Fitch and Another v. The City of Madison and Another.

Money on hand is personal property, and, if not exempt, is liable to be taxed as such, but when it is invested in other personal property it is no longer money. Here it is shown by the complaint, that at the time of these assessments, Fitch & Son had in their possession, in the city of Madison, a large amount of pork, greatly exceeding in value their actual capital, or the amount assessed against them. Their entire capital was invested in the pork, and if subject to a city tax it was as pork, and not as capital invested in pork. If the pork was liable to be taxed, the whole, and not merely a part of it, was so liable. The assessment of capital invested in pork" was not authorized by the city charter, and is, therefore, illegal.

66

But, under the averments in the complaint, was the pork in possession of Fitch & Son liable to be taxed? The solution of this question depends upon the meaning of the words, "goods and produce for export," as used in the amended charter.

This question was presented to this court in a former case between the same parties, and is reported in 18 Ind. 33. And while we fully concur in the principle laid down by the court in that case, that "it is a settled rule that laws exempting property from taxation are to be strictly construed," we cannot concur in the conclusions arrived at by the court in the application of that principle to the case under consideration. Indeed, it seems apparent that a very full consideration was not given to the question in that

case.

By the charter of the city, personal property in the possession of a resident of the city, between the 1st of April and the 1st of July of the same year, and subject to taxation, is liable to be assessed for the current year. In the case at bar, it is averred in the complaint that Fitch & Son, during all that time, had no money or other personal property except their pork, all of which was for export, and was then in process of being exported to a foreign market. Pork is clearly included within the word produce,

Fitch and Another v. The City of Madison and Another.

used in the exception in the amended charter. It was, then, "produce for export," and within the very letter of the

statute.

Madison is a commercial city; many of her citizens were engaged in trade and commerce; in purchasing the products of the surrounding country, brought there for market by the railroads and other means of conveyance, and in exporting or shipping them by the river to New Orleans and other distant markets, beyond the limits of the state. It was the common interest of the city that this trade and commerce should be encouraged, as it aided in bringing to the city both population and wealth. And it is proper that the amendment of the charter, which we may infer was enacted at the request, or with the assent, of the people of that city, or their representatives, should be construed in the light of these surroundings.

Under the original charter, all personal property owned by, or in the possession of, a resident of the city, was subject to be taxed. Under that provision, the resident dealer in produce was not only taxed to the extent of the capital used by him in his business, but he was taxed on all the property in his possession, whether owned by himself or others, while the non-resident dealer would not be liable to be taxed at all. This discrimination would necessarily operate onerously on the resident dealer. Under these circumstances the amendment was adopted, providing that taxes might be levied on all personal property owned by a resident, except "goods and produce for export, or in transit, owned by, or in the possession of, any inhabitant of the city." The original charter taxed the produce owned by the resident dealer, though held for export. This provision was evidently deemed unjust or wrong, otherwise no amendment would have been regarded as necessary. The amendment, however, was made, and by its terms exempts from taxation goods and produce for cxport, or in transit, owned by, or in the possession of, any inhabitant of the city.

Case v. Bumstead and Others.

As a matter of policy, the exemption may go too far, though it only placed the resident dealer on an equality with the non-resident one; but that was a proper matter for the legislature.

We think that the pork owned by the appellants for export, was exempt by both the letter and spirit of the amended charter, and that the court below erred in sustaining the demurrer to the complaint.

The judgment is reversed, with costs, and the cause remanded to the Circuit Court for further proceedings in accordance with this opinion.

C. E. Walker and M. G. Bright, for appellants.
J. Sullivan, for appellees.

CASE v. BUMSTEAD and Others.

