Curtis v. Pierce

115 Mass. 186 | Mass. | 1874

Gray, C. J.

The indenture sued on appears to the court to have been carefully and clearly framed to express the intention of the parties that the burden of every description of taxes, which might be assessed upon the estate during the term of the lease, either under laws already existing, or under future legislation, should be borne by the lessee and not by the lessors. It is well settled in this Commonwealth, that an assessment upon an estate under the betterment acts, though local and special in its character, is yet a kind of tax. The covenant of the lessee in this case in terms includes “ the amount of the rates, taxes and duties of every kind; ” it is not limited to taxes assessed upon the lessee, but embraces those “ that shall be levied or assessed on the demised premises or the lessors of the same ; ” it is declared to be equally applicable whether the tax is imposed by national, by state, or by municipal authority; and, like the previous covenant for the payment of rent, it speaks not only of every year, but of any part of a year, during the term of the lease. Each of these clauses appears to us to have been inserted with a view of making more sure that the covenant should have as comprehensive a scope and effect as possible, and not of restricting it in any particular. The St. of 1871, c. 882, having been passed since the making of this indenture and the laying of the assessment in question, has no application to this case. The plaintiffs are therefore entitled to maintain'their action. Payne v. Burridge, 12 M. & W. 727. Thompson v. Lapworth, L. R. 3 C. P. 149. Bleecker v. Ballou, 3 Wend. 263. Harvard College v. Aldermen of Boston, 104 Mass. 470, 483. Codman v. Johnson, Ib. 491. Walker v. Whittemore, 112 Mass. Judgment for the plaintiffs.