Williams v. Monk, 179 Mass. 22

179 Mass. 22 | Mass. | 1901

Holmes, C. J.

This is an action upon a promissory note for a part of the purchase money for land conveyed by the plaintiff to the first named defendant. At the time of the conveyance there was a dispute as to which party should pay an outstanding sewer assessment which was a lien upon the premises. This defendant paid it with money retained out of the purchase money for that purpose, and made the note which was to be paid or returned according to the true construction of the agreement for the sale of the land. That is the only question before us.

Williams’s land was to be conveyed by a “ quitclaim deed . . . conveying a good title to same, free and clear from all mortgage encumbrances, taxes and mechanics liens,” and the question may be narrowed to whether the word “taxes” as here used includes an assessment for a sewer. There is no doubt that the word may be used in such a way as either to include or to exclude it. In Smith v. Abington Savings Bank, 165 Mass. 285, an exception of “ the taxes assessed for the year 1893” from a covenant against encumbrances, in a deed, was held to refer only to the ordinary annual taxes and not to embrace such a lien. But the nature of the instrument and other considerations may give the word a wider meaning. Harvard College v. Aldermen of Boston, 104 Mass. 470, 483. Codman v. Johnson, 104 Mass. 491, 492.

The same general considerations that were in favor of treating the lien as not excepted from the covenant against encumbrances in Smith v. Ahington Savings Bank are in favor of treating it here as-included among the encumbances from which Williams’s land was to be free. In general, when a man buys land he means to buy it free of encumbrances except so far as he expressly agrees to assume them. In this case the deed was to convey “ a good title.” And although it may be argued that these words, so far as they refer to possible encumbrances, are interpreted by the specific enumeration which follows, that argument does not quite destroy the indication to be drawn from them that the "defendant meant to get an unencumbered title to the land. Again, in Smith v. Ahington Savings Bank the very form of the expression pointed to annually recurring rather than to exceptional taxes, whereas here the connection would lead to reading “ taxes ” as meaning all taxes which give rise to liens.

The defendant also conveyed certain lots of land to the plaintiff, and the words of the contract with regard to them are “ Said lots are to be conveyed within fifteen days from this date by the said Williams by quitclaim deed, and said Monk by a good and sufficient warranty deed conveying a good and clear title to same free and clear from all encumbrances.” The last six words might be read as referring to the deeds on both sides, and thus as strengthening the construction which we adopt. But as what Williams was to do had been described earlier in the instrument, we hardly should rely upon this later passage to enlarge the meaning of that which went before. In our opinion the sewer, assessment was a tax within the meaning of the contract.

Exceptions sustained.