Mr. Justice Mulkey
delivered the opinion of the Court:
This was a bill in chancery, filed by defendant in error on the 11th of April, 1868, in the Madison county circuit court, against the plaintiffs in error as collectors of taxes of the several counties in this-State through which the railway of defendant in error runs, to enjoin the collection of the taxes assessed on the capital stock of the Toledo, Wabash and Western Bailroad Company for the years 1873 and 1874.
It appeal’s from the bill and findings of the decree in this case, that the Toledo, Wabash and Western Bailroad Company, on the first day of January, 1873, being then the owner of what now constitutes the railway, rolling stock, franchise etc., of the Wabash Bailway Company, executed thereon a mortgage, or deed of trust, to the Hew York Guaranty and Indemnity Company, to secure an indebtedness of the railroad company amounting to five million of dollars, which mortgage, in a few days thereafter, was duly recorded in the several counties through which the road runs; that subsequently, in the years 1873 and 1874, this property was assessed as the property of the Toledo, Wabash and Western' Bailroad Company; that default having been made in the payment of the mortgage debt, legal proceedings were instituted in February, 1875, to foreclose the mortgage, and such proceedings were had that a decree was rendered directing the sale of the mortgaged property; that the property, in pursuance of the decree, was subsequently sold by a special master, and John W. Ellis, Alexander M. White and others became the purchasers; that the property was duly transferred and conveyed by deed to the purchasers, and the sale and transfer approved and confirmed by the court; that the said purchasers afterwards sold and conveyed the same to defendant in error, and that since that time the defendant in error has been the owner and in the possession and control of the same; that all taxes assessed upon the tangible property had been fully paid, but that the taxes assessed upon the capital stock for the years 1873 and 1874, as above stated, .were still unpaid, and that warrants for their collection were then in the hands of the collectors, which they were threatening to levy upon the property of defendant in error. Upon this state of facts, the court below perpetually enjoined the collection of the taxes in question.
The evidence upon which the decree was rendered has not been preserved. Uo bill of exceptions or certificate of evidence is to be found in the record. The propriety of the decree, therefore, must be determined exclusively from the allegations in the bill and the facts found by the court as they appear in the decree itself, as it must be presumed that the evidence was legally sufficient to support the findings of the court. Indeed, it is a general rule that a court of review, where nothing appears to the contrary, will indulge in all reasonable presumptions for the purpose of sustaining the decree of the lower court.
Upon an inspection of the decree, it will be readily seen that it specially finds to be true every material fact charged in the bill, and that, on the other hand, it contains no findings that, in our judgment, at all modify the legal effect of the facts thus found. It must, therefore, follow that if the facts charged in the bill, conceding them to be true, are sufficient to sustain the decree, the circuit court committed no error in rendering it.
It is conceded, in the argument, that before the assessment of the taxes in controversy, the Toledo, Wabash and Western Bailway Company executed the deed of trust or mortgage through which the defendant in error claims title, on the property now sought to be taken in satisfaction of the taxds; but it is claimed that the mortgage was neither acknowledged and recorded as a chattel mortgage, nor was possession taken of the mortgaged property until after the warrants for the collection of the taxes came into the hands of the collectors, and that, therefore, notwithstanding the mortgage, the property is liable for the taxes. But the answer to this is, that the decree specifically finds that the mortgage under which defendant in error claims was a valid lien on the property prior to the assessment and delivery of the warrants to the collectors, and if this finding of the court is true, and so we must consider it, the mortgage must have been properly acknowledged and recorded, or possession must have been taken under it, provided the statute in reference to chattel mortgages has any application to railroad mortgages, like the one in question, of which we at present express no opinion. By way of reply to tliis, it is said that the decree also shows that the mortgage expired on the 1st of January, 1875, and that the commencement of the suits of foreclosure and the appointment of a receiver did not occur until in the following month, and that by reason of the delay in taking possession of the mortgaged property, the lien under the mortgage Avas lost, and the tax lien thereupon attached. The trouble with this position is that it assumes that possession was not taken of the mortgaged property until after the warrants came to the collectors’ hands, a fact which does not appear by the decree. If any of the findings of the decree were necessarily incompatible Avith the fact that the mortgage was a valid lien on the property before the warrants came to the hands of the collectors, the argument Avould have much force in it, but they are not. For aught that appears from the record, the mortgagee may have taken possession of the property at the time of the execution of the mortgage, and continued in possession till superseded by the receiver. There is no proof on this subject one way or the other, and all presumptions must be indulged in favor of the findings of the court.
