Milligan v. Drury

• Decision Date: 23 February 1881
• Citation: 130 Mass. 428
• Parties: Thomas Milligan v. Otis Drury, trustee
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

130 Mass. 428

Thomas Milligan v. Otis Drury, trustee

Supreme Court of Massachusetts

February 23, 1881

Suffolk. Tort for the conversion of two wooden houses and a stable, situate upon land belonging to the defendant as trustee under the will of Cyrus Alger. The case was submitted to the Superior Court, and, after judgment for the defendant to this court, on appeal, on an agreed statement of facts, in substance as follows:

On October 1, 1869, the defendant, as trustee, made a lease of a lot of vacant land on Alger Street in Boston to the plaintiff, for the term of ten years, which lease was duly recorded. The lease provided that the lessee should pay $ 112 per year, "and all taxes and duties levied and to be levied thereon during the term;" and that, "upon the payment of rent and taxes aforementioned upon the said premises, said lessee shall have the privilege or right to remove any and all buildings erected by himself upon said premises at the expiration of the aforesaid lease."

After the making of the lease, and after taking possession thereunder, the plaintiff erected two wooden houses and a stable upon the land. These buildings were erected by the plaintiff expressly for the purpose of removing the same, and the sills rested upon timbers laid on the top of the ground. No excavation of any sort was made in the earth, and nothing was driven into the earth, and the only foundations were the timbers above mentioned.

Until the year 1877, the land and the buildings were taxed separately, the land to the defendant and the buildings to the plaintiff; the land being taxed as real estate, and the buildings as personal property.

In 1877 and 1878, the assessors of Boston taxed the land and buildings together as real estate to the plaintiff, as lessee and occupant. The defendant duly tendered in each year to the collector the amount of the tax on the land, as valued by the assessors, but the collector refused to accept it unless the whole tax was paid. The assessors were duly notified that the buildings belonged to the plaintiff, and should be taxed to him as personal property; but the assessors refused so to tax them. Thereupon the collector proceeded to sell the land and buildings for non-payment of taxes, and the defendant bought the same for the taxes of 1877 and 1878, and received a tax deed from the collector.

At the expiration of the lease, in 1879, the plaintiff, having performed all the conditions of the lease, except the payment of the taxes upon the buildings, demanded of the defendant the buildings that he might remove them. The defendant refused to give up the buildings, or to allow the plaintiff to interfere with them, claiming to hold them under...