VENDOR'S LIEN.-A sold to B certain real estate, by a contract in writing, for the sum of $2,500. By the terms of the contract, A was to execute a deed of conveyance, on the payment of $1,000,at a day fixed, and was to receive the notes of B for the residue of the purchase money, payable at one and two years from date. It was further stipulated that on the execution of the deed, B should have possession of the premises, "free from rent or charge." The deed was executed and delivered at the time stipulated. Afterward, A caused the execution of the contract of sale to be proved by the subscribing witness, and the contract to be recorded in the recorder's office. Suit by A to enforce a vendor's lien against the vendees of B, who had purchased after the recording of the contract of sale, but without actual notice of the equitable lien.

Held, that section 35 of the "Act concerning real estate and the alienation thereof," 1 G. & H. 266, authorizes the recording of executory contracts for the sale of lands, and the record of such an instrument is constructive notice of its contents to all subsequent purchasers or mortgagees.

Held, also, that while the record of the deed from A to B was prima facie evidence that the purchase money had been paid, the record of the original contract of sale was notice to all subsequent purchasers that a portion of the purchase money remained unpaid, and constituted an equitable lien upon the land.

Case . Bumstead and Others.

Held, also, that the stipulation in the contract, that B was to have possession on the execution of the deed, “free from rent or charge," was not a waiver or release of the vendor's lien.

APPEAL from the Pike Circuit Court.

ELLIOTT, C. J.-Complaint by Case, the appellant, against the appellees, to enforce a vendor's lien on real

estate.

The facts of the case, as alleged in the complaint, are substantially these: James Evans, being seized in fee of certain real estate, situate in Pike county, on the 3d of November, 1855, bargained and sold the same to N. R. & E. S. Alford, by an agreement in writing, signed by the parties, as follows:

"Article of agreement made and entered into the 3d day of November, 1855, between James Evans, of Pike county, Indiana, of the one part, and Nathan R. Alford and Elijah S. Alford, of the same place, of the other part, witnesseth: that the said James Evans has this day sold to the said Elijah S. Alford and Nathaniel Alford, the equal, undivided half of the following described tract of land, lying and being in said county of Pike," (describing it,) "containing one hundred and fourteen and one-half acres. The said Alfords agree to pay to said Evans, as consideration money therefor, one thousand dollars on or before the 1st day of April, 1856, and, upon making such payment, to execute to said Evans their two notes of hand, one payable on the 25th day of December, 1856, for one thousand dollars, and one for five hundred dollars, payable December 25th, 1857; said notes to bear interest from date. Now the said Evans, on his part, agrees, upon receipt of the first payment as aforesaid, and upon the execution of the notes aforesaid, to make and execute to the said Alfords a good and sufficient deed in fee simple for said tract of land, and also to give to them possession of the premises, including houses, free from rent or charge.

Case v. Bumstead and Others.

"In witness whereof, the parties have hereunto set their hands and seals the day and year first above written.

[Signed,]

"Attest: JOHN MCINTIRE."

On the 24th of March, 1856, the Alfords paid to Evans, on the contract, $1,000, and executed to him their two promissory notes, one for the sum of $1,000, payable on the 25th of December, 1856, and the other for the sum of $500, payable on the 25th of December 1857. They describe the land, and show that they were given in part consideration therefor. Evans, on the same day, executed and delivered to the Alfords a deed of conveyance in fee for the land, as required by the terms of the written contract.

On the 9th of April, 1856, Evans procured the execution of the written agreement to be proved before the recorder of Pike county, by McIntire, the subscribing witness, a certificate of which proof was duly indorsed on the agreement by the recorder, and the agreement and certificate were then recorded in the recorder's office of said county.

On the 25th of April, 1856, Evans sold, and transferred by indorsement in writing, both the promissory notes executed to him by the Alfords, to Case, the plaintiff.

N. R. & E. S. Alford, afterward laid off and platted the lands into town lots, named the town Alford, and had said plat duly acknowledged, and recorded in the recorder's office of the county of Pike. The defendant, Rhoda Bumstead, afterward became the purchaser, and is now the owner, of a large number of said lots, particularly described in the complaint.

The complaint also avers that the notes remain due and unpaid, and that N. R. & E. S. Alford long since failed in business and removed from this state, and that they, nor