Stoneman v. City of Boston

• Decision Date: 02 April 1928
• Citation: 263 Mass. 255,160 N.E. 788
• Parties: STONEMAN v. CITY OF BOSTON (four cases.)
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

263 Mass. 255

160 N.E. 788

STONEMAN

v.CITY OF BOSTON (four cases.)

Supreme Judicial Court of Massachusetts, Suffolk.

April 2, 1928.

Report from Superior Court, Suffolk County; James H. Sisk, Judge.

Four actions by David Stoneman against the City of Boston. On report of all material facts, without decision, by the judge of the superior court. Judgment for defendant.

H. S. Davis and R. S. Wilkins, both of Boston, for plaintiff.

J. P. Lyons, Asst. Corp. Counsel, of Boston, for defendant.

PIERCE, J.

These are four cases which come before this court on a report of all the material facts, without decision, by a judge of the superior court in accordance with the provisions of G. L. c. 231, § 111. The four actions present the same issues, and they are to be treated as one case in the determination and application of the questions of law.

George Robert White, deceased, at the time of his death owned many parcels of real estate in the city of Boston, among which were the premises numbered 478 and 480 Boylston street, and the premises on said Boylston street numbered 482, 484, 486 and 488. By an indenture dated July 17, 1912, he demised to Benjamin Kabatznick and Simon Burman the premises numbered 482-488 Boylston street, for a term of fifteen years from August 1, 1912. Burman thereafter transferred his interest in the lease to Kabatznick. By an indenture dated March 11, 1920, White demised to Kabatznick for a term of ten years and three months from May 1, 1920, the premises numbered 478-480 Boylston street, at the same time extending the lease dated July 17, 1912, so that it should terminate August 1, 1930. These leases were eventually assigned to the plaintiff, David Stoneman, and he took possession thereunder on or about October 4, 1923, and has since paid the rent and been recognized as lessee.

The lessee covenanted in each indenture that he and his assigns ‘will from time to time pay all taxes, said taxes to be recoverable as if same were rent in arrears'; and it was agreed in the lease dated July 17, 1912, as also in the lease dated March 11, 1920, with necessary changes in point of detail:

‘That the taxes hereinafter provided to be paid by the lessees are to be paid by them in the following manner viz.: * * * With each monthly payment of rent, the lessees shall pay the lessor one-twelfth of the last previous tax bill paid by the lessor and on the 1st day of November, 1912, any difference either way between the sum of the payments due September 1, 1912, and October 1st, 1912, and one-sixth of the tax bill finally due on November 1, 1912, shall be adjusted between the lessor and the lessees; and on the 1st day of November in each year thereafter during the continuance of this lease any differences either way between the last six months previous monthly payments and one-half the tax bill finally due on that day shall then be adjusted between the lessor and the lessees.’

White died on or about January 27, 1922, leaving a will which was duly admitted to probate on March 29, 1922. The will provided in ‘Article Fourteenth’ that the rest and residue of his property of every nature should go to the city of Boston, ‘to be held as a permanent charitable trust fund * * * the net income only to be used for creating works of public utility and beauty, for the use and enjoyment of the inhabitants of the city of Boston.’ The will directs that the ‘control and management of said trust fund * * * shall be in the hands of a board of five trustees.’ In the record this board is referred to as the ‘Trustees of the George Robert White Fund.’

After the city of Boston had voted to accept the devises and bequests contained in the will, St. 1922, c. 390, was enacted and became law on May 9, 1922. This statute reads as follows:

‘Section 1. The lands and buildings owned by the city of Boston in fee, in trust or otherwise may, if leased for business purposes, be taxed by the assessors of taxes of said city and the taxes assessed to the lessees thereof or to their assigns in the same manner and to the same extent as if said lessees were the owners thereof in fee. Payment of the said taxes shall not be enforced by any lien upon or sale of the said lands and buildings, but the interests of said lessees or their assigns therein may be sold by the collector of taxes of said city for the nonpayment of the taxes assessed as aforesaid, in the manner provided by law for the sale of real estate for nonpayment of local taxes. Said collector of taxes may maintain against the persons assessed as aforesaid or their legal representatives actions in his own name for the taxes so assessed in the manner provided by law for the collection of other local taxes.

‘Section 2. This act shall take effect upon its passage but, for the purposes of taxation in the year nineteen hundred and twenty-two, the said lessees shall be subject to taxation as of April first nineteen hundred twenty-two.’

After the passage of St. 1922, c. 390, the assessors of the city of Boston assessed the lessees' and the assignee's interests in the above-described property each and every year until time of the bringing of these actions. For the year 1925 they assessed all the parcels ‘to David Stoneman et al., lessees.’ The tax bills for the years 1923, 1924 and 1925, which were made out in accordance with the assessments, were sent by the city collector to the trustees of the George Robert White fund by the direction of one George E. Phelan, who was employed by the trustees and has acted as manager of the entire property of the fund during the time of the matter in controversy between the plaintiff and defendant, with an office in the city hall, Boston. After the bills were received the trustees charged each month one-twelfth of the amount of the tax to the plaintiff, and included it in the rent bills which they sent monthly to the plaintiff. The plaintiff paid without objection some of the rent bills to which had been added one-twelfth of the taxes,...