Sec. System Co. v. S.S. Pierce Co.

• Decision Date: 29 November 1926
• Citation: 258 Mass. 4,154 N.E. 190
• Parties: SECURITY SYSTEM CO. v. S. S. PIERCE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

258 Mass. 4

154 N.E. 190

SECURITY SYSTEM CO.

v.S. S. PIERCE CO.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 29, 1926.

Report from Superior Court, Bristol County; D. F. Dillon, Judge.

Action of contract by the Security System Company against the S. S. Pierce Company. Finding for defendant, and case was reported on statement of agreed facts. Judgment for defendant on finding.

A. E. Seagrave, of Fall River, for plaintiff.

C. F. Dutch, of Boston, for defendant.

CARROLL, J.

A lease of real estate provided for the erection of a building on the premises by the lessee, the building to be purchased by the lessor at the termination of the lease at an agreed price, the lessee covenanting to assume, pay and discharge ‘all assessments, charges, duties, cost of insurance and taxes which shall be assessed upon or payable for or in respect to said premises * * * in each and every year.’ The lease was assigned to the defendant, which agreed to keep and perform all the covenants of the lease and to save the assignors harmless therefrom. The owner of the premises assented to the assignment, and the defendant by a separate instrument covenanted to perform all the agreements in the lease to be performed by the lessee.

The defendant on September 14, 1925, did ‘remise, release, and forever quitclaim’ to the plaintiff, the owner of the premises, ‘all right, title and interest which the said S. S. Pierce Company has in and to’ the premises in question. The plaintiff thereupon took possession of the real estate. The taxes assessed as of April 1, 1925, became due in October of that year and were paid by the plaintiff. It has made demand on the defendant for reimbursement. The action is to recover the amount of the tax for the year 1925, with interest from October 28, 1925. It was agreed, that in the negotiations between the plaintiff and defendant the question of taxes was not discussed; that the taxes were not payable and could not have been paid until after the transfer from the defendant to the plaintiff.

[1][2][3] A covenant to pay taxes is a covenant running with the land. Mason v. Smith, 131 Mass. 510. The taxes assessed on April 1, 1925, were a lien upon the premises from that date. G. L. c. 59, § 21; Carr v Dooley, 119 Mass. 294;J. L. Hammett Co. v. Alfred Peats Co., 217 Mass. 520, 105 N. E. 370, L. R. A. 1915A, 334. The defendant by the quitclaim deed of September 14, 1925, gave to the plaintiff whatever title the defendant had to the real estate in question. It was a surrender to the plaintiff of all the defendant's rights under the lease, and the plaintiff took possession of the premises. Where there is a surrender of a lease, and an acceptance by the lessor, the lessee is not liable for rent becoming due and payable after the surrender. Deane v. Caldwell, 127 Mass. 248.Future liability under the covenants in the lease is concluded by the surrender. Johnson v. Stone, 215 Mass. 219, 221, 102 N. E. 366; Deane v. Caldwell, supra. In Paul v. Chickering, 117 Mass. 265, relied on by the plaintiff, there was no surrender of the lease. It was terminated in pursuance of a proviso in the indenture. In Richardson v. Gordon, 188 Mass. 279, the landlord entered under a stipulation in the lease, for nonpayment of rent and taxes. The term...