Boise Title & Trust Co. v. Pfost , 32 Idaho 743 ( 1920 )

MORGAN, C. J.

Respondent, the purchaser of certain premises at mortgage foreclosure sale held pursuant to a decree of the district court, demanded a sheriff’s deed, which appellant, the sheriff, refused to execute and deliver unless there be paid to him the cost of revenue stamps to be affixed thereto in conformity, as he contended, with the requirements of sec. 800 and sec. 7, schedule A of the act of Congress of October 3, 1917, commonly called the War Revenue Act, 40 Stat. at L., 319 and 321.

The language of these sections, requiring that revenue stamps be affixed to certain documents, is broad enough to include the deed demanded by respondent, and the question presented by this appeal is as to the power of Congress to require that such stamps be affixed to a sheriff’s deed issued in obedience to the laws of Idaho and a decree of one of its courts.

The acts of a sheriff in selling property at mortgage foreclosure sale, and in executing and delivering a deed whereby it is conveyed to the purchaser, are performed in his official capacity and in the administration of justice by the state government. In such case neither the transfer of title nor the deed whereby it is accomplished is subject to taxation by the United States. (The Collector v. Day, 11 Wall. (U. S.) 113, 20 L. ed. 122, see, also, Rose’s U. S. Notes; Warren v. Paul, 22 Ind. 276; Stirneman v. Smith, 100 Fed. 600, 40 C. C. A. 581; Knox v. Rossi, 25 Nev. 96, 83 Am. St. 566, 57 Pac. 179, 48 L. R. A. 305; Fifield v. Close, 15 Mich. 505; Jones v. Keep, 19 Wis. 369; McNally v. Field, 119 Fed. 445.)

In the case,last, cited it is said: “It is familiar law that Congress has no power to tax the governmental instrumentalities of a state. It is the acknowledged right of a state to administer justice through its own courts, and to employ all necessary agencies for that purpose, unobstructed by the federal government. These subjects are therefore not within the taxing power of Congress. ”

The right to maintain this action has not been questioned; therefore we do not decide whether respondent has a plain, speedy and adequate remedy, by motion in the foreclosure case, nor what the effect of such a remedy is, if it exists.

The judgment is affirmed. Costs ' are awarded to respondent.

Rice and Budge, JJ., concur.