Chase, J.
Since the. former decision of this court herein
(People
v.
Trust Company of America,
205 N. Y. 74) the complaint has been amended by adding thereto the following paragraphs, viz.:
“That after July 1st, 1906, and on or about February 15th, 1901, the defendant herein, duly certified other bonds in addition to those theretofore issued as aforesaid, serially numbered from thirty-two hundred and one to thirty-six hundred, of the total aggregate of four hundred thousand ($400,000) dollars; and the defendant herein duly delivered such bonds so certified, to the mortgagor, the Union Bag and Paper Company, for issue.”
“That thereafter, and. on or about February 15th, 1901, the aforesaid bonds, numbered thirty-two hundred and one to thirty-six hundred, certified and delivered by defendant as aforesaid, were issued by said mortgagor, and on or about said date there was advanced on said bonds the sum of four hundred thousand ($100,000) dollars, under and pursuant to the terms of said mortgage; and such sum accrued upon the principal indebtedness of said mortgage and became secured thereby.”
By the addition of such paragraphs there are (as it was suggested by the chief judge in the opinion on the former appeal there would be in such case) different questions presented on this appeal than were before the court when the complaint was then considered.
The legislation commencing in 1905 relating to the taxation of mortgages shows a general intention to treat a trust mortgagee as a party to the trust instrument having an active duty to perform in behalf of the holders of bonds secured by the trust mortgage.
The sections of the Tax Law added by chapter 129 of the Laws of 1905 prescribing a property tax on mortgages were wholly remodelled by chapter 532 of the Laws of 1906, and a different scheme of mortgage taxation was provided to take effect July 1st of that year. The tax as provided by the act of 1906 is called a recording tax. The statute provides for the payment of a tax “of fifty cents for each one hundred dollars and each remaining major fraction thereof of principal debt or obligation which is, or under any contingency may be secured by mortgage of real property situated within the state recorded on or after ” July 1, 1906. The tax so imposed is payable ‘
‘
on the recording of each mortgage of real property subject to taxes thereunder, ” and it is further provided that such tax shall be paid “ to the recording officer of any county in which the real property or any part thereof is situated,” and it is made the duty of the recording officer to indorse upon each mortgage a receipt for
the amount of the tax so paid. The payment of such tax is made certain and secure by the fact that the mortgage can neither be recorded nor enforced unless the tax imposed by the statute is paid as therein provided.
A different provision is made in the act in case of trust mortgages (section 296). That section provides for the payment at the time of the recording of the mortgage of a tax upon the
amount advanced,
and it is also provided that “the tax for such sums of principal indebtedness as may be advanced, accrue or become secured after the execution and delivery of any such mortgage shall be payable at or before the time when such sums are advanced, accrue or become secured. Such additional tax shall be paid to the recording officer where such mortgage has been or is first recorded and a receipt therefor shall be indorsed upon the mortgage and payment therefor shall be noted in the margin of the record of such mortgage * *
The payment of such tax is made certain and secure by the necessity of obtaining a receipt therefor indorsed upon the mortgage and noted in the margin of the record thereof.
There is a further and independent imposition of a tax upon mortgages recorded prior to July 1st, 1906, when any part of the amount of principal indebtedness is advanced after July 1st, 1906. Such tax is imposed by section 301, which is as follows:
“ A tax is imposed hereby on each mortgage of real property recorded prior to the first day of July, nineteen hundred and six, when any part of the amount of principal indebtedness which is or under any contingency may be secured by any such mortgage is advanced, after first day of July, nineteen hundred and six-. The tax imposed by this section shall be at the rate of fifty cents for each one hundred dollars, and each remaining major fraction thereof which is, or under any contingency maybe secured by any mortgage taxed under this section, deducting
therefrom however any tax paid on such mortgage under chapter seven hundred and twenty-nine of the laws of nineteen hundred and five. The tax imposed by this section shall be paid to the recording officer of the county in which the mortgage is first recorded and shall be paid when at any time any part of the said amount of principal indebtedness is advanced after the first day of July, nineteen hundred and six.”
Whether it is termed a property tax or a tax upon the benefit derived from the previous record of the mortgage it is due and payable as therein specified.
Such a tax is not made payable by any named person or corporation, neither is its payment made certain or secure by any special provision of the statute. The legislature intended that the tax therein provided should be paid, and it may be inferred that it intended that the persons or corporations actively engaged in the transaction which results in the tax becoming payable be charged with its payment.
