Phinney v. Foster , 189 Mass. 182 ( 1905 )

Hammond, J.

Since the plaintiff and the defendant have respectively suceeeded to the rights and liabilities of the original parties to the lease we shall treat them as though they were such parties.

The first question is whether the lessor’s covenant to “ save' the lessee harmless from all taxes, assessments and betterments levied upon said premises until the termination of this lease ” applies to the taxes upon the buildings which were subsequently erected by tbe lessee and by tbe terms of tbe lease were his own property. The question seems to turn upon the meaning to be given to the words “ said premises.” Do they mean simply the land which was the only thing in existence at the time of the lease, or do they mean the land with such buildings as may be upon it at any time during the existence of the lease ?

It is to be noted that the covenant is preceded in tbe lease only by the description of the land, the reservation of rent, and an agreement giving to the lessee a conditional right to exercise certain options for the purchase of “ said premises ” and adjoining land. It is followed by provisions relative to the use which the lessee may make of the land. It is evident that the parties contemplated that the lessee might make some changes in the surface of the land and might erect buildings of considerable value. The buildings were to be the property of the lessee and he had the right to remove them either before or after the termination of the lease, except in case of forfeiture of the lease on his part. Under the lease buildings to the assessed value of $80,000 were erected.

There was no restriction as to the nature, size or cost of the buildings which the lessee could erect. For aught ’the lessor knew they might have been so valuable that the tax assessed on their account would exceed the whole amount of the rent. The lessor does not seem to have had any interest whatever in the “amusement enterprise” for which the lessee intended to use the premises. The amount of the tax which would be assessed upon the land alone could be fairly estimated by the lessor, while the value of the buildings to be erected was entirely within the discretion of the lessee. As between the parties to the lease the land belonged to the lessor and the buildings to the lessee. Neither owned the whole. In view of the particular location of this covenant in the lease and the other provisions of the lease, a majority of the court are of opinion that the term “ said premises ” in the covenant embraces simply the land; that the covenant considered as a whole was restrictive in its nature as to the portion of the ordinary taxes which the lessor was to pay, and was intended to confine his liability to the portion of the taxes which might be assessed upon the valuation of the land exclusive of the buildings; or, in other words, that as between the parties the lessor was not bound to pay the increase in the taxes due to the valuation of the buildings. It was a “ different agreement ” within the meaning of R. L. c. 12, § 20. The case is clearly distinguishable from Milligan v. Drury, 130 Mass. 428, cited by the defendant.

The next question is whether the lessor who has paid the tax on the buildings can recover the amount from the lessee. Strictly speaking, there has been no tax on the buildings, as such, but we use the phrase as a convenient one to designate the increase in the tax which is due to their assessed valuation. Whatever may be the agreement of owners as to whether buildings shall be personal property or real estate, the statutes provide that “ real estate for the purpose of taxation shall include not only all land within the commonwealth but also all buildings and other things erected on or affixed to the same.” R. L. c. 12, § 3. While it is true that the statutes provide that there shall be a valuation of the land exclusive of the buildings, and of the buildings exclusive of the land, still the tax is assessed as one indivisible real estate tax upon the whole property, and a lien for the whole tax exists upon the whole property. R. L. c. 12, § 60, and c. 13, § 35. Milligan v. Drury, ubi supra. McGee v. Salem, 149 Mass. 238, and cases cited.

On May 1, 1903, the plaintiff was the owner of this land and also of a parcel of land adjoining, and on that day there was assessed to him a tax upon both of these parcels and upon all the structures existing on the parcel named in the lease. The whole property was valued at $70,000, of which $30,000 was the valuation placed upon the buildings owned by the defendant. The whole tax was $1,989, of which $540 was the portion assessed upon the value represented by these buildings. The plaintiff requested the defendant to pay the tax upon the buildings and the defendant refused.

The situation then was this. There was no tax upon the buildings as such, and hence there was no personal liability on the part of the defendant to pay anything to the collector. The tax was wholly upon the real estate which included for purposes of taxation the buildings owned by the defendant. This tax was a lien upon the whole property including the buildings, and while there was no personal liability which the collector could enforce against the defendant, yet the defendant’s property was held liable, and the payment of the tax enured to the benefit of the defendant’s estate by discharging that liability. The plaintiff could not release his own property by paying a part of the tax. He must pay the whole or allow the property, land and buildings, to be sold. He was therefore compelled by law to pay an obligation which although not personal to the defendant was nevertheless in the nature of a charge upon the latter’s estate.

It is a familiar principle of law that while one cannot make himself the creditor of another by voluntarily paying the debt of the latter without his request, still where one to save his property from being sold on legal process is compelled to pay money which another is under a legal obligation to pay, and which as between the two the latter should pay, then in law the payment is made at the request of the latter, and the former-may recover from him. Exall v. Partridge, 8 T. R. 808. Hale v. Huse, 10 Gray, 99. Nichols v. Bucknam, 117 Mass. 488. In the case before us there was, it is true, no legal personal liability on the part of the lessee to pay the tax upon the buildings, and there was only a lien upon them, but, as was said by Gibbs, C. J. in Taylor v. Zamira, 6 Taunt. 524, “ nothing can rest on that distinction.’’ The principle is the same whether the debt be personal or only a lien upon the property. In either case the law implies a request by the person relieved, and the person who pays may recover of him whose estate is benefited. For a-short discussion of the point see the notes to Lampleigh v. Brathwait, 1 Smith’s Lead. Cas. (8th Am. ed.) 151, et seq.

In the opinion of a majority of the court the demurrer should be overruled.

Demurrer overruled.