Hunter v. Board of Supervisors

Miller, J.

It is urged by appellant that promissory notes are personal property; that, to render such property subject to assessment for taxation, it must have been within the State on the first day of January next preceding the annual assessment, and that the notes in this case never having been in the State were, therefore, not subject to taxation.

The statute, in section 711 of the Revision, specifies certain classes of property that are required to be omitted from the assessments. (See, also, ch. 31, Laws of 1842; ch. 79, Laws of 1844.) The next section (712) provides that all *378 other property, real and personal, within the State, is subject to taxation in the manner directed;” and it further provides that “ this section is intended to embrace,” with other species of property mentioned, “ money, property or labor due from sol/oent debtors on oont/raot or on judgment, mortgages, and other like securities,” etc.

Now, while it is true that promissory notes are personal property, it is not this property in the notes which is required to be assessed, but the “money, property or labor due” thereon. The money due on the notes is personal property, distinct from the property in the notes-The notes may be destroyed without impairing or destroying the debt. The notes are but the evidences of the debt, and as such are personal property. They are not, however, the debt, the thing the law requires to be assessed for taxation. While they are the best, they are not the only evidence of the debt. If the notes constituted the sole property or right, a destruction of the notes would be a destruction of the property, as in the ease of a horse or a wagon. But the notes may be destroyed and the right still subsist unimpaired. So, also, the right may be perfect without the existence of notes. It is the “ money, property or labor due on contract,” that constitutes the property the law requires to be assessed, and it makes no difference whether the contact be in writing or rests in parol. The “ credit,” or the debt due, is the property to be taxed and not the evidence thereof, although such evidence, if in writing, may be personal property. The property in the evidence of the debt is not taxable, and hence, whether the “credit” or “debt due” was or was not subject to taxation at the time cannot be determined alone by the situs of the evidence.

The debt due, of which the notes are the evidence, is property, vested in the owner wherever he may reside. This property in the right — the chose in action — isas absolute a property therein, and he is .as well entitled to it *379 as he is to tangible property in possession. And this species of property — debts due — must, in the nature of things, follow and be with the owner; except perhaps where he has conferred authority upon some one else as his agent to loan, manage, receive and collect the same for him. In such ease it might with reason be held that the situs of the property was at the domicile of the agent. Qui facit per aliwn facit per se.

In the case of The People ex rel. v. Gardner, 51 Barb. 352 , the court held that a resident of New York was not liable to be assessed there for capital invested in loans in other States upon securities, taken and held there by his agents. In Catlin v. Hull, 21 Vt. 152 , where notes were left by a resident of the State of New York in the State of Yermont in the hands of an agent for management, collection and im/oestment, it was held that the property was “ within the State” of Yermont in the sense of their statute. The same rule will hold in this State under section 725 of the Revision.

Ye may concede that moneys and credits under the control or management of an agent in another State, belonging to a resident in this State, with a view to be invested, loaned or used for pecuniary profit by such agent, would not be the subject of taxation in this State.

•But such are not the facts of this case. Appellant is and was, at the time the property was assessable, a resident of this State. The “ money due ” is evidenced by promissory notes which are kept in Illinois, merely for safe keeping ; not for investment there under the management of an agent or any one representing the owner. The right to the “ money due ” being in the appellant, the property in the right must, of necessity, be at the place where he resides, irrespective of the situs of the evidence. Where would the property have been in case the contract had been an oral one ? Would it be at the residence of the-owner or at that of the witness if they were different ? *380 Most surely at that of the former, and that the evidence in this case is in writing makes no difference, since it is not the evidence nor the property therein that is required to be assessed, but the property in the money due, of which the notes are only the evidence. The property 'in the money due on the notes is one thing, <md the thing required to ~be taxed, while the property in the notes as evidence of the money due, is quite another and different thing, and not taxable as such under the statute. The former was within the State and subject to taxation at the time it was assessed, although the latter — the notes —were in another State for safe keeping.

Affirmed.