Page:Harvard Law Review Volume 32.djvu/632

596 596 HARVARD LAW REVIEW laws of the State and the jurisdiction of its courts must be invoked for the preservation and enforcement of rights under the mortgage is an important consideration leading to this result." The reconciliation of these cases must be sought in the form of the taxing statute. If there is no special statute, only the ordi- nary provision for taxing all real and personal property within the state, the courts, following the ordinary practice and the pro- visions of the common law, will tax the land at its full value as the property of the mortgagor, since he owns the predominant, though not necessarily the largest, interest in it. The land having been once taxed at its full value, there is nothing left to tax except the debt it secures; and if the debt is due to a nonresident it is not within the jurisdiction. But by an express statutory pro- vision dividing the land for purposes of taxation between the mortgagor and mortgagee, it is possible for the sovereign to tax the interest of the nonresident mortgagee in the land, though the debt itself cannot be reached. This doctrine is very clearly set out in the opinion of Mr. Justice Gray in Savings &" Loan Society V. Multnomah County.^ In that case a statute of Oregon provided that a mortgage, whereby land was made security for a debt, should be taxed as land. In several decisions in the state and federal courts a tax levied under this statute had been held valid ; ^ and these decisions were followed in the Supreme Court. Mr. Justice Gray said : "The State may tax real estate mortgaged, as it may all other prop- erty within its jurisdiction, at its full value. It may do this either by taxing the whole to the mortgagor, or by taxing to the mortgagee the interest therein represented by the mortgage, and to the mortgagor the remaining interest in the land. And it may, for the purposes of taxation, either treat the mortgage debt as personal property, to be taxed, like other choses in action, to the creditor at his domicil; or treat the mortgagee's interest in the land as real estate, to be taxed to him, like other real property, at its situs." Tax on Foreign-Held Bonds, 15 Wall. (U. S.) 300 (1872). School District, 10 Sawyer (U. S.) 52 (1884); Crawford v. Linn County, 11 Ore. 482, 5 Pac. 738 (1884); Dundee Mortgage Co. v. Parrish, 11 Sawy. (U. S.) 92 (1885); Poppleton V. Yamhill County, 18 Ore. 377, 23 Pac. 253 (1890); Savings & Loan Society V. Multnomah County, 60 Fed. 31 (1894).
 * ^ 169 U. S. 421, 427 (1898), disapproving a dictum to the contrary effect in State
 * Mumford v. Sewall, 11 Ore. 67, 4 Pac. 585 (1883); Dundee Mortgage Co. v.