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chaser a certificate describing the premises purchased by him, showing the amount paid therefor, or, if purchased by the person in whose favor the execution or decree is, the amount of his bid, the time when the purchaser will be entitled to a deed, unless the premises shall be redeemed, as provided in this act.” Section 18 provides, in substance, that any defendant, his heirs, administrators, or assigns, or any person interested in the premises under the defendant, may redeem the property so sold by paying to the purchaser, or the oflicer who sold the same, for the benefit of the purchaser, the sum of money for which the premises were bid off, with interest from the time of sale; and upon such payment the sale and certificate shall be void. It will be observed that it is only in the case where the court orders a sale that there is any right of redemption. So that this assignment of error is resolved into the contention that it was the duty of the court to order a sale, so as to give the plaintiff a chance to redeem.

But it has been repeatedly held by the supreme court of Illinois that the courts of that state may under certain circumstances decree a strict foreclos

Johnson v. Dunnell, 15 III. 97; Wilson v. Geisler, 19 Ill. 49; Weiner v. Heintz, 17 Ill. 259; Stephens v. Bichnell, 27 Ill. 444; Farrell v. Parlier, 50 Il. 274; Boyer v. Boyer, 89 Ill. 447. A mortgagor, or other creditor, has not, therefore, in every case the right to insist that the court shall order a sale. It is settled by the decisions of that court that when the property is of less value than the debt for which it is mortgaged, and the mortgagor is insolvent, and the mortgagee is willing to take the property in discharge of the debt, the court is justified in decreeing a strict foreclosure, unless there are other incumbrancers, purchasers of the equity of redemption, or creditors, to object. The evidence satisfies us that a public sale for cash of the trust property now remaining undisposed of would fall short of paying the advances of Walker, which now amount to near $30,000, and that Flagg is insolvent. He does not appear to be the owner of any assets, and Sibley has an unsatisfied judgment against him for $18,685.22, with interest from February 8, 1875. Flagg is under no personal liability to Walker for the advances made by the latter, and if Walker gets title to the property in question under the decree of the circuit court, he is entitled to no other relief against Flagg. The property satisfies his demand. There are no other incumbrancers, and no purchasers of the equity of redemption, and Sibley is the only creditor, and he, although a party to the decree of the circuit court, has not appealed. This is, therefore, a case where, if the suit was for the foreclosure of a mortgage, the court might, according to the local law, decree a strict foreclosure.

But there is no mortgage in this case, and this suit is not brought for the foreclosure of a mortgage, or other lien, or to enforce the payment of money by sale. The original bill filed by Mrs. Flagg was for the settlement of a trust and the redemption of real estate in the hands of the trustee from liens alleged to be in the nature of a mortgage for money advanced by him for the purpose of the trust. The claim of the bill was that although the defendant Walker had advanced money to pay the debt of Flagg, which was a lien upon the property held by him in trust, yet he had neglected his trust and wasted the trust estate, and that the money lost to the trust property by his neglect and waste should be charged against the moneys advanced by him, and that upon a just and fair settlement there would be nothing due the trustee for his advances, and the prayer was for a reconveyance by the trustee.

The cross-bill of Walker averred that the conveyance by Flagg to him was absolute, and prayed that it might be confirmed, and his right to the peaceable and quiet enjoyment established; but if the court should be of opinion that his title to the property was to be considered a mortgage, that the amount due him from Flagg might be declared a lien thereon, and if the sum so due was not paid within a day to be fixed by the court, the conveyance already made to him of the property should be declared absolute.

