Cope, J. concurring.

This suit is brought to recover of the defendant, who is Tax Collector, a sum of money for taxes illegally assessed and paid by the plaintiffs under protest.

From the assessment roll, it appears that the appellants were assessed and taxed “for moneys on hand and loaned.” As a distinct item they were assessed “upon mortgages (Marysville, etc.) $100,000.” The tax on this item was paid under protest, and the object of this suit is to recover it.

1. If the money was paid under protest, and was not justly due, it may be recovered back in an action of this sort. (Hayes v. Hogan, 5 Cal. 243 ; McMillan v. Richards, 9 Id. 417, and the cases cited in the appellants’ brief.)

2. In order to justify this assessment, as it stands, it must be maintained that mortgages are species of personal property of a known or ascertainable value, and as such liable to taxation.

The second section of the Act of 1857 (Statutes, 326) provides that all property, of every kind and nature whatever, within this State, shall *171 be subject" to taxation, except, etc. (mortgages not included). Section three provides that the Assessor, between the first Monday in March and the first Monday in August, in each year, shall ascertain by diligent inquiry the names of all persons, corporations, etc., owning property, etc. By section five a definition is given of the terms, real and personal estate. The last is defined to mean and include “ all household and kitchen furniture; all law, medical and miscellaneous librar ries; all goods, wares and merchandise; all chattels of every kind and description; all money on hand or on deposit, in bank or banks, or with individuals; all the money at interest, secured by mortgage or otherwise, gold dust, solvent debts, stocks of goods on hand, horses, mules, oxen, cows, calves, beef cattle, hogs, sheep, goats, jacks and jennets, and cattle of every description, wagons, carriages, buggies, omnibuses, stages, stage coaches, sulkies, carts, drays and all other vehicles, whether for use, pleasure or hire; all machines and machinery; all works and improvements; all storeships and hulks; all steamers, vessels and water craft of every kind and name, either owned in whole or in part by a resident or residents of the State, or navigating the waters of any river or bay within the State, and having a general depot or terminus within the State; all capital loaned, invested or employed in any trade, commerce or business whatsoever; the capital stock of all corporations, companies, associations, firms or individuals doing business or having an office in the State; the money, property and effects of every kind, except real estate, of all banks, banking institutions or firms, bankers, money lenders and brokers; all houses, buildings, fences, ditches, structures, erections, or other improvements built or erected upon any land, whether such land be private property or the property of the State, or of the United States, or of any municipal corporation or county in the State, and all other property of whatsoever kind or nature not included in the term real estate, as said term is defined in this act.”

In a certain loose sense, a mortgage may be regarded as personal property; but evidently it is not so regarded in this act. The mortgage is merely a security, and not necessarily a security for money. As the counsel well remark, a mortgage may be given to secure the rendition of services, or performance of acts, or to indemnify against possible contingencies. The land—if land was covered by these mortgages—may be taxed, and is, without reference to the mortgage on it; and if the mortgage was given to secure a debt, the debt may be taxed *172 or if given to secure a loan of money, then the money may he taxed. But certainly it was not intended to tax a mortgage, as such, and also to tax the money loaned for which it was given, or the solvent debt it represents. The assessment here does not show for what these mortgages were given, nor on what property, nor whether the debts were solvent, nor the value of the property on which the mortgages were taken. The respondent rests upon the sole fact that a mortgage was held or taken by appellants for a given amount, and, therefore, this mortgage became the subject of taxation as for that amount of money. We are unable to see any rule for this construction of the Revenue Act.

It is argued by the respondent, that the Revenue Act does not require the description of personal property to be given, but only its value; and that in this ease the list showed “personal property—mortgages (Marysville) $100,000,” etc. That this description would be enough if all reference to the mortgage were left out, and, therefore, this reference does not vitiate; that if this property were over-estimated, then the proper remedy was to apply to the Board of Equalization. But it is answered, that these mortgages were not personal property, subject as such to taxation, and therefore taking the whole statement together, it is shown that the tax was not proper, since that was taxed which was not the subject of taxation. Prima facie, a mortgage is no more taxable than a deed, or any other muniment of title or mere security. The money which it secures may be taxed; and this money cannot be taxed as personal property, without a more particular description than this general designation.

We do not understand the statute as the counsel suppose. By section five the Assessor is to ascertain by diligent search, etc., the name of all persons owning, claiming, etc., real estate, improvements or personal property, and the full cash value thereof. The same section provides “that he shall list and assess all such personal property” etc. He shall demand a statement under oath of all real estate, improvements or public lands, or personal property, etc. By section five, different classes of taxable property are given, as “money on hand or on deposit,” “ all moneys at interest secured by mortgage or otherwise,” “ solvent debts.” Obviously, if a lumping assessment were made of personal property, it would be very difficult to make or correct the valuation. It is true, it is not necessary that every item of taxable property should he listed, for that would be a useless as well as a very inconvenient. *173 requisition. But the different classes should be stated—as goods, money loaned, gold dust, solvent debts—the general designation, “personal property” is not enough, any more than the general.designation, real estate.

We think the assessment shows no legal demand on the plaintiff for the money collected from him.

Judgment reversed and cause remanded.