After July 1,1906, and on February 15, 1907, the defendant as trust mortgagee certified $400,000 of bonds and delivered them so certified to the mortgagor
for issue
and they were so issued on the same day. It is upon such $400,000 of bonds that the People seek to compel the defendant as the trust mortgagee to pay the tax. It was necessary that the bonds be so certified by the defendant before they could be issued. They were certified by the defendant with knowledge of the purpose for which they were certified and the defendant is presumed to have had knowledge of the statute relating to the tax on the mortgage held by it payable at the time of the advance to be made upon the bonds so certified.
It is provided in the trust mortgage that
“
after delivery of $3,000 of said bonds, further bonds shall be certified and delivered by the trustee only upon receipt of a certificate signed by the president or first vice-president and two-thirds of the directors of the mortgagor and that
the same or the proceeds thereof are needed for and will he applied in acquiring or constructing additional plant or property or making additional improvements or additions to the mortgaged property.” It will be assumed that such certificate was given to the defendant prior to its certification of the $400,000 of bonds on February 15, 1907. It, therefore, had knowledge by such certificate of the proposed further advance of the principal secured by the mortgage and such certificate also showed to the defendant that the money so to be advanced was then needed for and would be applied as-provided by the terms of the mortgage.
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Chase, J.
Since the. former decision of this court herein
(People
v.
Trust Company of America,
205 N. Y. 74) the complaint has been amended by adding thereto the following paragraphs, viz.:
“That after July 1st, 1906, and on or about February 15th, 1901, the defendant herein, duly certified other bonds in addition to those theretofore issued as aforesaid, serially numbered from thirty-two hundred and one to thirty-six hundred, of the total aggregate of four hundred thousand ($400,000) dollars; and the defendant herein duly delivered such bonds so certified, to the mortgagor, the Union Bag and Paper Company, for issue.”
“That thereafter, and. on or about February 15th, 1901, the aforesaid bonds, numbered thirty-two hundred and one to thirty-six hundred, certified and delivered by defendant as aforesaid, were issued by said mortgagor, and on or about said date there was advanced on said bonds the sum of four hundred thousand ($100,000) dollars, under and pursuant to the terms of said mortgage; and such sum accrued upon the principal indebtedness of said mortgage and became secured thereby.”
By the addition of such paragraphs there are (as it was suggested by the chief judge in the opinion on the former appeal there would be in such case) different questions presented on this appeal than were before the court when the complaint was then considered.
The legislation commencing in 1905 relating to the taxation of mortgages shows a general intention to treat a trust mortgagee as a party to the trust instrument having an active duty to perform in behalf of the holders of bonds secured by the trust mortgage.
The sections of the Tax Law added by chapter 129 of the Laws of 1905 prescribing a property tax on mortgages were wholly remodelled by chapter 532 of the Laws of 1906, and a different scheme of mortgage taxation was provided to take effect July 1st of that year. The tax as provided by the act of 1906 is called a recording tax. The statute provides for the payment of a tax “of fifty cents for each one hundred dollars and each remaining major fraction thereof of principal debt or obligation which is, or under any contingency may be secured by mortgage of real property situated within the state recorded on or after ” July 1, 1906. The tax so imposed is payable ‘
‘
on the recording of each mortgage of real property subject to taxes thereunder, ” and it is further provided that such tax shall be paid “ to the recording officer of any county in which the real property or any part thereof is situated,” and it is made the duty of the recording officer to indorse upon each mortgage a receipt for
the amount of the tax so paid. The payment of such tax is made certain and secure by the fact that the mortgage can neither be recorded nor enforced unless the tax imposed by the statute is paid as therein provided.
A different provision is made in the act in case of trust mortgages (section 296). That section provides for the payment at the time of the recording of the mortgage of a tax upon the
amount advanced,
and it is also provided that “the tax for such sums of principal indebtedness as may be advanced, accrue or become secured after the execution and delivery of any such mortgage shall be payable at or before the time when such sums are advanced, accrue or become secured. Such additional tax shall be paid to the recording officer where such mortgage has been or is first recorded and a receipt therefor shall be indorsed upon the mortgage and payment therefor shall be noted in the margin of the record of such mortgage * *
The payment of such tax is made certain and secure by the necessity of obtaining a receipt therefor indorsed upon the mortgage and noted in the margin of the record thereof.
