San Gabriel Valley Land & Water Co. v. Witmer Bros.

— I dissent. The case turns altogether upon the meaning of section 4 of article XIII. of the constitution, which reads as follows: —

This section of the constitution not only defines the reciprocal rights and obligations of mortgagor and mortgagee with respect to the payment of the taxes assessed or assessable against their respective interests in the mortgaged premises, but was evidently intended to provide a simple and effective remedy for their enforcement. As security for the collection of the whole tax on both interests, the state reserves to itself a first lien *626 upon the land, — a lien superior to the mortgage lien. To secure the mortgagee for taxes paid on the mortgagor’s interest, the effect of these provisions is a virtual transfer to him of the claim and lien of the state by tacking it to the mortgage.

But the whole section being intended mainly for the benefit of the mortgagor, we find, as we should naturally expect to find, that especial pains have been taken to secure the enforcement of his right. His land being subjected to a lien in favor of the state, not only for the tax which it is his duty to pay, but also for the tax which it is the duty of the mortgagee…

— After ‘further consideration, we adhere to the opinion heretofore prepared by Commissioner Vanclief and adopted by the court at the former hearing, and for the reasons stated in that opinion, the judgment and order appealed from are affirmed.

McFarland, J., De Haven, J., Garoutte, J., Sharp-stein, J.

— I dissent, upon the reasons stated by me at the former decision of the case.