| Mass. | Oct 15, 1872
Taxes are assessed as of the first, day of May in each year; and, on real estate, “ to the person who is either the owner or in possession thereof' on the first day of May.” Gen. Sts. c. 11, § 8. They “ constitute a lien thereon for two years after they are committed to the collector.” Gen. Sts. e. 12, § 22. To be effectual, this lien must relate back to the first day of May. Such, doubtless, was the intent, and should be the construction of this provision of law; although practically the tax is not assessed until some weeks or perhaps months later.
It is agreed that the defendant “ was the owner and in possession ” of the land in question on the first day of May 1869. The tax, then, was lawfully assessed to him, and constituted a lien upon the land. There is no point of time less than the day, at which the tax can be regarded as laid. It will be sustained by ownership or possession during any part of the day. It would have been equally valid if it had been assessed to the plaintiff, who became owner on that day.
The covenant against incumbrances relates to the present condition of the title. Whether a lien, to be created by the laying of a tax, subsequent in actual imposition, but by law relating back to the first day of May, constitutes a breach of this covenant in a deed dated April 30, and delivered May 1, we need not decide; because we think it is clearly a breach of the covenant to warrant and defend; and, by the agreement of facts, if it is held to be a breach of either covenant, the plaintiff is entitled to the same measure of damages in one case as in the other.
The covenant to warrant and defend is prospective. The tax being lawfully assessed to the defendant, constituting a lien upon the land, and that lien being enforced by a sale, in due form, the plaintiff was obliged to buy in the superior title to protect himself from eviction. That outstanding title or right being derived through the defendant, there was a literal breach of his covenant to warrant and defend. 2 Greenl. Ev. § 244. 2 Washb. Real Prop. 666. Curtis v. Deering, 3 Fairf. 499. The warrantor is bound by the literal purport of his covenant.
Judgment for the plaintiff.