Even the mortgage is not before us, to enable us to determine what, if any, provisions it contained on that subject. It is true, we find in the transcript what purports to be a copy of such a mortgage, and also what purports to be an agreement between the parties to this suit, that such copy might be used in evidence with like effect as if the original, but neither the agreement nor the supposed copy is in any manner verified except by simply being copied into the transcript by the clerk. That, as .has often been held, is not sufficient, and does not make them a part of the record. The law has prescribed the manner in which this may be done when desired, but there has been no compliance with it in this instance, even if there was any intention of doing so. It is well settled that even exhibits to bills and answers, when sought to be used as evidence, when not of such character as the court will take judicial notice of their genuineness, must, like any other instruments of evidence, be satisfactorily identified and proven. But even if we were permitted to consider these instruments, there is nothing in the record to show the supposed copy was used in evidence, for the stipulation, assuming it to be one, does not make it evidence in the cause, but only authorizes it to be done if desired.
But it is further suggested, that the decree, in so far as it finds the mortgage to be a prior valid lien on the property, is not based on any allegation in the bill to that effect, and for that reason it must be regarded as both erroneous and inoperative.
It is conceded that the findings of a decree with reference to a matter about which there is no allegation whatever, can not be sustained.
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Mr. Justice Mulkey
delivered the opinion of the Court:
This was a bill in chancery, filed by defendant in error on the 11th of April, 1868, in the Madison county circuit court, against the plaintiffs in error as collectors of taxes of the several counties in this-State through which the railway of defendant in error runs, to enjoin the collection of the taxes assessed on the capital stock of the Toledo, Wabash and Western Bailroad Company for the years 1873 and 1874.
It appeal’s from the bill and findings of the decree in this case, that the Toledo, Wabash and Western Bailroad Company, on the first day of January, 1873, being then the owner of what now constitutes the railway, rolling stock, franchise etc., of the Wabash Bailway Company, executed thereon a mortgage, or deed of trust, to the Hew York Guaranty and Indemnity Company, to secure an indebtedness of the railroad company amounting to five million of dollars, which mortgage, in a few days thereafter, was duly recorded in the several counties through which the road runs; that subsequently, in the years 1873 and 1874, this property was assessed as the property of the Toledo, Wabash and Western' Bailroad Company; that default having been made in the payment of the mortgage debt, legal proceedings were instituted in February, 1875, to foreclose the mortgage, and such proceedings were had that a decree was rendered directing the sale of the mortgaged property; that the property, in pursuance of the decree, was subsequently sold by a special master, and John W. Ellis, Alexander M. White and others became the purchasers; that the property was duly transferred and conveyed by deed to the purchasers, and the sale and transfer approved and confirmed by the court; that the said purchasers afterwards sold and conveyed the same to defendant in error, and that since that time the defendant in error has been the owner and in the possession and control of the same; that all taxes assessed upon the tangible property had been fully paid, but that the taxes assessed upon the capital stock for the years 1873 and 1874, as above stated, .were still unpaid, and that warrants for their collection were then in the hands of the collectors, which they were threatening to levy upon the property of defendant in error. Upon this state of facts, the court below perpetually enjoined the collection of the taxes in question.
The evidence upon which the decree was rendered has not been preserved. Uo bill of exceptions or certificate of evidence is to be found in the record. The propriety of the decree, therefore, must be determined exclusively from the allegations in the bill and the facts found by the court as they appear in the decree itself, as it must be presumed that the evidence was legally sufficient to support the findings of the court. Indeed, it is a general rule that a court of review, where nothing appears to the contrary, will indulge in all reasonable presumptions for the purpose of sustaining the decree of the lower court.
Upon an inspection of the decree, it will be readily seen that it specially finds to be true every material fact charged in the bill, and that, on the other hand, it contains no findings that, in our judgment, at all modify the legal effect of the facts thus found. It must, therefore, follow that if the facts charged in the bill, conceding them to be true, are sufficient to sustain the decree, the circuit court committed no error in rendering it.
