As a general rule taxes cannot be assessed and collected in this State except by authority of the legislature. Bull v. Gowing, 85 N.H. 483, 484, 160 A. 475, 476 (1932); Boston Maine R.R. v. Concord, 78 N.H. 192, 194, 98 A. 66, 68 (1916). RSA 72:6 (Property Taxes) provides that "[a]ll real estate, whether improved or unimproved, shall be taxed except as otherwise provided."
Undoubtedly a tax assessment has many of the characteristics of a judgment, and frequently it is regarded as one both in New Hampshire and elsewhere. But in Bull v. Gowing, 85 N.H. 483, 484, 160 A. 475, 476, it is remarked that not always "has there been a logical observance of the rule that a tax assessment is a judgment not subject to collateral attack", and even if this were not so, and in New Hampshire a tax assessment should be regarded as a judgment in every respect, still the assessment here would be a void judgment because it was rendered by a tribunal without jurisdiction. Thus under fully established principles it would always be vulnerable to attack.
As interpreted by this court, the word "machinery" in RSA 72:7 meant "certain instruments of production or machines which by their nature are designed for use in connection with real estate whether or not they are part of or attached to the realty." Kolodny, 96 N.H. at 339, 76 A.2d at 508; see Bull v. Gowing, 85 N.H. 483, 485, 160 A. 475, 476 (1932). While this interpretation of machinery was admittedly broad, we later adopted an interpretation that limited "machinery" to "factory machinery," consistent with administrative interpretations and legislative acceptance.
Under the well-established law in this state an agreed case is decided in this court on the record before it. If there is to be any amendment or change of the agreed facts permission must be obtained from the Trial Court so to do. State v. Corron, 73 N.H. 434, 461-462; Bill v. Gowing, 85 N.H. 483 486. We intimate no opinion favorable to the prosecution or to the defense on facts not before us but rule that on the record before us the motion to suppress should be granted. Cf. Wainwright v. New Orleans, 385 U.S. 1001.
Presently there is no evidence in the record establishing these issues in favor of the plaintiff. Defendant has a right to present testimony on these matters before they are determined. MacNeil v. Lathe, 102 N.H. 439, 443. Consequently we rule as a matter of law that it was error for the Trial Court to grant plaintiff's motion for judgment. Bull v. Gowing, 85 N.H. 483, 486; Phillips Exeter Academy v. Gleason, 103 N.H. 197, 201. Exception sustained.
" Also that because her title is derived through a tax collector's deed resulting from a tax sale of defendant's property, he and anyone claiming under him are by that very fact making "a claim adverse to [her] estate." This results from the necessity imposed upon her of establishing her title by evidence not shown in the recorded conveyances of due compliance with certain statutory provisions governing the sale of a delinquent taxpayer's real estate. RSA 498:3; Eastman v. Thayer, supra, 414; Glynn v. Maxfield, 75 N.H. 482; Bull v. Gowing, 85 N.H. 483; Rivard v. Ross, 99 N.H. 299, 302; see Nashua Hospital v. Gage, 85 N.H. 335 336. Plaintiff can therefore maintain her bill in equity against the defendants named therein and if adequate notice and an opportunity to be heard has been given to all interested parties "the court's decree thereon shall be conclusive." RSA 498:3; Faulkner v. Keene, 85 N.H. 147, 151; RSA 514:14; RSA 462:1; see 50 U.S.C.A. App., s. 520.
In these circumstances the defendant was justified in paying the tax. 36 Am. Jur., Mortgages, s. 347; Williams v. Hilton, 35 Me. 547, 554, 555; see Bull v. Gowing, 85 N.H. 483, 486. Furthermore, the great weight of authority and we believe the better reason holds that a mortgagee need not at its peril permit a tax legal on its face to go unpaid, or also at its peril and at its own expense contest its legality whenever the mortgagor chooses to question it. Farmers Security Bank v. Martin, 29 N.D. 269; Federal Land Bank v. Brooks, 139 Fla. 506; annos. 84 A.L.R. 1366, 1372; 123 A.L.R. 1248, 1253.
It is incumbent upon the city of Laconia to show legislative authority to tax these machines for under our laws taxes cannot be assessed except by authority of the Legislature. Boston Maine R. R. v. Concord, 78 N.H. 192, 194; Bull v. Gowing, 85 N.H. 483, 484; Const., Pt. I, Arts. 12, 28; Id., Pt. II, Arts. 5, 6. The city bases its authority to tax on the provisions of R. L., c. 73, s. 8, which reads as follows: "Buildings, mills, machinery, wharves, ferries, toll-bridges, locks and canals and aqueducts owned by private parties, any portion of the water of which is sold or rented for pay, are taxable as real estate."
Since the will is not part of the case, we cannot speculate on its effect. Whether justice requires amendment or reconsideration for that purpose will be determined by the Superior Court. Venus Corporation v. Hanover Store, 88 N.H. 478, 479; R.L., c. 398, s. 1; Bull v. Gowing, 85 N.H. 483, 486. Judgment for the appellant nisi.
The costs in such case will be adjusted by the trial court as justice requires. TROVER, for a steam shovel, being the same action reported in 85 N.H. 483. The plaintiff moved for a jury to assess the value of the shovel. The defendants Grau and Blanchard moved to be relieved from certain parts of the agreed facts.