Holder v. Southern Cotton Oil Co.

Jenkins, P. J.

1. There being no pleading setting up fraud, accident, or mistake in the execution of the contract as sued on, the court did not err in rejecting the testimony offered for the purpose of proving the same, and the only question presented by the record is whether, under the contract as executed, the defendants were liable for the taxes sued for.

2. A stipulation of a lease, providing that the lessee shall pay the taxes against the property covered by the lease, necessarily lias for its consideration the use of the property by the lessee, or the making of the lease, and therefore such a requirement may by the terms of the instrument be so expressed as to constitute a part of the rent; but not necessarily so, since such a provision may constitute a separate and independent covenant based upon the consideration of the making of the lease, but expressly distinguished from ■ the amount contracted to be paid as rent. In the latter case the expressly defined rent obligation can not be so construed and enlarged as to embrace such a separate and independent covenant to pay taxes. -36 Corpus Juris, 114 (§ 754) ; 291 (i 1051), note 78. Accordingly, where the provision as to taxes constitutes a separate and independent covenant, and the amount of rent to be paid is expressly and independently defined, even though the contract contains a provision that, in case the building is destroyed by fire during the term of the lease, the rent shall abate, the destruction of the building does not exempt the lessee from the payment of taxes in accordance with the terms of such a separate and independent covenant, in the absence of some such similar stipulation providing for such exemption. 36 Corpus Juris, 121 (§ 760).

Judgment affirmed.

Stephens and Bell, JJ., eoneur. A. G. Brown, Shackelford & Shackelford, for plaintiffs in error. Jere S. Ayers, Lamar G. Rucker, contra.