Montgomery v. Town of Branford

Decision Date14 June 1928
Citation107 Conn. 697,142 A. 574
CourtConnecticut Supreme Court

Appeal from Superior Court, New Haven County; Christopher L. Avery Arthur F. Ells, and Isaac Wolfe, Judges.

Action by Phelps Montgomery against the Town of Branford consisting of an application in the nature of an appeal from the doings of the Board of Relief of the Town of Branford, where a demurrer to a plea in abatement was sustained by Avery, J and a demurrer to the second and third defenses of the answer sustained by Ells, J., and the case tried to the court Wolfe, J. Judgment for plaintiff, and defendant appeals. No error.

Ernest L. Averill, of Branford, and Thomas R. Fitzsimmons, of New Haven, for appellant.

John Elliott, of New Haven, for appellee.

George E. Beers, of New Haven, amicus curiae.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.


The material allegations of the plaintiff's application are as follows: On May 18, 1926, and many years before, the First Ecclesiastical Society of Branford was the owner in fee of a tract of land in Branford. On this date the plaintiff was the possessor of a leasehold interest in this land by virtue of a lease from Averill to Tyler made in 1903, and assigned by Tyler to plaintiff on July 2, 1908, and he had no other interest or estate in this land. On May 18, 1926, the board of relief of Branford purporting to act under authority of chapter 207 of the Public Acts of 1923, unlawfully made a supplemental list for plaintiff and set this land in such list at $3,000, adding thereto 10 per cent. for his failure to include it in his list.

This land did not on this date stand in the town records of Branford in the name of the plaintiff, but in that of the society. The plaintiff further alleged that this supplemental list and assessment were unlawful and prayed for such relief as he was entitled to under the statute.

To this application defendant filed a plea in abatement that the board of relief had not been summoned to appear and defend; that service had not been made upon its members, but on the defendant town; and that the board of relief, acting under chapter 207 of the Public Acts of 1923, are not agents of the town. The plaintiff demurred to the plea upon the ground that the proper remedy for a nonjoinder of necessary parties was by motion, and not by plea in abatement. The demurrer was properly sustained; the exclusive remedy for misjoinder or nonjoinder is by motion. Rules of Superior Court, Practice Book, § 224. Plaintiff further argues that the statutory right of appeal from the doings of the board of relief expressly provides that the town shall be cited in (General Statutes, § 1240), and that the same right of appeal is given by chapter 207 of the Public Acts of 1923. The contention is sound. The board of relief is an administrative body and the act of 1923 neither imposes new duties upon it nor makes of it a new or independent body. State ex rel. Foote v. Bartholomew, 103 Conn. 607, 613, 132 A. 30; Ives v. Goshen, 65 Conn. 456, 32 A. 932. A reference to the many cases adjudicated since Ives v. Goshen, supra, discloses the uniform practice of citing in the town or city in all appeals from the board of relief. The town was a proper and necessary party defendant.

The second defense of the answer further alleged: That the First Ecclesiastical Society of Branford and its predecessors acquired the land in question for the purpose of maintaining a ministry of the gospel and for public and charitable uses while the statute of 1702 was in effect and under a contract from the state that the land should be exempt from taxation as against the society forever; that since its acquisition the society has devoted all funds derived from the use of the land to the purpose for which it was acquired and that it leased this land on September 5, 1866, to Leggat for a term of 99 years from March 1, 1868, who agreed to pay all taxes assessed thereon; that on July 1, 1908, the plaintiff became a sublessee of the land described, subject to all the provisions of the lease to Leggat, including the payment of all taxes which might be assessed against this land, and that, since the land was devoted to other uses than those for which the society was authorized to use the land, it became taxable against the plaintiff as lessee, who derives the whole benefit from its use.

The third defense made all the allegations of the second defense a part of it, and further alleged that, if the society had been assessed for this land, the defendant would have been under a contractual obligation to repay the tax, and that the plaintiff is not aggrieved by the same tax assessed against him directly.

