Hyland, Auditor, et al. v. The Brazil Black Coal Company.

erty would be if it were the property of private individuals or firms."

Sec. 39. "In all cases where the tangible property or the capital stock of any incorporated company is listed and assessed under this act, the shares of capital stock of such incorporated companies shall not be listed and assessed." Sections 6305, 6308, R. S. 1881.

It seems clear to us that the statute prohibits the assessment of the capital stock where the entire capital is invested in tangible property which is duly listed and returned for taxation. We are not here concerned with any question as to what the Legislature has power to do, for the question here is as to the meaning and effect of a statute. Nor are we concerned with any question as to the proper basis of assessment where the capital of the corporation is not invested in tangible property or where the capital stock has some value over and above that property, for in this instance the entire capital is invested in, and represented by, the property duly listed for taxation.

The authorities which declare that where part of a tax is due that part must be tendered, do not apply to this case, for here no tax whatever is due upon the capital stock. The plaintiff does not seek to defeat a part of an assessment, but it seeks to prevent the levy of an assessment upon property not subject to taxation. The statute does not, as we have seen, authorize the assessment of the capital stock, and, as there is no property subject to taxation, there can be no part of an assessment which the appellee is bound to pay. While we approve to the fullest extent the doctrine of such cases as City of Logansport v. Case, 124 Ind. 254, and Morrison v. Jacoby, 114 Ind. 84, we deny its applicability to a a case like this, where an attempt is made to assess property which is not subject to taxation. If the appellee were seeking to avoid part of the assessment levied upon its tangible property, the cases to which we have referred would be

Hyland, Auditor, et al. v. The Brazil Block Coal Company.

of controlling influence, but that is not what it is seeking to do.

There is no question before us as to what the rule would be in a case where the tangible property of a corporation is not fairly valued, for the complaint avers that it was fairly valued, and that the value placed upon it was accepted as correct by the board of equalization.

As it is made to appear by the allegations of the complaint that the capital stock did not exceed in value the tangible property returned for taxation, there is no question as to the effect of the finding of the board of equalization; for the question is whether the board can assess property which, by law, is not subject to taxation. If the property,that is, the capital stock,--had been subject to taxation, then the question as to whether the value placed upon it by the board is final and conclusive would be presented, but as the confessed allegations show that the capital stock was not subject to taxation the board had no authority over it, since it is clear that the board can not make property of any kind subject to assessment where there is no statute conferring that authority upon it.

The question whether an assessment may be levied upon capital stock to the extent to which it exceeds in value the tangible property is not presented by the complaint, nor is the question whether corporate franchises may be taxed where they have a value over and above the tangible property and the capital stock, presented for our decision. It is evident that no provision of the statute confers authority to tax the capital stock where the whole value of the stock is in the tangible property, and it is very doubtful whether it could be done under the Constitution. Section 21 of the act of March 29th, 1881, section 6290, R. S. 1881, simply provides at what place capital stock shall be assessed. Section 89, as we have seen, does not provide for the assessment of capital stock where the whole value of the stock is in the tangible property, and section 91 is merely auxiliary to section 89 of

Luzader v. Richmond et al.

the same act. Sections 6357-6359, R. S. 1881. While it may not be double taxation to tax capital stock to the extent that it exceeds in value the tangible property, it certainly can not be doubted that it can not be assessed where there is no statute authorizing its assessment.

We have been unable to find any copy of an entry or recital showing the filing of a bill of exceptions, so that we can not consider questions arising upon the motion denying a new trial.

Judgment affirmed.

COFFEY, J., did not take any part in the decision of this

case.

Filed Jan. 31, 1891; petition for a rehearing overruled May 22, 1891.

No. 15,121.

LUZADER v. RICHMOND ET AL.

SPECIFIC PERFORMANCE. Statute of Frauds. - Burden to Show Contract Taken Out of the Statute. The party who seeks to enforce a specific performance of a contract to convey real estate has the burden to show that such things had been done as took the contract out of the statute of frauds.

