—1. Although the interest in the land represented by the mortgage was assessed as of the first Monday of March, 1889, and the tax which was afterwards levied upon that interest became by relation *637a lien upon the land as of that date, yet until the tax was levied there was no liability or obligation for its payment created against either the property or its owner. This tax was levied on the first Monday in October of that year (Pol. Code, sec. 3714), but prior to that date the plaintiff had paid the mortgage debt and caused the mortgage to be canceled. The constitution (art. XIII., sec. 4), and the statute passed in pursuance thereof (Pol. Code, sec. 3627), authorizing the assessment of a tax upon the mortgage, provide that “ if the owner of the property shall pay the tax so levied on such security, it shall constitute a payment thereon, and, to the extent of such payment, a full discharge thereof; provided, that if any such security or indebtedness shall be paid by any such debtor of debtors, after assessment and before the tax levy, the amount of such levy may likewise be retained by such debtor or debtors, and shall be computed according to the tax levy for the preceding year.” There is no provision in the constitution or statute which gives to the mortgagor the right to be reimbursed for this payment in any other mode; and under the familiar rule that when the right and the remedy are purely statutory, the remedy provided by the statute is the only mode of preserving the right, if the plaintiff would insist upon this right he should have deducted the amount of the tax from the debt at the time that he paid the debt. In the absence of the constitutional provision, there would be no obligation upon the mortgagee, as between him and the owner of the land, to pay the tax upon the mortgage, and the owner of the land would not be able to compel such payment by him. The obligation created by such tax exists only in favor of the state, and the tax is a charge upon the property against which it is assessed, and not a personal obligation against the mortgagor. With the exception of poll-taxes, taxes are always levied upon property, and not against individuals, and the mortgage tax is a tax upon the security, and not against the mortgagee. The mortgage is made by the constitution “ an interest in the property affected *638thereby,” and the entire tax against the property is divided between the mortgagee and the owner. The provision that the value of the security shall be assessed and taxed to the “owner thereof” creates no different obligation upon the mortgagee from that which is created upon the owner of the property by the provision requiring the value of the property to be taxed to the “ owner of the property.” The tax is not a debt, and there is no personal obligation created by it. It is a burden imposed by the state upon property within its limits; but that burden is a charge against the property, and not against the individuals who own the property, and follows the property through all changes in its ownership, and is eventually paid by the individual who is the owner when the tax is collected. “A debt is a sum of money due by contract, express or implied. A tax is a charge upon persons or property to raise money for public purposes. It is not founded upon contract; it does not establish the relation of debtor and creditor between the tax-payer and state; it does not draw interest; it is not the subject of attachment; and it is not liable to set off. It owes its existence to the action of the legislative power, and does not depend for its validity or enforcement upon the individual assent of the tax-payer. It operates in invitum.” (Perry v. Washburn, 20 Cal. 350.) Nor is its character affected by the fact that the statute authorizes a personal action to be brought for its recovery. Such procedure is merely the statutory method prescribed for its collection, and does not create a debt or personal obligation against the individual to whom it is assessed. (Meriwether v. Garrett,. 102 U. S. 514.) In the absence of statutory authority, an action for the recovery of a tax cannot be maintained (City of Camden v. Allen, 26 N. J. L. 398; Commissioners v. Bank of Stafford, 48 Kan. 561); whereas, if the tax was a debt or personal obligation, its collection could be enforced by suit without statutory authority. (See also City of Augusta v. North, 57 Me. 392; Shaw v. Peckett, 26 Vt. 482; Peirce v. City of Boston, 3 Met. 520.)
*6392. The taxes levied against the property are divided between the mortgagee and the owner, and become a lien upon both the land and the security as of the first Monday in March, and remain a lien thereon until paid. If the owner of the land parts with the property during that period, he is exonerated from any liability to the state for the payment of this tax, and the individual who is the owner of the land when the tax becomes payable must discharge the lien, if he would save it from sale by the collector. The purchaser may protect himself against this lien by proper covenants in the deed from his grantor, as he would against any other lien or encumbrance; but if his conveyance is a naked quitclaim, he cannot call upon his vendor for remuneration for the amount of the tax so paid, any more than for the payment of any other encumbrance which was not a personal obligation against the vendor. The tax against the mortgage is in all respects identical in character with the tax against the land. It is levied and assessed in the same manner and at the same time, is a lien upon the same property, and collected by the same means. The same results, therefore, must follow the transfer of the security as follow the transfer of the land. The vendor is thereby absolved from all obligations for the tax previously levied thereon, and when the tax is payable, it must be paid by the individual who is at the time the owner of the security. By the transfer, all relations between the mortgagee and the owner of the land terminate, and the assignee of the mortgage is substituted in the place of the mortgagee, with all the rights and obligations previously resting upon the mortgagee. The provision in the constitution that “ the taxes so levied may be paid by either party to such security ” refers to this assignee, and not to the original mortgagee. It is only the “ owner ” of the security that is permitted to pay the tax levied upon the property, and have the amount so paid become a part of ihe debt secured, but if the original mortgagee to whom the mortgage has been assessed has assigned the mortgage, *640he is not the “ owner ” of the security, or of any debt to be increased by the payment of such tax, and consequently is not the “party” to the security referred to in the above provision of the constitution. For the same reasons the provision in the constitution that a payment by the owner of the property of the tax levied on the security shall constitute a payment thereon, and to the extent of such payment a full discharge thereof, is applicable only to the holder of the mortgage in case of an assignment, and not to the original mortgagee. Consequently, if such payment be made by the owner of the property after assessment and before the tax levy, his right to reimbursement can be enforced only against the holder of the mortgage, and not against the original mortgagee, and only in the mode pointed out in the constitution.
3. If it can be maintained that by virtue of his relations to the land there was an implied obligation upon the mortgagee to discharge the lien thereon created by the tax upon his security, that obligation, by the transfer of the security, became only a secondary obligation upon him. The primary obligation for the tax is upon the security itself, and the owner of that security is the individual to whom the owner of the land must look primarily for the discharge of the lien. The constitution refers to him alone, and the provision that if the debtor pays the indebtedness “ after assessment and before the tax levy,” the amount of the tax may be “ retained” by him, implies that he must “ retain ” it from the holder of the security, or lose the right to proceed against any other person for reimbursement. The owner of the land, having in his custody this fund—the mortgage debt—out of which to discharge the lien of the tax, must, in equity, apply it to that purpose, or lose any right he may have to resort to other securities. The most favorable position which the owner can claim that the original mortgagee holds towards him in reference to this mortgage tax is, that he is under some obligation to ultimately discharge this lien, but this is only the position of a surety, and as a surety he is entitled to have *641this fund applied to the payment of the tax, or be discharged therefrom. (Civ. Code, sees. 2840, 2849.) The payment by the plaintiff of the mortgage debt without making any deduction for the mortgage tax was a voluntary surrender by him of a security which he held for the purpose of protecting himself and his property against the burden of the tax, and such payment must be regarded as a release by him of any liability which he would claim against the defendant. In Blythe v. Luning, 7 Saw. 506, the mortgagor sought to avail himself of tli e very remedy pointed out by the constitution, by deducting the estimated amount of the mortgage tax, but the mortgagee refused to cancel the mortgage, except upon payment of the full amount of the mortgage debt. In that case the mortgagor and mortgagee were the respective owners of the land and of the security at the time of the assessment as well as at the time of the payment, and there was no question presented involving the right or liability of any other person than the mortgagor and mortgagee, and the court held that the payment of the tax by the mortgagor, under the circumstances of that case, was made under duress, and could be recovered in an action therefor. In my opinion, the judgment and order should be reversed.