Summary
In Frank v. Frank, 120 Tenn. 569, 111 S.W. 1119 (1908), the Supreme Court held that the provision now codified at T.C.A. § 64-104 was enacted to change the common-law rule that the term "death without issue" meant an indefinite failure of issue.
Summary of this case from Shannon v. Union Planters Nat. BankOpinion
January 24, 1908.
Alexander Rosenthal, for the appellant.
Edward Snyder, for the respondents.
The judgment should have been for the defendant. The agreement was that the plaintiffs should take the title subject to a mortgage for $46,500 having at least one year to run. The plaintiffs refused to take the title for the reason that although the said mortgage was by its terms to run for one year, it contained a clause that (in sum and substance) if the laws for the taxation of mortgages should be changed, so as to increase such taxes, and the fee owner should neglect to pay the same, the mortgagee should have the option to make the mortgage due by a notice of thirty days to such owner; and the question whether this did not make the mortgage one having less than a year to run is the only one presented to us. Chapter 729 of the Laws of 1905 levied an annual tax on all mortgage debts on real property. As such tax could be increased at any time by the Legislature, mortgagees had the said option clause put in mortgages very generally, and the printed blanks containing it remained in use after the said law was repealed. Chapter 532 of the Laws of 1906 repealed it and prescribed instead a recording tax of one-half of one per cent on mortgages, and provided that no other tax should be levied on mortgages thus taxed except the succession tax (Tax Law, § 291). This new law took effect on July 1st, 1906. The contract in this case was made on May 21st, 1906, and it made the deed day July 31st, 1906. The said mortgage of $46,500 was recorded and the recording tax paid on July 12th, 1906. If this promise of the state not to put any other tax on such mortgages be not a contract between the parties to such mortgages and the state (which we do not need to decide) and therefore not to be impaired by future legislation, the improbable if not impossible contingency of the state violating its plighted faith at the very next session of the Legislature did not substantially detract from the terms of the mortgage that it was to run for one year. The case is similar to that of Blanck v. Sadlier ( 153 N.Y. 551). The case of Oppenheim v. McGovern ( 115 App. Div. 135) is not controlling. It arose under the said law of 1905, which taxed mortgage debts annually, and might well be changed at any time; whereas the law of 1906 repealed the law of 1905, and substituted a recording tax in lieu of all taxes on mortgages (except as aforesaid), and declared that no other tax should be levied on a mortgage on which such recording tax should be paid. Moreover, the mortgage in that case had three years to run.
The judgment should be reversed.
WOODWARD, JENKS, HOOKER and RICH, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the final award of costs.