delivered the opinion of the court.
The writ of error in this case seeks a reversal of a judgment for one hundred dollars in favor of plaintiff and against defendant on the finding of the issues by the court under a submission in which trial by jury was waived.
The action arises under an agreement between the parties for an exchange of real estate and involves the construction of the words “subject to taxes and special assessments levied and payable after the year A. D. 1911.” The trades were closed, the deeds were passed and the contract was canceled as having been performed by all the parties to it.
The contract is dated August 24, 1912. The special assessments said to be involved are claimed to be payable in instalments after 1911. We think that the word “payable” used in regard to special assessments means by construction that the purchaser should pay any amounts not due but payable as special assessments after the year 1911; so that notwithstanding the special assessments were a lien prior to 1911, the instalments involved were not payable until after 1911. It therefore follows that the payment of unpaid special assessments devolved, under the contract, upon the purchaser. Furthermore, there is no evidence in the record establishing as a fact that any special assessments were ever levied, charged or assessed against any property embraced within the contract between the parties; neither is there any attempt to make any legal proof of any such special assessments. One of the witnesses assumed that certain special assessments rested upon the property, but such evidence is not sufficient to meet legal requirements
The finding and judgment of the Municipal Court are wrong, and as plaintiff was not entitled to a judgment for' any sum under his statement of claim and the evidence, the judgment of the Municipal Court is reversed and a judgment of nil capiat and for costs entered in this court.
Reversed with judgment of nil capiat and for costs.