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.

TAXATION. NATIONAL Bell, Bartlett & Wilson and H. IV.

BANKS. Hayden, for defts.

U.S. SUPREME COURT. Held, That unless the fourth section of the act makes the lien re

The People ex rel. Chauncey P. late back to the time of the com- Williams, plff. in error, v. William J. mencement of the lienor's work, or Weaver, et al., assessors. Oct. 1879. the furnishing of his materials, or The provision of the national bank law that to any period prior to the actual

state taxation on the shares of the bank shall filing of the notice, the lien will be not be at a greater rate than is assessed on cut off, if, at the time of filing the other money capital in the hands of citizens

of the state, has- reference to the entire pronotice, the premises have vested in

cess of assessment, and includes the valuation another by grant, or by operation of

of the shares as well as the ratio of the perlaw, as in the case of the death of

centage charged on such valuation. the contracting owner. Meyers v. The statute of New York of 1866, which perBennett, 7 Daly, 471. That the

mits a debtor to deduct the amount of the

debts from the valuation of all his personal fourth section of the act contains

property, including moneyed capital, except no such provision. That the only

his bank shares, taxes those shares at a greater exception to the general provision rate than other moneyed capital, and is, in $ 7, as to when the lien shall at- therefore, void as to the shares of national

banks. tach, refers to the extent of the owner's right, title and interest, as Error to the Court of Appeals of affected by prior liens and incum- the State of New York. brances. Nothing in the fourth sec- The law of the State of New York tion justifies the conclusion that, for taxation in the County of Al. when the owner has parted with all bany, enacted in the year 1850, conright, title and interest in the prem- tained the following section : ises, 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,

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 held, to the whole amount of the personal estate owned by him, after capital stock of said bank or bankdeducting his just debts, and his ing association. And provided furproperty invested in the stock of any ther, that nothing herein contained corporation or association liable to shall be held or construed to exbe taxed therefor, does not exceed a empt from taxation the real estate certain sum to be specified in the held or owned by any such bank or affidavit, it shall be the duty of the banking association; but the same 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

City and County of Albany, ss. : 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 as- after 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 &s is in the same proportion to sum of one dollar. such value as is the assessed value

“C. P. WILLIAMS. of the real estate of the bank or “ Subscribed and sworn to before

me, this 28th day of September, swers the third question in the nego 1875.

ative. “JAMES MAHER, Notary Public." Held, error. The question arises

on the provision of the national The defendants refused to make this deduction, and, under the pro- shares of the banks, which is thus

bank law concerning taxation of the cedure of the courts of New York,

expressed in section 5219 of the which allows of an amicable suit on

Revised Statutes, in force at the an agreed statement of facts, the

time of this assessment : 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

being included in the valuation of Supreme Court, and its judgment afirmed 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 argu- State within which the association

taxes imposed by authority of the ment on the submission thereof,

is located, * * subject only to the after hearing Mr. Hale, of counsel

two restrictions, that taxation shall for relator, and Mr. Peckham, of counsel for defendant, the court

not be at a greater rate than is as

sessed upon other moneyed capital decides :

in the hands of individual citizens of “ 1st. That it is not the duty of such State, and that the shares of the defendants, as assessors of the

any national banking association City of Albany, to comply with the owned by non-residents of any State demand made by the said relator shall be taxed in the city or town and reduce his assessment to the where the bank is located, and not sum of one dollar, and answer the

elsewhere." first question submitted in the neg

It cannot be disputed—it is not ative.

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 assess- capital the sum of all his debts, ment on his shares of bank stock, leaving the remainder alone subject mentioned in said submission, to the to taxation, while he whose money sum of one dollar, and answers the is invested in shares of bank stocks second question in the affirmative. can make no such deduction. Nor

“3d. That the said law of the can it be denied that inasmuch as State of New York, passed April 23, nearly all the banks in that State 1866, is not in violation of any law and in all others are national banks, of the United States relating to the that the owner of such shares who amount of taxes on shares of na- owes debts is subjected to a heavier tional banking associations, and an-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

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 valụation 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 à 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

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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.

and defendant. The referee found Opinion by Miller, J.

that defendant held title to the lots for the equal use of himself and de

fendant, and directed that defendTRUSTEES. LIMITATION.

ant render an account of all moneys PRACTICE.

received by him as agent for his N. Y. COURT OF APPEALS. mother during her lifetime, and of Reitz, applt, v. Reitz, respt.

all the rents which have come to his

hands since her death. There was Decided April 6, 1880.

no finding by the referee that deDefendant, who was his mother's agent, pur-fendant took the deed in his own chased land with money received by him as

name without the knowledge or consuch agent, and took the title in his own name; but did not assume to own the land sent of his mother. And the deuntil after his mother's death. In an action fendant, therefore, claims that the to have the deed declared a resulting trust, case is within the statute of Uses Held, That no cause of action accrued until and Trusts, and that the claim is the death of the mother, or until she discovered that the deed has been taken in his barred by the Statute of Limitations. name; that the statute of Uses and Trusts L. K. Church, for applt. could not be applied to the case, and that Homer A. Nelson, for respt. the claim was not barred by the Statute of

Held, untenable; that the statute Limitations. On appeal from an order granting a new trial, cannot be applied to the defendant's

which does not show that it was granted on case; that he occupied towards his a question of fact, the contrary will be pre- mother a fiduciary relation, and sumed.

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 name, he cannot profit by his omistaken by defendant in his own name sion to do so, or successfully invoke in fraud of his mother and plaintiff, against her or those claiming under his brother. It appeared that de- her, a statute designed to prevent, fendant acted for his mother for a pot encourage fraud. 29 N. Y., 610; long time as her agent, and as such 18 id., 448, 515. was entrusted with her business and Also held, that a finding of the refsettling the estate of her husband ; eree to the effect that the title was that defendant received money as taken in defendant's name without his mother's agent, and purchased the knowledge or consent of his with the same certain lots, the title principal, may be inferred as inof which he took in his own name; volved in his general conclusion in that he afterwards, with the consent favor of plaintiff. 22 N. Y., 323; of his mother and plaintiff, erected 29 id., 598. upon said lots four buildings, and Defendant did not, until after his

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