It is conceded, in the argument, that before the assessment of the taxes in controversy, the Toledo, Wabash and Western Bailway Company executed the deed of trust or mortgage through which the defendant in error claims title, on the property now sought to be taken in satisfaction of the taxds; but it is claimed that the mortgage was neither acknowledged and recorded as a chattel mortgage, nor was possession taken of the mortgaged property until after the warrants for the collection of the taxes came into the hands of the collectors, and that, therefore, notwithstanding the mortgage, the property is liable for the taxes. But the answer to this is, that the decree specifically finds that the mortgage under which defendant in error claims was a valid lien on the property prior to the assessment and delivery of the warrants to the collectors, and if this finding of the court is true, and so we must consider it, the mortgage must have been properly acknowledged and recorded, or possession must have been taken under it, provided the statute in reference to chattel mortgages has any application to railroad mortgages, like the one in question, of which we at present express no opinion. By way of reply to tliis, it is said that the decree also shows that the mortgage expired on the 1st of January, 1875, and that the commencement of the suits of foreclosure and the appointment of a receiver did not occur until in the following month, and that by reason of the delay in taking possession of the mortgaged property, the lien under the mortgage Avas lost, and the tax lien thereupon attached. The trouble with this position is that it assumes that possession was not taken of the mortgaged property until after the warrants came to the collectors’ hands, a fact which does not appear by the decree. If any of the findings of the decree were necessarily incompatible Avith the fact that the mortgage was a valid lien on the property before the warrants came to the hands of the collectors, the argument Avould have much force in it, but they are not. For aught that appears from the record, the mortgagee may have taken possession of the property at the time of the execution of the mortgage, and continued in possession till superseded by the receiver. There is no proof on this subject one way or the other, and all presumptions must be indulged in favor of the findings of the court.
Even the mortgage is not before us, to enable us to determine what, if any, provisions it contained on that subject. It is true, we find in the transcript what purports to be a copy of such a mortgage, and also what purports to be an agreement between the parties to this suit, that such copy might be used in evidence with like effect as if the original, but neither the agreement nor the supposed copy is in any manner verified except by simply being copied into the transcript by the clerk. That, as .has often been held, is not sufficient, and does not make them a part of the record. The law has prescribed the manner in which this may be done when desired, but there has been no compliance with it in this instance, even if there was any intention of doing so. It is well settled that even exhibits to bills and answers, when sought to be used as evidence, when not of such character as the court will take judicial notice of their genuineness, must, like any other instruments of evidence, be satisfactorily identified and proven. But even if we were permitted to consider these instruments, there is nothing in the record to show the supposed copy was used in evidence, for the stipulation, assuming it to be one, does not make it evidence in the cause, but only authorizes it to be done if desired.
But it is further suggested, that the decree, in so far as it finds the mortgage to be a prior valid lien on the property, is not based on any allegation in the bill to that effect, and for that reason it must be regarded as both erroneous and inoperative.
It is conceded that the findings of a decree with reference to a matter about which there is no allegation whatever, can not be sustained. But this principle has no application to' cases where the facts found by the decree have been merely defectively stated in the bill. There is no question as to the fact that the bill in the present case distinctly avers the making of the mortgage, and as every valid mortgage of necessity implies a lien, we are of opinion that this averment, in the absence of objections to its sufficiency, fully warranted the court, if the facts justified it, as we must presume they did, in finding the mortgage was a valid lien as stated in the decree.
It is finally objected, that the finding of the decree, in this respect, is a mere conclusion of law, and for that reason, also, it is erroneous and inoperative.
We do not regard this position tenable either. 'It is the constant and universal usage for courts of equity to investigate and determine, as matters of fact, questions of this character. They are known to the law as mixed questions of law and fact, and when they arise in a court of law, if required, they have to be submitted to a jury, though not precisely in the form the present question is presented.
Whether a lien is created by an instrument purporting to be a mortgage must, of necessity, depend, in every case, upon a variety of circumstances. Every condition essential to the validity of a contract, in addition to the requirements of the statute, if, as before stated, it has any application to mortgages of this kind, is involved in such an inquiry.
