); Crispin v. Van- syckle, 49 N. J. L. 366, 8 Atl. 120 (1887); People v. Smith, 88 N. Y. 576 (1882); Matter of Preston, 75 App. Div. 250, 78 N. Y. Supp. 91 (1902); Grant v. Jones, 39 Ohio St. 506 (1883); Myers v. Seaberger, 45 Ohio St. 232, 12 N. E. 796 (1887). " Mackay v. San Francisco, 113 Cal. 392, 45 Pac. 696 (1896); Kirtland v. Hotchkiss, 42 Conn. 426 (187s), 100 U. S. 491 (1879); Darcy v. Darcy, 51 N. J. L. 140, 16 Atl. 160 (1888); BuUock V. Guilford, 59 Vt. 516, 9 Atl. 360 (1887). Fidelity T. & S. V. Co., in Ky. 667, 64 S. W. 470 (1901) (semble); AUen v. National State Bank, 92 Md. 509, 48 Atl. 78 (1901); Kinney v. Treasurer and Receiver General, 207 Mass. 368, 93 N. E. 586 (191 1); Common Council of Detroit v. Assessors, 91 Mich. 78, 51 N. W. 978 (1892); In re Merriam, 147 Mich. 630, in N. W. 196 (1907); Sus- quehanna Canal Co. v. Commonwealth, 72 Pa. 72 (1872); Mumford v. Sewall, 11 Ore. 67, 4 Pac. 585 (1883).
 * ^ Savings & Loan Society v. Multnomah Coimty, 169 U. S. 421 (1898); Frankfort v.
 * ^ 207 Mass. 368, 93 N. E. 586 (191 1).