the time of the furnishing of the shall attach from the time of filing lumber before mentioned, the plain- the claim (§ 7), we have no right to tiff filed a notice of claim or mechan- declare judicially that it shall atic's lien in the clerk's office of the tach from the time the laborer becity and county of New York, and gins his work on the premises or thereafter commenced an action to the materials, or a man commences foreclose the same. All the above to furnish materials.

facts appeared in the complaint. Judgment reversed, and judgment The defendants demurred to the given for defendants sustaining complaint, on the ground that the their demurrer, with costs.

complaint did not show a sufficient Opinion by J. F. Daly, J. Daly, cause of action, Mr. Zeiss having Ch. J., and Larremore, J., condied before the lien was filed. Judg- curred.

ment was rendered for plaintiff, and defendants appealed.

John L. Brower, for plff.

Bell, Bartlett & Wilson and H. W. Hayden, for defts.

TAXATION. NATIONAL

BANKS.

U. S. SUPREME COURT.

The People ex rel. Chauncey P. Williams, plff. in error, v. William J. Weaver, et al., assessors. Oct. 1879. The provision of the national bank law that

state taxation on the shares of the bank shall not be at a greater rate than is assessed on other money capital in the hands of citizens of the state, has reference to the entire process of assessment, and includes the valuation of the shares as well as the ratio of the percentage charged on such valuation.

The statute of New York of 1866, which per

Held, That unless the fourth section of the act makes the lien relate back to the time of the commencement of the lienor's work, or the furnishing of his materials, or to any period prior to the actual filing of the notice, the lien will be cut off, if, at the time of filing the notice, the premises have vested in another by grant, or by operation of law, as in the case of the death of the contracting owner. Meyers v. Bennett, 7 Daly, 471. That the fourth section of the act contains no such provision. That the only exception to the general provision in § 7, as to when the lien shall attach, refers to the extent of the owner's right, title and interest, as affected by prior liens and incumbrances. Nothing in the fourth section justifies the conclusion that, when the owner has parted with all right, title and interest in the premises, a lien subsequently filed at- "Sec. 9. If any person shall at taches to anything. That there is any time before the assessors shall an express provision that the lien have completed their assessments,

mits a debtor to deduct the amount of the debts from the valuation of all his personal property, including moneyed capital, except his bank shares, taxes those shares at a greater rate than other moneyed capital, and is, therefore, void as to the shares of national banks.

Error to the Court of Appeals of the State of New York.

The law of the State of New York for taxation in the County of Albany, enacted in the year 1850, contained the following section:

held, to the whole amount of the capital stock of said bank or banking association. And provided further, that nothing herein contained shall be held or construed to exempt from taxation the real estate held or owned by any such bank or banking association; but the same

make affidavit that the value of his banking association, and in which real estate does not exceed a cer- any portion of their capital is intain sum, to be specified in such vested, in which said shares are affidavit, or that the value of the personal estate owned by him, after deducting his just debts, and his property invested in the stock of any corporation or association liable to be taxed therefor, does not exceed a certain sum to be specified in the affidavit, it shall be the duty of the board of assessors to value such shall be subject to state, county, real or personal estate, or both, as municipal and other taxation to the the case may be, at the sum speci- same extent and rate, and in the fied in such affidavit, and no more." same manner, as other real estate is In the year 1966 the legislature of taxed." that State enacted on this subject The defendants in error constianother law, the first section of tuted the board of assessors of the which reads as follows: City of Albany for the year 1875, "Section 1. No tax shall here- and assessed against the plaintiff after be assessed upon the capital for taxation the sum of $38,250 on of any bank or banking association account of shares owned by him in organized under the authority of the National Albany Exchange this state, or of the United States, Bank, organized under the general but the stockholders in such banks banking act of Congress. He apand banking associations shall be peared before this board in due assessed and taxed on the value of time and demanded the reduction of their shares of stock therein; and this sum to the amount of one dolshares shall be included in the val- lar, and accompanied the demand uation of the personal property of with this affidavit: such stockholder in the assessment of taxes at the place, town, or ward where such bank or banking associ- "I, Chauncey P. Williams, being ation is located, and not elsewhere, duly sworn, do depose and say, that whether the said stockholder reside the value of personal estate owned in said place, town, or ward, or not; by me, including my bank stock, but not at a greater rate than is asafter deducting my just debts and sessed upon other moneyed capital my property invested in the stock in the hands of individuals in this of corporations or associations liable state. And in making such assess- to be taxed therefor, and my investment there shall also be deducted ments in the obligations of the from the value of such shares such United States, does not exceed the sum as is in the same proportion to sum of one dollar. such value as is the assessed value of the real estate of the bank or

