139 Ga. 649 | Ga. | 1913
On August 3, 1880, Atharates Atkinson and E. C. Foster as executor of A. G. Foster jointly executed the following instrument:
“Whereas Atharates Atkinson of the said county did lease from Albert G. Foster, late of said county, deceased, two lots on the northeast side of the public square in the city of Madison in said county, one known as the Masonic Hall corner, and one the Goldberg lot, upon condition that the said Atkinson might erect houses thereon, paying the said Foster for the ground rent thereof the sum of three hundred dollars annually on or before the first day of July in each and every year, the said Atkinson to retain possession so long as he paid said rent, and upon his failure to pay the
The plaintiffs, alleging themselves to be the successors in title of Atkinson, brought suit against the defendants, who axe the successors in title of Foster, alleging that the City of Madison 'had assessed for taxation the land, together with the improvements thereon, at a stated sum; three fourths of which is attributable to the improvements and one fourth of the assessment is attributable to the land without the improvements. The plaintiffs contended that the taxes should be borne in that proportion by them and the defendants. The defendants declined to admit the plaintiffs” contention. Whereupon the plaintiffs paid the whole tax under an
The instrument out of which grows this suit was construed, in Atkinson v. Orr, 83 Ga. 34 (9 S. E. 787), to be a perpetual lease on condition of the prompt payment of an annual ground rent. The exigencies of the present action call for further interpretation, so as to determine the nature of the estate or interest passing thereunder to the lessee. As ordinarily employed, the word “lease” implies a term and reversion to the owner of the land after its termination, and only a chattel interest passes. In the argument of the learned Chief Justice who delivered the opinion in the 83d Georgia, he made a clear demonstration that the parties to this instrument meant something more than the creation of a tenancy by the year, or from year to year. Two features were especially stressed by him, viz.: that there was no specification or limit to the character or value of the buildings to be erected by the lessee, and that all buildings, however expensive or valuable, were to become the absolute property of the lessor in the event of the nonpayment of rent for a single year. He also took into consideration that the lease was “in perpetuum,” and that the owner of the premises was to be restored to possession, not by the termination of any term, but by a forfeiture and re-entry1 upon failure to pay rent. And when it is further considered that the right of possession in express words is extended to the lessee, “his heirs or assigns,” it is clear that the learned Chief Justice was not speaking of leases in the ordinary acceptation of the word.; but when he characterized this instrument as a perpetual lease he had in mind the quality of the estate that the lessee took, which was something more than 'a leasehold interest. A decisive indication that the instrument was not intended as a technical lease, or to create a chattel interest, is that the lessee shall have and retain possession of the premises, for himself, his heirs, and assigns, so long as he complies with his contract. The original signification of the word “lease” is that the lessee has an estate into which he cometh by lawful means. Co. Litt. 43b. The grant of the possession of one’s land to another
In Jamaica Pond Aqueduct Corp. v. Chander, 9 Allen (Mass.), 159, it was held that “An instrument by which, for a consideration received all at one time, the grantors ‘lease’ certain land to the grantee; mentioning no time during which the estate is to continue, and reserving, ‘so long as this lease shall continue, the right to any logs or pipes in the same leased premises,’ and certain other rights connected therewith,-to have and'to hold the same to the grantee, ‘his heirs and assigns, under the restrictions and reservations aforesaid, so long as said grantors shall keep pipes in his land, as aforesaid, and no longer,’ conveys a base fee.” The Supreme Court of Pennsylvania has held that a lease to A.B., his heirs and assigns, creates a base fee. Robb v. Beaver, 8 Watts & S. 107. In Connecticut Spiritualist Camp-Meeting Assn. v. Town of East Lyme, 54 Conn. 152 (5 Atl. 849), a corporation owning a camp-ground, upon which was erected a pavilion and in which religious services were held, leased cottages on the camp-ground to lessees; the lease being to the lessee and “his heirs and assigns forever,” but forfeitable on breach of certain conditions; and it was held that such a lease created a determinable or base fee.
We think that a perpetual lease is the substantial equivalent of a fee reserving rent. A grant of land to another, reserving a fixed annual rent with power to re-enter for non-payment of rent, creates a defeasible fee. Van Rensselaer v. Hayes, 19 N. Y. 68 (75 Am. D. 278); Stephenson v. Haines, 16 O. St. 478; Hudson Tunnel Co. v. Attorney-General, 27 N. J. Eq. 573. In the last-cited case lands under water were granted by the State, and in the grant a rent payable to the State was reserved, and in the instrument of grant power to re-enter for non-payment of r.ent was also reserved. One of the questions was, what interest in the land did the State
Ground rents are not unknown to the jurisprudence of this State. Three cases involving this subject have been considered by this court. Laurence v. Savannah, 71 Ga. 392; Mayor &c. of Savannah v. Weed, 84 Ga. 683 (11 S. E. 235, 8 L. R. A. 270); Wells v. Savannah, 87 Ga. 397 (13 S. E. 442). In the latter case land demised forever, subject to a perpetual rent, was treated as the property of the grantee, his heirs and assigns, and ground rent reserved was treated as an incorporeal hereditament belonging to the vendor, his heirs and assigns.
We have reached the conclusion, from the foregoing considerations, that under the instrument in this case Atkinson took a base fee, that is, an estate in fee, defeasible upon non-compliance with the conditions therein named, and that the estate of Foster reserved an annual rent charge, which, so long as the estate granted is not forfeited, is an incorporeal hereditament. The base fee and the ground rent are inheritable,’ and the heirs and assigns of each sustain the same relation to each other as did the original parties to the instrument. Scott v. Lunt, 7 Peters, 596 (10 Curt. 584, 8 L. ed. 797); McCammon v. Cooper, 69 Ohio St. 366 (69 N. E. 658).
Our Civil Code, § 1018, declares: “Taxes are to be charged against the owner of property if known, and against the specific property itself if the owner is not known. Life-tenants, .and those who own and enjoy the property, are chargeable with the tax thereon. Hence, while the public may treat property as belonging either to the maker or the holder of a bond for titles, when the latter is in possession, yet as between the parties the one receiving the'
The petition was projected and the ease tried on the hypothesis that the two parties to the contract had separate interests in the land, and that as between themselves there should be 'an apportionment of the tax. But, as we have attempted to demonstrate, such is not the case. As we view it, the owner of the base fee is the owner of the property in possession, and is liable for such taxes as may be assessed against the property. It is true that his property is burdened with 'a ground rent, but that gives him no more right to call upon the owner of the ground rent for contribution than, if the property be incumbered by mortgage, to call upon the mortgage to share in the payment of the tax assessed upon the property. The mortgagee pays taxes on his mortgage and the mortgagor on the property. Likewise, the owner of the ground rent is personally liable for the tax on his ground rent, and the owner of the base fee is liable for the taxes assessed against the land.
Judgment reversed.
