Walker v. Whittemore

Ames, J. It has recently been decided by this court, after a very full and able discussion by learned counsel, that the assessment for betterments described in this bill is a tax which the city of Boston had a right to impose and collect. Harvard College v. Boston, 104 Mass. 470. Codman v. Johnson, Ib. 491. In the 189 last case, it was held that a covenant by a lessee to pay all taxes and assessments, whether in the nature of taxes now in being or not, which may be payable or assessed in respect of the demised premises, binds him to the payment of an assessment of this description. It is true that in the case before us the lease was made before any of the betterment laws were passed. But the terms in which the covenant of the lessee is expressed are exceedingly comprehensive, and seem to have been intended to meet any and every form of civil imposition which might come into existence. The covenant includes “ all and singular the taxes, rates, charges, and assessments which shall or may from time to time and at any time be levied, assessed, or made on the demised premises, or in respect of the same, for or on account of any matter or cause whatever.” These words are sufficient to cover, and must have been intended to cover, all possible forms of taxation. They import that the lessors were. to receive the stipulated rent absolutely, and subject to no deduction. Bleecker v. Ballou, 3 Wend. 263. It is a charge upon the owner by reason of his ownership, against which he undertook to guard himself by the terms of his lease. Thompson v. Lapworth, L. R. 3 C. P. 149. The plaintiffs contend that the case falls within the provisions of St. 1871, o. 382, § 9, which provides that when such an assessment is made upon an estate, the whole or any part of which is leased, the owner of the estate shall pay the assessment, and the tenant shall pay to him ten per cent, annually upon a certain proportion of the assessment. But it is not to be supposed that the legislature intended to release or modify any express covenant made by the tenant in the lease itself. If the tenant has covenanted to pay all taxes, ordinary and extraordinary alike, it is not in the power of the legislature to alter his contract, and substitute another less burdensome to the lessee in its place, without the consent of the lessor. We must therefore consider the statute as establishing the rule only for cases in which the parties have not otherwise provided by the terms of their lease. Whatever hardship there may be in the case, it arises entirely from the terms of the written covenants, and is beyond the power of the court to relieve. Bill dismissed, with costs,