Massachusetts General Hospital v. City of Boston

| Mass. | May 23, 1912

Sheldon, J.

This case is governed by Burr v. Boston, 208 Mass. 537" court="Mass." date_filed="1911-05-16" href="https://app.midpage.ai/document/burr-v-city-of-boston-6431413?utm_source=webapp" opinion_id="6431413">208 Mass. 537. As was said there, the city had unconditionally accepted Mr. Parkman’s devise on the terms on which it was made. The authority given by the city to its treasurer to receive and hold the property was merely its designation of the officer who was to have charge thereof. The title was not in the executor, but in the city. If the executor was allowed to manage the property, to collect the rents and profits and mingle these with other funds for which he was afterwards to account, this in no way affected the legal title or the property rights of the city. Towle v. Swasey, 106 Mass. 100" court="Mass." date_filed="1870-11-15" href="https://app.midpage.ai/document/towle-v-swasey-6416308?utm_source=webapp" opinion_id="6416308">106 Mass. 100, 107.

The plaintiff’s agreement of purchase stipulated that “rents, taxes and insurance . . . [were] . . . to be adjusted as of the day of the delivery of the deeds.” This did not import a promise by the plaintiff to pay in full or in part taxes which had not been and could not be assessed lawfully upon the property and which did not constitute a lien thereon. The provision in the deed that the conveyance was “subject to taxes for the current year” has no broader meaning. There were no taxes for the current year to which the property was subject. Campbell v. Haven, 211 Mass. 121" court="Mass." date_filed="1912-02-28" href="https://app.midpage.ai/document/campbell-v-haven-6431696?utm_source=webapp" opinion_id="6431696">211 Mass. 121.

If, as the defendant has argued, the plaintiff has not paid in full the price which it agreed to pay, yet that fact raises no question to be considered in this case. There has been no claim of a set-off, and we need not consider whether such a claim could have been maintained.

It may be added, as that question has been suggested by the defendant, that neither in Burr v. Boston, ubi supra, nor in the present case, has the court considered whether real estate situated in other towns and included in Mr. Parkman’s devise to the defendant is liable to taxation in those towns.

Judgment must be entered for the plaintiff on the finding.

So ordered.