Smith v. Abington Savings Bank , 165 Mass. 285 ( 1896 )

Holmes, J.

We are of opinion that the exception of “the taxes assessed for the year 1893 ” from the covenant against encumbrances did not include an assessment for the construction of a sewer. The whole turn of the phrase indicates the common annual taxes for a particular year, and nothing else. It is not enough to show that the power to levy such an assessment falls under the general power of taxation, or that the assessment is a lien on the land, which it must be in order to constitute an encumbrance; but the question is whether the words chosen by the defendant to limit his liability for encumbrances fairly ought to have conveyed to the plaintiff that he took the risk of something otherwise warranted against, in case an assessment should be levied for it during the year 1893. The cases in this State most favorable to the defendant turn on more general expressions than those used in the deed before us. Codman v. Johnson, 104 Mass. 491. Walker v. Whittemore, 112 Mass. 187. Curtis v. Pierce, 115 Mass. 186. Blake v. Baker, 115 Mass. 188. Simonds v. Turner, 120 Mass. 328. See Thompson v. Lapworth, L. R. 3 C. P. 149. The tendency of the cases most nearly in point here and elsewhere is adverse to its contention. Boston Seamen’s Friend Society v. Boston, 116 Mass. 181. Harvard College v. Boston, 104 Mass. 470, 483. Beals v. Providence Rubber Co. 11 R. I. 381. People v. Brooklyn, 4 Comst. 419, 432, 433.

Demurrer overruled.