The plaintiff demurred to these defenses because: It appears that the land stood on the land records in the name of the society, and not in the name of the plaintiff, a sublessee; that the board of relief set the premises in the list of the plaintiff in violation of section 1134 of the General Statutes; that it does not appear that any taxes have been assessed against the society which it is alleged plaintiff is under contract to refund, and further that it does not appear that there is any privity of contract or any right of subrogation between the defendant and the society under which the defendant can assess taxes against the plaintiff.

General Statutes, § 1134, is explicit:

" Any interest in real estate listed for taxation shall be set by the assessors in the list of the party in whose name the title to such interest stands on the land records of the town in which such real estate is situated; but nothing in this section shall affect the provisions of section 1133."

Our decisions have interpreted the record owner to mean the freehold or fee owner. Leased land can only be assessed against the lessor, the freehold owner. Comstock v. Waterford, 85 Conn. 6, 81 A. 1059, 37 L.R.A. (N. S.) 1166; Sanford's Appeal, 75 Conn. 590, 54 A. 739; State v. Bartholomew, 103 Conn. 607, 132 A. 30; State v. Erickson, 104 Conn. 542, 133 A. 683. The lease of Tyler to the plaintiff was for 64 years from 1903. We held in Sanford's Appeal, 75 Conn. 590, 592, 54 A. 739, that a leasehold interest for 40 years was not taxable under section 1134. In Russell v. New Haven, 51 Conn. 259, we held that a lease for 60 years for an " annual ground rent" did not render the lessee taxable on the land, but that the house he had erected thereon was taxable in his name.

Leases for 999 years we have held to be practical conveyances of the fee and taxable against the lessee as owner. Dennis' Appeal, 72 Conn. 369, 373, 44 A. 545; Goodwin v. Goodwin, 33 Conn. 314, 318; Flannery v. Rohrmayer, 49 Conn. 27, 28. The Tyler lease for 64 years was not taxable against the plaintiff as conveying an interest in land. It did not convey the fee, nor create in the plaintiff a freehold interest, nor indeed any interest in the land as such; it merely gave a right to use the land.

The allegation of the second defense that the society under the contract alleged to exist between it and the state in virtue of the statute of 1702 is exempt from taxation can form no part of any real defense to this action. Whether it would have been material in an appeal from an assessment by the town against it we do not express an opinion upon, As to the action by this plaintiff, it is manifestly res inter alios.

The further allegation of this defense that Leggat, the lessee from the society, agreed by his lease to " pay all taxes to said society that said society may or shall be obliged to pay on said land," and that through Tyler, sublessee from Leggat, he became a sublessee, and subject to the provisions of the society's lease to Leggat, and therefore, when the land was devoted to uses other than those the Society was authorized to use, it became taxable against the plaintiff, is a non sequitur. The lease from Tyler to the plaintiff did not obligate the plaintiff to reimburse Tyler for the tax which might be assessed against the land. The society could not by contract avoid the statutory requirement that the real estate standing in its name of record should be assessed against the record owner, although it might by special agreement render the lessee liable to it. 3 Cooley on Taxation, § 1261 (4th Ed.). Neither does it appear that any taxes have been assessed upon this land against the society, so that this provision of the lease to Legatt has not yet become effective. These grounds sufficiently dispose of the second defense. The third defense comprises the allegations of the second defense together with allegations that, if the defendant had assessed the society for this land, the plaintiff would have been under contractual obligation to repay the tax, and that plaintiff is not aggrieved by having this tax assessed against him directly. The discussion of the second defense has sufficiently answered these additional allegations. The plaintiff did not by his lease obligate himself to pay taxes assessed against the society, and, if it had, none had been as yet assessed against the society. The town can assess such taxes as the law authorizes; the contracts of private parties cannot vary the authorization of the law. No facts are alleged in the defense to indicate any right in the society, by assignment or subrogation, by which the society can legally claim a reimbursement of taxes assessed against it.

The parties thereafter stipulated as to the material facts involved, and the trial court, for the purposes of the appeal, finds the facts as thus stipulated. The First Ecclesiastical Society is the record owner in fee of the land which the board of relief of Branford on May 18 1926, set in the supplemental list of the...

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