.877

In view of the declaration of trust made by Walker on April 12, 1875, it is* clear that the transaction between Flagg and Walker was not a mortgage. A mortgage is a deed whereby one grants to another lands, upon condition that if the mortgagor shall pay a certain sum of money, or do some other act therein specified, at a day certain, the grant shall be void. Conard v. Atlantic Ins. Co. 1 Pet. 386; Montgomery v. Bruere, 4 N. J. Law, 268; Erskine v. Townsend, 2 Mass. 495; Lund v. Lund, 1 N. H. 41. In this case there was a conveyance by Flagg to Walker of certain property, to be administered and sold by the latter, and in consideration of the conveyance Walker agreed to pay certain specified debts owing by Flagg, and if, after the payment of the debts, there was any residue resulting froin the sale of the property, to pay Flagg one-half of such residue. The conveyance was made to secure neither the payment of any money nor the performance of any act by Flagg. All the money to be paid was to be paid by Walker; all the acts to be done were to be done by him. There was no agreement by Flagg to pay Walker any money in any event. Flagg never owed Walker any money by reason of the matters shown by the record in this case, and never came under any obligation to him. Walker was to reimburse himself out of the property conveyed to him by Flagg, and the parties never contemplated a reconveyance by Walker to Flagg of the property in question. We are not required to apply to such a transaction the rules prescribed by the statute of Illinois for the foreclosure of a mortgage. It is the case of a trust. The bill was filed for settlement of the trust, and the question we are to decide is whether, under the circumstances shown by the testimony, the appellants are entitled, as matter of equity and right, to have a sale of the premises.

The only interest which remained to Flagg in the property conveyed by him to Walker was his right to receive one-half the net proceeds of its sale, after repayment to Walker of all the moneys advanced by him for Flagg, and the expenses incurred in the administration of the trust. But the decree of the circuit court has, in effect, given the appellants the entire net proceeds of the property after the payment of Walker's advances; for, on the payments by Flagg within six months of the sum found due to Walker, it directs a re conveyance of all the trust property remaining unsold. Upon the averments of their bill they have no right to demand a sale. The property was conveyed to Walker to dispose of “at pleasure, and according to his best judgment, and he was “in all things to be the sole judge of the time and manner of using and disposing of said property.” The right thus to dispose of it he had bought and paid for, and he could not be deprived of it unless he was wrongfully using it to the damage of the Flaggs. There is no charge in the bill that he has abused that discretion, or that the neglect to sell at the present time would result in loss to the appellants.

The prayer of the original bill was not for a sale, but for a reconveyance by Walker to the appellants of the trust property still remaining in his name. The decree of the circuit court is in accordance with their prayer, first, however, requiring a repayment to Walker of his advances. It does not, therefore, lie in the mouths of the appellants to object that the decree does not order a sale which they did not pray for, and which they have not shown themselves to be entitled to demand as a matter of right.

The last objection to the decree of the circuit court is that it included the amount paid by Walker for the mortgage or trust deed upon the “homestead," with the advances made by him and the expenses incurred in the management of the trust, and decreed a strict foreclosure for the whole sum upon all the property. The contention of appellants is, that for the sum paid by Walker for the purchase of this mortgage he should be limited for his security to the property covered by the mortgage. But there is no warrant for this claim in the declaration of trust of April 12, 1875. The mortgage on the homestead was one of the debts which Walker had expressly agreed to

v.58—45

pay, and it was the understanding that he was to be reimbursed for his ad. vances, not merely out of the mortgaged premises, but out of the proceeds of all the property conveyed to him by Flagg, so far as they might be necessary. For the purpose of securing Walker, the whole property was regarded and treated by the parties as an entirety. The fact that Walker's payment of the mortgage debt took the form of a purchase of the mortgage lien does not deprive him of that security.

We find no error in the proceedings and decree of the circuit court. But as the time limited by the decree, to-wit, April 1, 1881, for the payment to Walker by W. F. Flagg, or some one of the defendants to the cross-bill, of the said sum of $25,207.18, with interest, has passed, we think the time for such payment should be extended. The appellants, while they were litigating their rights with Walker in this court, having given an appeal bond, which superseded the decree of the circuit court, were not required to make the payment.

We therefore direct that the decree of the circuit court be so modified as to extend the time for the payment of the sum coming to Walker for the period of six months from the filing of the mandate of this court in the circuit court; and, as so modified, the decree of the circuit court is affirmed.

069.

(113 U. S. 689)
BOYER 0. BOYER and others, County Com'rs, etc.

