(dissenting).
In my opinion the corporate appellees are not entitled to the refund of the franchise taxes paid under protest.
68 O.S.1971, § 1203, levies the franchise tax on the “capital used, invested or employed in the exercise of any power, privilege or right inuring to such an organization.”
The word “capital” as used in § 1203, shall be construed to include “bonds, notes, debentures or other evidences of indebtedness maturing and payable more than three (3) years after issuance.” 68 O.S.1971, § 1209(a)(1). .
Appellees purchased properties which were subject to outstanding mortgages. The conveyances to appellees were by warranty deed and the outstanding mortgages were excepted from the warranty. Appel-lees did not assume the mortgage indebtedness. Appellees contend that since they did not assume the mortgage indebtedness that they were not in any way personally obligated thereon and the mortgage indebtedness was not “evidences of indebtedness” within the purview of the above statutes.
Although appellees did not assume the mortgage indebtedness, such indebtedness remained mortgage liens against the assets of the corporation, i. e., the mortgaged property, because the mortgage liens were not released. Appellees’ grantor is under no obligation to appellee to pay the mortgage indebtedness. Therefore, unless ap-pellees pay, or cause to be paid, the mortgage indebtedness, the mortgagee or his as-signee may resort to the assets of appellees (the mortgaged property) to satisfy the mortgage indebtedness.
Had appellees assumed the mortgage and failed to satisfy the mortgage indebtedness, the mortgagor could resort to the mortgaged property to satisfy the indebtedness. If the mortgaged property was insufficient, the mortgagor could then resort to other assets of the appellees.
In my opinion, when a corporation purchases property which is subject to an outstanding mortgage lien, it is immaterial whether the corporation does or does not assume the mortgage for such mortgage to come within the purview of § 1203 and § 1209(a)(1), supra.
I am unable to construe the term “evidences of indebtedness” as employed in § *13021209(a)(1), supra, as being limited to evidences of indebtedness” against all the corporate' assets as distinguished from part of the corporate assets.
I am also of the view that the term “personal liability of a corporation”, when used in connection with purchase — mortgage transactions, means the extent the assets of the corporation are encumbered by outstanding mortgage liens. The properties in question are encumbered by mortgage liens. In the case at bar, appellees have the choice of two alternatives: They can pay the mortgage indebtedness as it becomes due out of their assets or refuse to pay the mortgage indebtedness and the mortgagee can resort to the assets of the corporation, (the mortgaged property) to satisfy the indebtedness.
In Hep Development Corporation v. Mouton (1971), La., 256 So.2d 744, the court considered a statute that provided that a franchise tax shall be paid on the amount of its capital, stock, surplus, profits and borrowed money. Capital was defined as “all indebtedness of the corporation * * * maturing more than one year from the date incurred.” The court said that “It appears that ‘borrowed capital’ under the pertinent statute is more or less synonymous with ‘long term indebtedness.’ ”
The factual situation in Hep was exactly like the factual situation here, i. e., Hep (a corporation) purchased property subject to an outstanding mortgage but did not assume the mortgage.
The Louisiana Court refused to follow Lenox Realty Company v. Hackett, 122 Conn. 143, 187 A. 895, 107 A.L.R. 1306, cited with approval in the majority opinion. In Hep the court recognized that since the corporation did not assume the mortgage it incurred no personal liability, but it held the corporation was liable for the franchise tax.
In my opinion, when a corporation purchases property which is subject to an outstanding mortgage, the outstanding mortgage constitutes “evidences of indebtedness” and capital used, invested or employed m the exercise of its corporate rights, within the purview of 68 O.S.1971, § 1203 and § 1209(a)(1), although the corporation does not assume the mortgage.
I respectfully dissent.
I am authorized to state that Vice Chief Justice WILLIAMS and Justice BARNES, concur in the views herein expressed.