SAME.-Complaint.-Delivery of Deed to Third Person.-Conditions.-In a complaint for specific performance of a contract to convey land, where the plaintiff alleges a fall compliance with its terms on his part, and shows that the vendor delivered the deed to a third person to be delivered to the plaintiff pursuant to the contract, but fails to allege whether or not the delivery was conditional, it is insufficient on de

murrer.

From the Sullivan Circuit Court.

W. S. Maple, for appellant.

J. T. Hays and H. J. Hays, for appellees.

COFFEY, J.-This was an action by the appellant against

Luzader v. Richmond et al.

the appellees, in the Sullivan Circuit Court, to enforce the specific performance of a contract to convey real estate.

The court sustained a demurrer to the complaint, and the correctness of this ruling presents the only question for our consideration.

The complaint alleges that on the 10th day of March, 1889, the appellees were the owners in fee simple of the land in controversy; that on that day the appellant purchased the land from the appellees, at the agreed price of seven hundred dollars, five hundred dollars of which sum was to be paid in cash, and two hundred dollars in notes secured by appellee's lien upon the land; that on the 23d day of March, 1889, W. H. Snyder, a justice of the peace, notified the appellant that the appellees had executed to him a deed for said land in pursuance of said contract, and had left the same with said justice to be delivered to the appellant ; that in fact said deed was so left with Snyder to be delivered by him to the appellant pursuant to said contract and purchase; that the appellant at once executed his note for two hundred dollars, secured by mortgage on said land, and delivered them to the appellees, who accepted the same; that he tendered to appellees five hundred dollars in money; that after said notes and mortgage had been accepted, and said money tendered, the appellant demanded said deed from Snyder, in pursuance of said purchase, but said Snyder refused to deliver the same, and thereafter, without the knowledge or consent of the appellant, returned the deed to the appellees.

Prayer that appellees be required to deliver the deed to the appellant, and that they be required to comply with the terms of the contract.

It is contended by the appellant that the delivery of the deed to Snyder vested in him the title to the land therein described, and that by reason of such fact the case was taken out of the statute of frauds.

It is conceded by both parties to this controversy that un

Luzader v. Richmond et al.

less the delivery of the deed to Snyder vested the title in the appellant, the case is within the statute of frauds, and that the appellant can not succeed in this action. The case of Freeland v. Charnley, 80 Ind. 132, is relied on by both parties to this suit, and, as held in that case, the question is as to whether the deed was unconditionally delivered, so that it passed from the control of the appellees, or as to whether it was delivered as an escrow.

The contract between the parties is not very fully or minutely stated in the complaint, and we are left in some doubt as to its exact terms. It is assumed by the appellant in argument that the complaint alleges there was an agreement between the appellant and the appellees that the deed was to be left with Snyder for the use of the appellant, but no such direct allegation is found in the complaint. If such agreement was made, we are also left in ignorance as to whether such agreement was coupled with any conditions, or as to whether it was free from conditions, though it is assumed by the appellant, without allegations in the complaint, that the delivery of the deed to Snyder was unconditional.

If the deed was delivered to Snyder coupled with a condition, no title passed thereby until the condition had been performed and the deed delivered to the appellant.

In the case of Freeland v. Charnley, supra, it was said by this court: "A deed placed in the hands of a third person for the grantee is at once operative, provided, always, that the grantor intends it as a delivery and parts with all control. But, to constitute such an act a delivery, it must appear that the grantor placed it in the hands of the third person for the grantee, and that it was not accompanied by any condition. 4 Kent Com. 455; Stewart v. Weed, 11 Ind. 92."

As we have seen, it is not alleged in the complaint in this cause that the delivery of the deed to Snyder was not accompanied by a condition, while the law implies, under the contract set out in the complaint, that the delivery of the