Tawes v. Home Owners' Loan Corp.

Sloan, J., delivered the opinion of the Court. This appeal is from an order of the Circuit Court for Anne Arundel County sustaining a demurrer of the plain ⁴⁰³ tiff to the defendant’s answer to the plaintiff’s petition for a writ of mandamus which ordered the clerk to issue the writ as prayed. The plaintiff is the Home Owners’ Loan Corporation, a corporation of the United States; the defendant, J. Millard Tawes, Comptroller of the State of Maryland. The plaintiff filed its petition for a writ of mandamus to compel the defendant to refund certain recordation taxes and taxes on conveyances paid by the plaintiff to clerks of courts all over the State, which had in turn been paid by such clerks to the comptroller, amounting to $3,-034.80.

The plaintiff claimed that it was exempt from these taxes under the Home Owners’ Loan Act of Congress of 1933, 12 U. S. C. A., Sec. 1461 et seq. The petition stated that the amount of taxes which had been paid by the plaintiff on deeds and mortgages amounted to nearly $10,000, all paid under written protest, but necessary to be paid and stamps attached before the deeds and mortgages would be accepted for recordation. That on March 12, 1938, the plaintiff filed a petition in the Baltimore City Court against M. Luther Pittman, Clerk of the Superior Court of Baltimore, to compel him to record a certain mortgage to the plaintiff without payment of the tax of 10 cents for each $100, or fractional part thereof, of the principal debt, and the charge of 50 cents recordation tax for each instrument, as provided for by the Act of 1937 (Sp. S.), Ch. 11, Secs. 220, 221.

Code, 1939, Art. 81, Secs. 220, 221. From a decision favorable to the plaintiff, the defendant appealed to this court, and the order of the trial court affirmed. Pittman v. Home Owners’ Loan Corporation, 175 Md. 512 , 2 A. 2d 689 . An appeal was taken to the United States Supreme Court, and the decision of this court affirmed. 308 U. S. 21 , 60 S. Ct. 15 , 84 L. Ed. 11, 16 , 124 A. L. R. 1263.

All that was involved in that case was an original mortgage to the Home Owners’ Loan Corporation, from the payment of any tax on which it was held to be exempt. After that decision the Comptroller of Maryland refunded to the Home Owners’ Loan ⁴⁰⁴ Corporation the sum of $6,586.65, the aggregate of all taxes on the' principal of all mortgages and on the consideration of all deeds taken by it and the 50-cent recordation tax, on the advice of the attorney general, who advised him that the corporation was exempt from the payment of any tax , on deeds and mortgages to it, but that he should not refund the taxes on deeds from the corporation to private individuals or corporations. He accordingly retained the sum of $3,084.80 of all such taxes claimed by the corporation. Thereupon the corporation again filed a petition for the writ of mandamus to compel the comptroller to refund the money so retained by him.

The comptroller demurred and from an order overruling his demurrer, he answered; the corporation demurred to the answer, and from an order sustaining the demurrer, the defendant appeals. In the opinion of this court, the demurrer to the corporation’s petition should have been sustained. In its petition the corporation said it had loaned in the State $45,579,033, secured by 15,940 mortgages; and since the closing of its refinancing loans, it had acquired title to more than 3,000 separate parcels of real property, and in the resale it was necessary frequently to take purchase-money mortgages to secure the purchase money, and that when deeds to the purchasers were executed and mortgages taken from them, it was necessary for its protection to have the deed