On Rehearing. It is insisted that there is a conflict between the Alabama statute and the Federal Farm Loan Act, in that the former requires this mortgage tax to be paid by the lender, whereas the latter provides that such a charge can only be paid by the borrower. (A point not made upon the previous consideration of this cause.) Whether or not such a conflict could have any material bearing upon the question in hand we need not decide, for the reason *Page 458 that we see no such conflict. True, subdivision (a) of schedule 71 of the Act of 1919 (Acts 1919, p. 420) levies this tax against the lender, and requires a certificate that the same has been paid by the lender before the instrument can be recorded; but the certificate in question is required only by the probate judge or his clerk. Subdivision (d), schedule 71. This simply means that the probate judge must collect the tax and so certify before recording the instrument, but our statute does not preclude the lender from contracting with the borrower as to who shall pay the same, and there is therefore no conflict between the state law and paragraph 9 of section 13 of the federal act (U.S. Comp. St. § 9835g), even if said last act requires this charge to be paid by the borrower and excludes the right of the lender to do so. In other words, there is nothing in the Alabama statute in conflict with paragraph 9 of section 13 of the federal act, or which prohibits the lender from including this charge in the preliminary expense for negotiating the mortgage loan, or from advancing the same under an agreement with the borrower, as provided by said paragraph 9 of section 13 of the federal act. The Alabama statute simply means that this tax must be paid by the lender, the owner of the mortgage, when it is tendered for record and so certified by the probate judge or his clerk before the same is recorded, but as to the source from which the lender gets the fee the state is not concerned.
SAYRE, SOMERVILLE, GARDNER, and THOMAS, JJ., concur.