(March 2, 1885.) 1. Taxation-NATIONAL BANK SHARES.

The fornier decisions of this court do not sustain the proposition that national bank shares may be subjected, under the authority of the state, to local taxation where a very material part, relatively, of other moneyed capital in the hands of individual citizens within the same jurisdiction or taxing district is exempted from

such taxation. 2. SAME-UNIFORMITY AND EQUALITY.

While exact uniformity or equality of taxation cannot be expected under any system, capital invested in national bank shares was intended by congress to be placed upon the same footing of substantial equality in respect of taxation by state authority as the state establishes for other moneyed capital in the hands of individual citizens, however invested, whether in state bank shares or otherwise. In Error to the Supreme Court of the State of Pennsylvania. *Chas. W. Wells, for plaintiff in error. W. J. Whitehouse, for defendant in error.

HARLAN, J. The plaintiff in error brought this suit in a state court of Pennsylvania for an injunction restraining the commissioners of Schuylkill county from levying a county tax for the year 1883 upon certain shares in the Pennsylvania National Bank—an association organized under the national banking act. The suit proceeds upon the ground that such levy violates the act of congress prescribing conditions upon state taxation of national bank shares, in this: that other moneyed capital in the hands of individual citizens' of that county is exempted, by the laws of Pennsylvania, from such taxation. A demurrer to the bill was sustained, and the suit was dismissed. Upon appeal to the supreme court of Pennsylvania that judgment was affirmed, on the ground that the laws of the state, under which the defendants sought to justify the taxation, were not repugnant to the act of congress.

State taxation of national bank shares was permitted by the forty-first section of the act of congress of June 3, 1864, subject to the restriction that it should not be at a greater rate than that imposed upon other moneyed capital in the hands of individual citizens of the same state. 13 St. c. 106, § 41. But that section contained a proviso to the effect "that the tax so imposed, under the laws of any state, upon shares of any of the associations authorized by this act, shall not exceed the rate imposed upon the shares in any of the banks

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organized under the authority of the state where such association is located." The case of Lionberger v. Rouse, 9 Wall. 469, arose under that act. The question there was whether shares in a national bank were exempt from state taxation merely because two state banks of issue, organized before the national banking act was passed, and which held a very inconsiderable portion of the banking capital of the state, had by their charter the right to pay a certain per cent. on the amount of their capital stock in full of all state bonus and taxes,-an amount less than that imposed upon national bank shares. The shares of other associations in the state, having the privileges of banking, except the power to emit bills, were taxed like the shares in national banks. It was held that congress meant, by reference in the act of 1864 to taxation of state bank shares, to require, as a condition to taxation by the state of shares in national banks, that she should, unless restrained by valid contract, tax in like manner the shares of banks of issue of her own creation. There was no question in that case of discrimination against capital invested in national bank shares in favor of moneyed capital, which was invested otherwise than in bank stock.

But the act of 1864 was so far modified by that of February 10, 1868, (15 St. c. 7,) that the validity of such state taxation was thereafter to be determined by the inquiry, whether it was a greater rate than was assessed upon other moneyed capital in the hands of individual citizens, and not necessarily by a comparison with the particular rate imposed upon shareg*in state banks. The effect, if not the object, of the latter act was to preclude the possibility of any such interpretation of the act of congress as would justify states, while imposing the same taxation upon national bank shares as upon shares in state banks, from discriminating against national bank shares, in favor of moneyed capital not invested in state bank stock. At any rate, the acts of congress do not now permit any such discrimination. Section 5219 of the Revised Statutes is as follows:

"Nothing herein [the national banking act] shall prevent all the shares in any association from being included in the valuation of the personal property of the owner or holder of such shares, in assessing taxes imposed by authority of the state within which such association is located, but the legislature of each state may determine and direct the manner and place of taxing all the shares of national banking associations located within the state, subject only to two restrictions: that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state, and that the shares of any national banking association, owned by nonresidents of any state, shall be taxed in the city or county where the bank is located, and not elsewhere. Nothing herein shall be construed to exempt the real property of associations from either state, county, or municipal taxes to the same extent, according to its value, as other real property is taxed." Rev. St. $ 5219.

