112 Mass. 187 | Mass. | 1873
It has recently been decided by this court, after a very full and able discussion by learned counsel, that the assessment for betterments described in this bill is a tax which the city of Boston had a right to impose and collect. Harvard College v. Boston, 104 Mass. 470. Codman v. Johnson, Ib. 491. In the
The plaintiffs contend that the case falls within the provisions of St. 1871, o. 382, § 9, which provides that when such an assessment is made upon an estate, the whole or any part of which is leased, the owner of the estate shall pay the assessment, and the tenant shall pay to him ten per cent, annually upon a certain proportion of the assessment. But it is not to be supposed that the legislature intended to release or modify any express covenant made by the tenant in the lease itself. If the tenant has covenanted to pay all taxes, ordinary and extraordinary alike, it is not in the power of the legislature to alter his contract, and substitute another less burdensome to the lessee in its place, without the consent of the lessor. We must therefore consider the statute as establishing the rule only for cases in which the parties have not otherwise provided by the terms of their lease.
Whatever hardship there may be in the case, it arises entirely from the terms of the written covenants, and is beyond the power of the court to relieve. Bill dismissed, with costs,