111 A. 840 | Conn. | 1920
This case turns upon the construction which should be given to the agreement, Exhibit C, when read in the light of the attendant and surrounding circumstances.
The agreement of purchase and sale, Exhibit B, between Hill and Smith, and the deed with its covenants of warranty, appear to make any tax lien which came into effect before November 30th, 1917, the date of the conveyance, a charge against the intestate Smith.
Under the charter of Norwalk (17 Special Laws, p. 489, § 6), "any lien for taxes annually laid" shall date from the first day of the preceding October. A custom had grown up in Norwalk of laying the annual tax for a fiscal year before the fiscal year began, and of laying it upon the assessment list of the calendar year preceding that in which the tax was laid. For example, on July 2d 1918, an annual tax was laid on the assessment *583 list of 1917, for the fiscal year ending August 31st, 1919. This tax was payable December 1st, 1918, but under the charter of the city became a lien on the land October 1st, 1917. The annual tax for the fiscal year ending August 31st, 1918, was laid in 1917 on the assessment list of 1916, and the tax became a lien on the premises taxed on October 1st, 1916. So that, in accord with this method of laying taxes, the annual taxes laid on the premises in question for the fiscal years ending August 31st, 1918, and August 31st, 1919, became liens on the premises October 1st, 1916, and October 1st, 1917, respectively. Among buyers and sellers of real estate in Norwalk, under this method of taxation, there was necessarily much confusion caused as to the state of any parcel of land in relation to tax liens. The fiscal year was known to end August 31st, and a taxpayer knew whether his annual taxes had been paid for any fiscal year.
It is in the light of these conditions that the contract, Exhibit C, is to be construed. The intestate Smith knew, when Exhibit C was executed, that he had paid the annual taxes on the property for the fiscal year ending August 31st, 1917. The plaintiff and Smith both knew that the annual taxes for the fiscal year ending August 31st, 1918, had not been paid. Construing the contract, Exhibit C, which was made at the time of the execution and delivery of the warranty deed to the plaintiff, in the light of all the attendant and surrounding circumstances, it was clearly the intent of the parties to definitely and equitably dispose of all questions as to the payment of the annual taxes on the property in question, and they did so by the agreement that Smith should pay such proportion of the current annual taxes as the time from the beginning of the current fiscal year to December 1st, 1917, bore to the entire year, and that the remaining portions of the *584 current annual tax and all future annual taxes should be borne by Hill. This apportionment was intended to be final, and to supersede any claims as to the payment of taxes or tax liens under the contract, Exhibit B, or the warranty deed to the contrary. This was an equitable adjustment of the tax situation.
The first clause in Exhibit C reads: "Whereas Dr. Smith has placed in the hands of The Fidelity Title Trust Company the sum of Seven Hundred (700) Dollars to answer for the payment of all taxes which may be a lien on the premises situated in Norwalk, Connecticut, this day conveyed to Mr. Hill, up to December 1st, 1919." The plaintiff urges that this clause indicates that the subsequent clause was intended to carry out the statement as to the payment of tax liens found in such first clause. In other words, the plaintiff claims that the second clause, reading "Now therefore, we Dr. Smith and George T. Hill, Jr. agree that Dr. Smith shall pay all taxes up to December 1st, 1917 and Mr. Hill agrees to pay all taxes after December 1st, 1917, on premises this day conveyed to said Hill," should be construed as if the word "taxes" therein read tax liens. This contention, if true, renders the making and executing of the agreement an idle ceremony. Exhibit C was clearly intended to have effect by displacing such obligation as to taxes and tax liens as was recited in said first clause.
The use of "Whereas" in Exhibit C has the meaning of although, rather than of since. The trial court therefore correctly rendered judgment for the defendant.
The third reason of appeal, in relation to the admission in evidence of Exhibit 5, cannot be considered, as the finding contains no statement of such a ruling.
There is no error.
In this opinion the other judges concurred.