City and County of Albany, ss. :

"C. P. WILLIAMS.

Subscribed and sworn to before

me, this 28th day of September, swers the third question in the neg1875. ative.

Held, error. The question arises on the provision of the national shares of the banks, which is thus bank law concerning taxation of the Revised Statutes, in force at the expressed in section 5219 of the

"JAMES MAHER, Notary Public.' The defendants refused to make this deduction, and, under the procedure of the courts of New York, which allows of an amicable suit on an agreed statement of facts, the case finally came to the Court of Appeals of that state. Three ques- the shares in any association from "Nothing herein shall prevent all

tions were raised and decided in the

time of this assessment:

Supreme Court, and its judgment being included in the valuation of affirmed in the Court of Appeals. holder of such shares, in assessing personal property of the owner or They are thus stated in the record: "The case coming on for argument on the submission thereof, after hearing Mr. Hale, of counsel for relator, and Mr. Peckham, 'of counsel for defendant, the court decides:

"1st. That it is not the duty of the defendants, as assessors of the City of Albany, to comply with the demand made by the said relator and reduce his assessment to the sum of one dollar, and answer the first question submitted in the negative.

State within which the association taxes imposed by authority of the is located, ** subject only to the two restrictions, that taxation shall⚫ not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of

such State, and that the shares of any national banking association owned by non-residents of any State shall be taxed in the city or town where the bank is located, and not elsewhere."

It cannot be disputed-it is not disputed here nor is it denied in "2d. That under the law of the the opinion of the State court, that State of New York, referred to in the effect of the State law is to perthe second question, and passed mit a citizen of New York who has April 23, 1866, the defendants, as moneyed capital invested otherwise such assessors, were justified in re- than in banks, to deduct from that fusing to reduce the relator's assessment on his shares of bank stock, mentioned in said submission, to the sum of one dollar, and answers the second question in the affirmative.

"3d. That the said law of the State of New York, passed April 23, 1866, is not in violation of any law of the United States relating to the amount of taxes on shares of national banking associations, and an

capital the sum of all his debts, leaving the remainder alone subject to taxation, while he whose money is invested in shares of bank stocks can make no such deduction. Nor can it be denied that inasmuch as nearly all the banks in that State and in all others are national banks, that the owner of such shares who owes debts is subjected to a heavier tax on account of those shares than

