Campbell v. Haven

Sheldon, J. The covenant of the defendants was merely to pay any assessment such as was mentioned in their deed for the payment of which any lien then (July 3, 1899) existed on the lot which they conveyed. An assessment was laid upon the lot in June, 1900, and if this had been a valid assessment it is not denied that the defendants would have been bound to pay it. But it was invalid, and no assessment then could be laid because the work had been illegally done. Warren v. Street Commissioners, 181 Mass. 6, and 183 Mass. 119. There was then no power to lay any other or further assessment for the work that had been done. New England Hospital v. Street Commissioners, 188 Mass. 88. Maloy v. Holl, 190 Mass. 277. There was therefore, when the defendants made their covenant, no power to lay any such assessment upon this lot, and the land was not and could not be subject to any existing lien for the payment of such an assessment. The assessment now in question was laid under the authority given by St. 1902, c. 527, and was valid because it was so authorized and because that statute was not unconstitutional. Warren v. Street Commissioners, 187 Mass. 290. But the lien or incumbrance created by that statute could not arise before the statute was passed. The effect of the statute could not have existence before the existence of the statute which was the cause of that effect. [124] We cannot doubt that the word “lien” in the defendants’ covenant refers to the lien of an existing incumbrance, and is not to be extended to include the possibility of a future incumbrance being created by subsequent legislation which does not appear to have been in the contemplation of the parties. This assessment, because there was at the time of the covenant no power to lay an assessment and no existing lien therefor on the land, does not come within the rule of the cases cited by the plaintiff in which it was held that the lien upon the land of an assessment lawfully made thereon dates from the order of construction, when the liability to assessment existed. Here no assessment was possible until St. 1902, c. 527, took effect; and as we have seen, the lien cannot date back from that time. Judgment on the verdict.