Amory v. Melvin

Mobtom, J. These actions are brought upon the covenants of leases, to recover the taxes assessed for the year 1870. In the leases the defendants covenant that they will pay “ all taxes and assessments whatsoever, which may be payable or assessed in respect of the premises, or any part thereof, during said term. The leased premises were parts of a large building which was 87 leased to several tenants. At the trial the presiding judge admitted evidence of a usage in Boston, in such cases, to apportion the whole tax assessed upon the building among the different tenants according to their respective rents. This question was directly decided in Codman v. Hall, 9 Allen, 335. Though an estate is leased to several independent tenants, taxes are uniformly assessed upon the whole estate. The covenant of each tenant to pay taxes cannot be construed to mean the taxes upon the whole estate. From the nature of the case some mode of apportioning the whole tax must be contemplated by the parties. The usage ro apportion it in proportion to the rents paid by the tenants is a convenient and reasonable usage, and in the absence of any express stipulation upon the subject, the parties must be deemed to have contracted in reference to it. The defendants also contend that as their leases expired on the first day of July, 1870, and as the board of assessors did not fix the rate of taxation and assess the tax until August, they are not bound by their covenants to pay the taxes for the year 1870. But it is immaterial when the valuation of estates is completed, or when the tax is payable. The assessment, when completed, relates back to the first of May, and the tax is in law regarded as assessed on that day. The taxes for 1870 were therefore taxes “ assessed in respect of the premises during said term,” and the defendants are liable for it under their covenants. The case of Wilkinson v. Libbey, 1 Allen, 375, is decisive upon this point. Exceptions overruled.