the owner of moneyed capital other- values, of benefits, or the results of wise invested who also is in debt, business." "An assessment, strictly because the latter can diminish the speaking, is an official estimate of amount of his tax by the amount of the sums which are to constitute the his indebtedness, while the former basis of an apportionment of a tax cannot. That this works a discri- between the individual subjects of mination against the national bank taxation within the district. As shares as subjects of taxation, the word is more commonly emunfavorable to the owners of ployed, an assessment consists in such shares, is also free from the two processes of listing the perdoubt. The section to be con- sons, property, &c., to be taxed, and strued begins by declaring that of estimating the sums which are to these shares may be "included be the guide in an apportionment of in the valuation of the personal the tax between them. ** Taxaproperty of the owner, in assessing tion by valuation cannot be aptaxes imposed by authority of the portioned without it." Cooley on State within which the association Taxation, 258-9; Burroughs on is located." This valuation, then, is Taxation, page 198, section 94. So, part of the assessment of taxes. It also, Judge Bouvier defines assessis a necessary part of every assess- ment to be determining the value of ment of taxes which is governed by a man's property or occupation for a ratio or percentage. There can the purpose of levying a tax. Debe no rate or percentage without a termining the share of a tax to be paid valuation. This taxation, says the by each individual. Levying a tax. act, shall not be at a greater rate 1 Bouvier, 154. These definitions than is assessed on other moneyed show that, in the best use of the capital. What is it that shall not be language employed by Congress, we greater? The answer is taxation. are justified in looking to the rule of In what respect shall it not be valuation adopted by the State in greater than the rate assessed upon assessing taxes on these shares, as other capital? We see that Con- well as to the uniformity of pergress had in its mind an assessment, centage to ascertain whether the a rate of assesment, and a valuation, Congressional restriction has been and taking all these together, the violated. taxation on these shares was not to The People v. The Commissionbe greater than on other moneyed ers, 4 Wall., 244, distinguished. capital. We are, therefore, of opinion that "When taxes have been properly the statute of New York, as condecided upon, an assessment may strued by the Court of Appeals, in become an indispensible proceeding refusing to plaintiff the same deducin the establishment of any individu- tion for debts due by him, from the al charge against either person or valuation of his shares of national property. This is always requisite bank stock, that it allows to those when the taxes are to be levied in who have moneyed capital otherproportion to an estimate either of wise invested, is in conflict with the

act of Congress, and the judgment received the rents therefor. The of that court is reversed, and the interest of the mother in said lots case remanded for further proceed- has descended equally to plaintiff ings in conformity to this opinion. Opinion by Miller, J.

TRUSTEES. LIMITATION.

PRACTICE.

N. Y. COURT OF APPEALS. Reitz, applt, v. Reitz, respt. Decided April 6, 1880.

Defendant, who was his mother's agent, purchased land with money received by him as such agent, and took the title in his own name; but did not assume to own the land until after his mother's death. In an action to have the deed declared a resulting trust, Held, That no cause of action accrued until the death of the mother, or until she discovered that the deed has been taken in his

name; that the statute of Uses and Trusts could not be applied to the case, and that the claim was not barred by the Statute of Limitations.

On appeal from an order granting a new trial, which does not show that it was granted on a question of fact, the contrary will be pre

sumed.

and defendant. The referee found that defendant held title to the lots for the equal use of himself and defendant, and directed that defendant render an account of all moneys received by him as agent for his mother during her lifetime, and of all the rents which have come to his hands since her death. There was no finding by the referee that defendant took the deed in his own name without the knowledge or consent of his mother. And the defendant, therefore, claims that the case is within the statute of Uses and Trusts, and that the claim is barred by the Statute of Limitations. L. K. Church, for applt.

Homer A. Nelson, for respt.

name, he cannot profit by his omission to do so, or successfully invoke against her or those claiming under her, a statute designed to prevent, not encourage fraud. 29 N. Y., 610; 18 id., 448, 515.

Held, untenable; that the statute cannot be applied to the defendant's case; that he occupied towards his mother a fiduciary relation, and having taken the title in his own This action was brought to have name by mistake or fraud, and witha certain deed of premises in Brook-out knowledge of his principal, it lyn declared a resulting trust, on being his duty to take it in her the ground of the deed having been taken by defendant in his own name in fraud of his mother and plaintiff, his brother. It appeared that defendant acted for his mother for a long time as her agent, and as such was entrusted with her business and settling the estate of her husband; that defendant received money as his mother's agent, and purchased with the same certain lots, the title of which he took in his own name; that he afterwards, with the consent of his mother and plaintiff, erected upon said lots four buildings, and

Also held, that a finding of the referee to the effect that the title was taken in defendant's name without the knowledge or consent of his principal, may be inferred as involved in his general conclusion in favor of plaintiff. 22 N. Y., 323; 29 id., 598.

Defendant did not, until after his