There is a further and independent imposition of a tax upon mortgages recorded prior to July 1st, 1906, when any part of the amount of principal indebtedness is advanced after July 1st, 1906. Such tax is imposed by section 301, which is as follows:
“ A tax is imposed hereby on each mortgage of real property recorded prior to the first day of July, nineteen hundred and six, when any part of the amount of principal indebtedness which is or under any contingency may be secured by any such mortgage is advanced, after first day of July, nineteen hundred and six-. The tax imposed by this section shall be at the rate of fifty cents for each one hundred dollars, and each remaining major fraction thereof which is, or under any contingency maybe secured by any mortgage taxed under this section, deducting
therefrom however any tax paid on such mortgage under chapter seven hundred and twenty-nine of the laws of nineteen hundred and five. The tax imposed by this section shall be paid to the recording officer of the county in which the mortgage is first recorded and shall be paid when at any time any part of the said amount of principal indebtedness is advanced after the first day of July, nineteen hundred and six.”
Whether it is termed a property tax or a tax upon the benefit derived from the previous record of the mortgage it is due and payable as therein specified.
Such a tax is not made payable by any named person or corporation, neither is its payment made certain or secure by any special provision of the statute. The legislature intended that the tax therein provided should be paid, and it may be inferred that it intended that the persons or corporations actively engaged in the transaction which results in the tax becoming payable be charged with its payment.
After July 1,1906, and on February 15, 1907, the defendant as trust mortgagee certified $400,000 of bonds and delivered them so certified to the mortgagor
for issue
and they were so issued on the same day. It is upon such $400,000 of bonds that the People seek to compel the defendant as the trust mortgagee to pay the tax. It was necessary that the bonds be so certified by the defendant before they could be issued. They were certified by the defendant with knowledge of the purpose for which they were certified and the defendant is presumed to have had knowledge of the statute relating to the tax on the mortgage held by it payable at the time of the advance to be made upon the bonds so certified.
It is provided in the trust mortgage that
“
after delivery of $3,000 of said bonds, further bonds shall be certified and delivered by the trustee only upon receipt of a certificate signed by the president or first vice-president and two-thirds of the directors of the mortgagor and that
the same or the proceeds thereof are needed for and will he applied in acquiring or constructing additional plant or property or making additional improvements or additions to the mortgaged property.” It will be assumed that such certificate was given to the defendant prior to its certification of the $400,000 of bonds on February 15, 1907. It, therefore, had knowledge by such certificate of the proposed further advance of the principal secured by the mortgage and such certificate also showed to the defendant that the money so to be advanced was then needed for and would be applied as-provided by the terms of the mortgage.
The defendant as the trustee named in the mortgage is not only a party thereto but to some extent the representative of all parties interested in the instrument. It is particularly the representative of the- persons who own the bonds for which the trust instrument is collateral. As such trustee it has the legal title to the trust property to the extent of the lien thereon provided in the instrument. It cannot be said that there is no duty resting upon the trustee to record the mortgage or to see that it is recorded or to pay the tax on the mortgage required to be paid when a deferred part of the mortgage indebtedness is advanced as provided by the statute quoted.
Whatever may be the general-practice as to recording a trust mortgage or in paying the recording tax therefor, or the tax upon the mortgage upon an advancement of any part of the principal indebtedness secured by the mortgage, it is the trustee named as the mortgagee therein who represents the bondholders for whose benefit and security the mortgage is recorded. Any agreement relating to recording the mortgage as between the parties to the instrument affecting the responsibility of the trustee as between the parties to the instrument cannot affect the determination of the questions involved on this appeal. The defendant is not a gratuitous trustee. Its assumption of the duties
devolved upon it is of value. The assumption of the duties of trustee was pursuant to some contract express or implied, and the recording tax or any tax upon the mortgage by reason of the mortgage having been previously recorded is a proper disbursement by it as trustee.
,
Its duty to pay such recording tax or the tax upon the mortgage, as provided by the statute quoted, is imposed by the trust which it has accepted. It rests upon the benefit derived by those for whom the trust is created. When a statute imposes a tax on a transaction and no provision is made in the statute as to which party thereto shall pay it, the actors in the transaction, when acting in the performance of their duty, are liable therefor. The defendant was the principal actor in making possible the advancement after July 1, 1906. Its certification of the $400,000 of bonds was for the express purpose of enabling the mortgagor to secure the advance which was made to it that day.
This action by the sovereign authority should, therefore, be sustained. Section 301 of the statute should be construed to impose a tax to be paid to the recording officer of. the county in which the mortgage is first recorded at any and every time when an amount of the principal indebtedness is advanced after the first day of July, 1906, and upon the .amount so advanced from time to time at the rate prescribed by the-statute.
The judgment should be affirmed, with costs.