Whether the proposed taxation for county purposes of the plaintiff's shares of national bank stock is at a greater rate than is assessed, for like purposes, on other moneyed capital in the hands of individual citizens, is the single question upon which depends the affirmance or reversal of the judgment.

Before examining the statutes of Pennsylvania upon the subject of taxa tion, it will be well to ascertain how far the decisions of this court have fixed the true meaning of the words “at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state.

The supreme court of Pennsylvania is of opinion that the commissioners are fully co sustained by the decision in Hepburn v. School Directors, 23 Wall. 480. JD that case the question was whether the owner of national bank shares*residing in Cumberland county, Pennsylvania, was exempt from a local tax by reason of a statutory exemption from ail taxation in that county, except for state purposes, of “mortgages, judgments, recognizances, and money owing

upon articles of agreement for the sale of real estate," except mortgages, judgments, and articles of agreement given by corporations. Laws Pa. 1868, p. 61. The value of such securities, (if they could all be properly so described,) as compared with other moneyed capital in the hands of individual citizens in that locality, did not appear in that case. What the court had to decide, and all that it did decide, was whether the exemption from local taxation of mortgages, judgments, recognizances, and money due upon agreements for the sale of real estate, in the hands of individuals, was a partial exemption only; that is, whether it was so substantial in its nature and operation as to affect the integrity of the general assessment for local purposes. The court, after observing that money at interest was not the only moneyed capital to which the national banking act had reference, and that the words “other moneyed capital” included investments in bank shares and other stocks and securities, said: “This is a partial exemption only. It was evidently intended to prevent a double burden by the taxation both of property and debts secured upon it. Necessarily, there may be other moneyed capital in the locality than such as is not exempt. Some part of it only is. It could not have been the intention of congress to exempt bank shares from taxation because some moneyed capital was exempt." That case is authority for the proposition that a partial exemption by a state, for local purposes, of moneyed capital in the hands of individual citizens, does not, of itself and without reference to the aggregate amount of moneyed capital not so exempted, establish the right to a similar exemption in favor of national bank shares held by persons within the same jurisdiction. But it is by no means an authority for the broad proposition that national bank shares may be subjected to local taxation where a very material part, relatively, of other moneyed capital in the hands of individual citizens within the same jurisdiction or taxing district is exempted from such taxation. Indeed, such an interpretation of the statutes might entirely defeat the purpose that induced congress to confine state taxation of national bank shares within the limit of equality with other moneyed capital; for it would enable the states to impose upon capital invested in such shares materially greater burdens than those to which other moneyed capital in individual hands is subjected.

The case of Adams v. Nashville, 95 U. S. 19, is also relied upon to support the judgment below. The question there raised was whether an alleged exemption from municipal taxation, under an ordinance of a city, of its interest-bearing bonds, operated to exempt from like taxation the shares in a national bank located in the same city. The court held that as the ordi. nance had been abrogated by subsequent legislation of the state, no such ex. emption existed. However, considering the question on its merits, it was said that the act of congress did not intend "to cut off the power to exempt particular kinds of property, if the legislature chose to do so.” In illustration of this view reference was made to exemptions of homesteads, household furniture, school-houses, academies, and libraries,—regulations sustained, as a general rule, upon grounds of policy and humanity, or because the property exempted is employed for objects more or less connected with the public welfare. And it was observed that the discretionary power of the legislature over such subjects remained as before the act of 1868; the intention of that statute being to protect corporations formed under its authority from unfriendly discrimination by the states in the exercise of their taxing power. “That particular persons or particular articles are relieved from taxation, is not a matter to which either class can object." It is scarcely necessary to say that this language leaves untouched the question as to the power of the state to subject the shares of national banks to taxation, when a very material portion of other moneyed capital in the hands of individual citizens and corporations is ex. empted from like taxation.

The court has had occasion to examine the provisions of the national banking

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