Gordon v. Richardson

• Citation: 70 N.E. 1027,185 Mass. 492
• Parties: GORDON v. RICHARDSON.
• Decision Date: 17 May 1904
• Court: United States State Supreme Judicial Court of Massachusetts

185 Mass. 492

70 N.E. 1027

GORDON v. RICHARDSON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 17, 1904

COUNSEL

Chas.

R. Darling, for appellant.

Harvey N. Shepard, for respondent.

OPINION

LORING J.

The ground on which a tenant gets relief in equity from the forfeiture of his estate for a failure to pay rent is that in equity the landlord's right of re-entry is given as security for the payment of the rent, and on the rent being paid the very thing is done for which the security was given and, although the payment in that case is made after it is due, on interest being paid compensation is made for the delay in performance, and on compensation being made relief is given. Peachy v. Somerset, 1 Stra. 447; Hill v. Barclay, 16 Ves. 402, and 18 Ves. 56; Reynolds v Pitt, 19 Ves. 134; Howard v. Fanshawe [1895] 2 Ch. 589. The Massachusetts cases are Atkins v. Chilson, 11 Metc 112; Sanborn v. Woodman, 5 Cush. 36. See, also, in this connection, Stone v. Ellis, 9 Cush. 95; Hancock v. Carlton, 6 Gray, 39, explained in Mactier v. Osborn, 146 Mass. 399, 402, 15 N.E. 641, 4 Am. St. Rep. 323.

But that does not cover the case before us. In this case the defendant entered for breach of the covenant to pay taxes, as well as for breach of the covenant to pay rent. When he exercised his right of re-entry in September, 1902, not only was the tax for 1900 not paid, but the estate of the defendant had been sold because of the plaintiff's failure to pay this tax as he had agreed to do. The defendant's estate had been sold to pay this tax in the June preceding the September when the defendant entered on the estate. The thing here in question secured by the right of re-entry not only has not been performed, but it cannot now be performed. The tax for 1900 has been paid, and no longer can be paid by the plaintiff. The tax was paid to the collector by the application thereto of the proceeds of the tax sale. There is a right to redeem this tax title, but the tax has been paid, and the thing secured by the landlord's right of reentry can no longer be performed by the tenant. By the very terms of the covenant secured by the forfeiture, any performance of it is at an end, and that is the end of the plaintiff's application for relief from the forfeiture in the case at bar.

Moreover, if it were permissible to look beyond the terms of the covenant here in question to what might be termed its true nature and substance, the plaintiff would gain nothing. If you look behind its terms, the real substance and nature of a covenant to pay taxes assessed on the demised premises is to protect and hold harmless the landlord's estate. When the breach of the covenant has reached the stage where the landlord's estate is sold to pay the taxes which the tenant should have paid, where the stage has been reached that through the default of the tenant a paramount outstanding title has come into existence, we have a breach of covenant for which the plaintiff fails to show that compensation can be made. We have a breach of a covenant, like the breach of a covenant to insure or repair, where equity does not ordinarily grant relief against forfeiture of the tenant's estate. Mactier v. Osborn, 146 Mass. 399, 402, 15 N.E. 641, 4 Am. St. Rep. 323. Hill v. Barclay, 16 Ves. 402, and 18 Ves. 56 (overruling Lord Erskine's opinion in Sanders v. Pope, 12 Ves. 282, which never went to decree, page 294); Reynolds v. Pitt, 19 Ves. 134; Bracebridge v. Buckley, 2 Price, 200; Green v. Bridges, 4 Sim. 96. Lord Erskine's opinion in Sanders v. Pope was in effect that the forfeiture of a leasehold estate for breach of a collateral covenant stood on the same ground at common law as that on which the forfeiture of a bond stands under St. 8 & 9 Wm. III, c. 11, § 8, which (as Baron Parke said in Beckham v. Drake, 2 H. L. 579, 629) 'in effect makes the bond a security only for the damages really sustained.' But that view did not prevail. It is settled that in case of waste (Peachy v. Somerset, 1 Stra. 447), in case of a breach of a covenant to make repairs ( Hill v. Barclay, 16 Ves. 402, and 18 Ves. 56; Bracebridge v. Buckley, 2 Price, 200), and in case of the breach of a covenant to insure (Reynolds v. Pitt, 19 Ves. 134; Green v. Bridges, 4 Sim. 96), it being impossible for the tenant to show affirmatively that compensation can be made, relief ordinarily will not be given. It was this which C. Allen, J., had in mind in Lundin v. Schoeffel, 167 Mass. 465, 469, 45 N.E. 933, when he said of the case then before the court that it 'was not like a case where the omission caused a present injury or increase of risk to the lessors, as in the case of waste, nonrepair, or noninsurance.' The lack of recent cases in England is owing to the fact that relief is given by statute in case of covenants other than the covenant to pay rent. St. 22 & 23 Vict. c. 35, § 4, authorized relief in case of the breach of a covenant to insure, and St. 44 & 45 Vict. c. 41, § 14, in case of all other covenants except the covenant to pay rent (see clause 8 of section 14), in case of which a bill must be brought within six months from the execution putting the landlord in possession, by force of St. 4 Geo. II, c. 28. It is settled that, if a bill is brought within the time allowed for relief against a forfeiture for breach of a covenant to pay rent, the relief is given at common law. Howard v. Fanshawe [1895] 2 Ch. 589; Stanhope v. Haworth, 3 T. L. R. 34. As to the purpose of St. 4 Geo. II, c. 28, see Lord Mansfield in Doe v. Lewis, 1 Burr. 614, 619, and Wigram, V. C., in Bowser v. Colby, 1 Hare, 109, 125.

From what has been said, it is apparent that we are not prepared to go so far as the Court of Appeals went in its opinion in Giles v. Austin, 62 N.Y. 486, 493. The facts in that case are stated in 6 Jones & S. 215, and it appears that the failure to pay the taxes in that case was through accident and mistake.

There is, however,...