If, for illustration, the instrument has been obtained by fraud, proof of such fact, when set up by way of defence, will defeat the lien; and so of various other defences that might be suggested. In the case supposed, assuming the mortgage to be regular on its face, the existence or non-existence of the lien would depend, solely, upon the fact whether it had been obtained by fraud or not.
Of course, where no question is made with reference to a mortgage, except what appears on its face, the court will then say, as matter of law, whether the instrument is valid as a -"mortgage, or not; or, in other words, whether or not it creates a valid lien. Yet that is but an illustration of the general principle, that where the facts are conceded or definitely ascertained, the court will then determine, as matter of law, the conclusions to be deduced from them.
Whether an instrument is operative as a mortgage, or, in other words, creates a lien upon the property, is no more a mere conclusion of law, than whether a given instrument is the last will and testament of an alleged testator, or whether one claiming as heir or executor, is entitled to a particular estate. All issues of this kind present, for the determination of the court, mixed questions of law and fact. We are clearly of the opinion there is nothing in this objection.
For the purposes of taxation, so far as this controversy is concerned, we agree with plaintiff in error, there is no difference between the tangible and intangible property, and the rights of the parties to it must be determined just as though no such distinction existed.
We regard the situation of the parties precisely as if the taxes in question had been assessed upon the tangible property instead of the capital stock. If the property of the present company could be held for the taxes in the one case, it can in the other. And whether it can be held in either depends upon whether the law, by reason of the assessment of personal property, gives a specific lien upon it for the taxes, that follows it into whosesoever hands it may happen to come, until they are paid; and this really is the most important question involved in the case.
In support of the affirmative of this proposition, counsel for plaintiff in error have cited a number of cases, but, in our judgment, none of them sustain it. Most of them are cases in which the tax sought to be enforced was assessed upon real property, which is governed by principles essentially different from those which are applicable to assessments on personal property.
Under our system of taxation, and that of other States, so far as we are advised, the tax on each tract of land is kept separate and distinct from the tax on every other tract, and such tax not only becomes a debt against the owner, which may be recovered in a personal action, as in other cases, but a charge upon that particular tract of land, and no other, and upon the payment of such tax the owner may sell and convey the same, free from all charges on account of taxes assessed against other tracts. But, in default of such payment, the law authorizes, in addition to the remedy given against the owner personally, a direct proceeding against the land itself, by which judgment may be had against it, just as though it were a person, and it may finally be sold under such judgment. Inasmuch, therefore, as the land, as well as the owner, is primarily liable for the tax, whoever purchases it or otherwise succeeds to the title, must necessarily take it subject to the charge until the tax is paid. If any such specific charge is created upon a personal chattel by reason of its assessment, it is clear the law has provided no means by which the public may know, as in the case of real property, .the extent of such charge. Indeed, the very observance of the law prescribing the manner of keeping tax-books renders it absolutely impossible to even learn its extent.
So it would follow, if one, any time after assessment, though months before the taxes were due, should buy a horse, cow, or other article of property, and the party to whom it was assessed should happen, in the meantime to fail, the only way the purchaser could obtain a clear title to the property would be to pay all the personal taxes of the insolvent tax-debtor, and this, in some cases, might be equivalent to a loss of the property altogether. If such were the law, no man could know when he was safe in buying property, for the effect of it would be to create an almost infinite number of secret liens—which the law ever abhors—against which no prudence, care or foresight could protect one. Nothing but a clear, unequivocal declaration of the law-making power would satisfy us that the legislature ever intended to sanction such a state of things.
If it had been the intention of the legislature to create a specific charge upon every article of personal property, to the extent of the tax assessed on its valuation, as it has on each tract of land, some provision certainly would have been made by which the extent of the charge could be definitely ascertained, so as to prevent great hardships and frauds upon innocent purchasers. And since this has not been done, in the absence of any express provision to that effect, we must hold that it was not the intention of the legislature to create any such charge.
We do not deem it necessary to review the various provisions of the statute that may be supposed to have some bearing on the question. To do so would lead to unwarrantable prolixity. Suffice it to say, we have carefully examined the entire Bevenue act, and do not find in it a single section, clause or sentence that seems in the slightest degree to favor the view suggested, but, on the contrary, many of its provisions clearly lead to the very opposite conclusion. The whole revenue system is purely statutory, and it is well settled that all tax liens exist only by reason of positive statutory enactments.
