CONCURRING OPINION. I concur in the reversal of the judgment of the trial court. I disagree with the majority opinion *Page 139 as to the method of listing the property here involved for taxation.
On January 4, 1923, the Willard Library Association entered into a contract with appellee wherein it is recited, "That said party of the first part has this day sold and does hereby agree to convey to said party of the second part, and said party of the second part has this day purchased from said party of the first part, upon terms and conditions herein set forth, the following described real estate in the County of Vanderburgh, State of Indiana, to wit:" (Describing the lot). Conditions stated in the form of stipulations: The purchaser to pay $20,000; $2,000 in cash upon the execution of the contract and the balance he agrees to pay in installments of $1,000 each, payable on each following first day of January, with interest at 5% on unpaid installments, without relief from valuation or appraisement laws; to pay all taxes, assessments, etc. against the real estate; to keep the same in good repair and insured against fire and tornado, with a loss clause payable to the parties as their interest may appear; the purchaser to have possession of the real estate, but on default of any of the foregoing stipulations by him to be performed, the seller reserves the right to exercise either one of two remedies: (1) To declare the balance of the principal sum then remaining unpaid, together with interest thereon, due and payable, and to foreclose the equity of the purchaser in any court of competent jurisdiction, or, (2) to terminate the purchaser's right to possession, but in case the purchaser complies with all and each of the stipulations by him to be performed, then the seller shall, by a good and sufficient general warranty deed, convey to the purchaser the fee simple title to the real estate clear of all liens and encumbrances. The record here discloses a stipulation between the parties to this case that the real estate was *Page 140 exempt from taxation in the hands of the Willard Library at the time it contracted to sell it to appellee.
The majority opinion, as I read it, proceeds upon the theory of an executed contract. Bouvier defines executed contracts as "those in which nothing remains to be done by either party, and where the transaction has been completed, or was completed at the time the contract or agreement was made: as, where an article is sold and delivered and payment therefor is made on the spot." "Executory contracts are those in which some act remains to be done." Bouvier's Law Dict. (Rawles, 3rd Rev.) p. 660. Executed contract — "A contract whose object has been performed." Executory contract — "One in which a party binds himself to do or not to do a particular thing." Anderson's Law Dict., p. 248. If the foregoing definitions are correct, then, in my opinion, the contract here under consideration should be regarded as executory, for, by its terms, the fee in the real estate is to remain in the seller and only to pass at a future time on certain conditions inconsistent with its immediate transfer.
The majority opinion for support relies on the case of Martin v. Wise (1915), 183 Ind. 530, 109 N.E. 745. The facts in that case and the question for decision, and the facts in the case at bar and question for decision clearly distinguish the cases, for, in the Martin case (1) the seller executed a deed concurrently with the execution of the contract and delivered it to a third person in escrow for second delivery on purchasers' compliance with certain specific conditions, the performance of which gave the deed vitality; (2) the seller parted with his title to the land; (3) the seller held the promissory notes of the purchaser for the unpaid part of the purchase price; (4) the suit was to enjoin the county treasurer from enforcing the collection of the tax assessed against the notes; (5) the subject of the contract *Page 141 was not exempt from taxation at the time the contract was made; (6) the payment of taxes on the real estate was not questioned. In the instant case, (1) the seller agreed to transfer the fee or legal title to the real estate only when the purchaser shall have completely performed his part of the contract; (2) the seller retained the fee; (3) the unpaid purchase money was not evidenced by promissory notes; (4) this action was to recover alleged illegal taxes paid under protest; (5) at the time the contract was executed the subject thereof was exempt from taxation; (6) the payment of taxes on real property is the question here for decision.
In the listing and assessing of real property, § 148 of our 1919 Tax Law (§ 14187, Burns 1926, § 64-1015, Burns 1933, § 15681, Baldwin's 1934) requires the assessor to list and assess the land or lot and the improvements thereon separately, and, nothing to the contrary appearing, we must presume that the officers followed the law in that respect. Since the lot and improvements thereon covered by the contract were assessed separately and all exempt from taxation in the hands of the holder of the fee, it seems to me the rule to be applied under such circumstances was fixed by the general assembly when it adopted § 21 (§ 14061, Burns 1926, § 64-503, Burns 1933, § 15538, Baldwin's 1934) quoted in the majority opinion. This statute fixes the standard by which a certain class of property shall be assessed and taxed. It violates no constitutional provision, either Federal or State, and unless it does, it is not for the courts to say that the mandate of the lawmaking body shall not prevail as written.
The mandate should be: Judgment of the trial court reversed with instructions to grant appellant's motion for a new trial. *Page 142