Janike v. Butler County

CORNISH, J.

Plaintiff, objecting to the tax assessed against Ms land, paid the tax under protest, made his claim before the county board, and from the judgment of that body against him, afterwards. affirmed in the district court, appeals to this court.

The grounds of his written protest are: , (1) “The property upon which it (the tax) was levied was not liable to taxation;” (2) the land had been “twice assessed in the same year and taxes twice paid thereon; ” (3) there is a mortgage on the property in the sum of $3,000, to the Federal Land Bank of Omaha, which is “exempt from federal, state, municipal and local taxation.”

Conceding, argumentatively, that the Federal Land Bank’s mortgage is exempt from taxation, as against the *866 bank, and that under onr assessment laws a mortgage on real estate is declared to be an interest in real estate for purposes of assessment and taxation, to be assessed in the first instance to the mortgagee, the question arises whether the plaintiff, haying paid the tax under protest in accordance with section 6491, Rev. St. 1913, is entitled to, a judgment against the county for the amount of the taxes so paid. We think not. The tax protested against was a tax upon land owned by the plaintiff. The point urged is that the amount of the mortgage on the land was not assessed separately, and that its amount was not deducted from the valuation of the land, so that the plaintiff would only be called upon to pay the tax upon the surplus value over and above the amount of the mortgage.

The first subdivision of section 6491, upon which plaintiff bases his right to recover, provides for payment and recovery of taxes paid under protest only in cases where the property is “not liable to taxation,” or “has been twice assessed in the same year and taxes paid thereon.” In the instant case, the tax is on the land and is assessed to the owner. Certainly the land was “liable to taxation,” even though the mortgage interest, owned by another party, was not. The assessment does not, on its face, purport to assess the mortgage interest to the plaintiff. If, as a matter of fact, the taxing authorities have assessed the plaintiff’s property which is liable to taxation at too high a valuation, or even though the valuation is made too high by reason of the failure of the taxing authorities to make a deduction on account of the mortgage, in either ease, it would seem that the remedy by suit to recover a tax paid under protest would not be applicable. So long as the property assessed is liable to taxation, or is liable to taxation in part, plaintiff’s remedy is to go before the. board of equalization, where that portion constituting the overvaluation, how-ever it may occur, may be abated. Primarily, the plaintiff is not interested in, the taxation of another person’s *867 property, and whether it is exempt from taxation or not. It is only when the other person’s property, or interest in it, is assessed to him that he is .interested. Subdivisión 1 of section 6491, supra, in exempting property not “liable to taxation,” contemplates only property of the owner which is exempt. The mortgage interest in land, held by the Federal Land Bank, whether exempt or not as to the hank, is not within the class.

In subdivision 2, sec. 6437, Rev. St. 1913, it is provided that, where lands have been assessed as entities, and where after assessment (as here) a part of such entities has been transferred, it is the duty of the board of equalization to make the proper adjustment. Under this section, and where part of the tax in question is assessable to the complaining party, he should make his complaint to the board of equalization. Even though a part of the tax may be void for other reasons, the remedy in question is not available.

No contention is made in the instant case that the property was twice assessed.

For cases bearing upon the questions considered, see Darr v. Dawson County, 93 Neb. 93 ; Davis v. Otoe County, 55 Neb. 677, 681 ; Hicks v. Inhabitants of Westport, 130 Mass. 478 ; 37 Cyc. 1184.

For the ‘reasons above given, the judgment of the district court is

AFFIRMED.

Rose, J., not sitting.