What we have here said with reference to the inconveniences and hardships growing out of secret liens, is directed against the hypothesis that such liens, under our revenue system, have any existence until after the tax books come into the hands of the collector. Of course these same inconveniences exist to a limited extent after that time, but they are not to be extended by judicial construction.
While the right to raise revenue by taxation is necessarily inherent in every government, yet, in all constitutional governments, like ours, this right is regulated by law, and can only be exercised in the manner and for the purposes specified in the constitution and the statutes of the State.
This question is not left in doubt by our legislature. It has spokeii in terms that leave no just ground for misapprehension. Section 253, of the Bevised Statutes of 1874, provides as follows: “The taxes assessed upon real property shall be a lien thereon, from and including the first day of May in the year in which they are levied, until the same are paid.”
The next section, 254, is in these words: “The taxes assessed upon personal property shall be a lien upon the personal property of the person assessed from and after the tax books are received by the collector.”
By virtue of one or the other of these provisions every tax lieu exists. The statute having in both cases fixed a definite time when the lien shall commence, is equivalent to saying it shall not commence before that time. The lien given for the personal tax has no reference to the property originally assessed, but it is a lien that attaches to all the personal property of the tax-debtor, without regard to whether it was previously assessed or not. The very wording of the section directly negatives the idea that the lien has-any special reference to the previously assessed property, or that it creates any lien at all upon such property, unless it belongs to the tax-debtor at the time the tax books come to the hands of the collector. Had the legislature intended anything of that kind it would have provided that the taxes should be a lien upon the property assessed, and not, as it has, upon the property of the person assessed. When the tax books come to the collector’s hands, the personal taxes at once, and not before, just like an execution, become a lien upon all the personal property which the person assessed then owns, without regard to what he may have owned when the assessment was made. This is the plain provision of the statute, and the construction now given it is in strict conformity with the previous decisions of this court.
It is further objected that the decree in this case is void as to one of the defendants, and being a joint decree it must be reversed as to all. It is admitted that counsel for plaintiff in error state the law correctly on this subject, and the only question is whether the case is brought within the principle.
The bill, after setting out the interest of the defendant in error in the property sought to be charged with the taxes, proceeds to charge that the collectors of the several counties through which the road runs, including that of Scott county, had in their hands certain tax warrants which they were about to levy upon the property in question. The bill then charges that certain persons, naming them, are respectively collectors of these counties, among whom one John H. Coats is mentioned as collector of Scott county, and a summons was issued against him as such.
B. A. Blair, the then sheriff and collector of Scott county, returned this summons with an indorsement thereon, to the effect that the same was not served, for the reason there was not then and never had been, any one in his county answering the description of “John H. Coats, collector of Scott county.”
Subsequent to this return, and without any further steps being taken to bring Coats into court, an amendment was filed to the bill, in the entitling of which the name of Bobert A. Blair, the real collector, was substituted for that of Coats, and the latter’s name does not further appear in the proceedings. After the substitution of Blair’s name for Coats, Blair, as collector of Scott county, filed an answer to the amended bill, and the cause proceeded to decree without any question being made as to the regularity of the proceeding.
Under this state of facts we do not understand any decree was entered against Coats. The objection urged, therefore, has no foundation in fact. But even if this were not so, we do not regard the objection well taken for other reasons. It clearly appears from the record that the suit was originally instituted against Coats under a mistake of fact. The suit was brought against him in a supposed official character,, which the return of the officer and the amended bill shows he did not sustain. There was really no one in esse answering the description of John H. Coats, collector of Scott county, and it therefore follows, whether the decree was or was not rendered against him, can not in the slightest manner prejudice the parties here complaining. The record shows conclusively that if there be such an individual as John H. Coats, he can not, as a mere private individual, have the slightest interest in the suit that could in any manner affect the rights of plaintiffs in error, and such being the fact it is clear they have no right to complain on the ground suggested.
Perceiving no error in the record, the decree of the circuit court is affirmed.
Decree affirmed.