Welch v. Phillips

• Decision Date: 19 May 1916
• Parties: WELCH et al. v. PHILLIPS et al. HAMMOND et al. v. SPILLER. ; HAMMOND v. McCANDLISH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 267

112 N.E. 651

WELCH et al.

v.PHILLIPS et al.

HAMMOND et al.

v.SPILLER.

; HAMMOND

v.McCANDLISH.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1916.

Report from Superior Court, Suffolk County; Joseph F. Quinn, Judge.

Actions by Francis C. Welch and others, trustees, against Martha B. Phillips and others, trustees, and by Samuel Hammond and others, trustees, against Joseph B. Spiller and against John McCandlish. There was a verdict for plaintiffs, and the causes were reported. Judgment rendered on verdict.Tyler, Corneau & Eames and Roger F. Hooper, all of Boston, for plaintiffs.

G. W. Anderson, of Boston, for defendants.

DE COURCY, J.

The predecessors in title of the respective parties to these actions, executed a lease of a building in Boston for a term of 20 years from May 1, 1893. The covenant therein relied upon is as follows:

‘And the said parties of the second part for themselves and their representatives hereby jointly and severally covenant with the said parties of the first part, their representatives and assigns, that they will during said term * * * pay unto the said lessors, their heirs and assigns, * * * all the taxes and water taxes and assessments whatsoever, except betterments, whether in the nature of taxes now in being or not which may be assessed upon or payable for or in respect of the said premises or any part thereof during the said term.’

The taxes sued for were lawfully assessed upon the demised premises by the city of Boston as of April 1, 1913. They were paid to the collector by the plaintiffs, after the defendants had refused to make payment of the amount.

Assuming, as the defendants contend, that the lease began on May 1, 1893, and terminated April 30, 1913, and that they would not be liable for a tax assessed May 1, 1913, nevertheless, by the express terms of the covenant they are liable for the tax assessed upon and payable in respect of the premises April 1st. That assessment created a lien upon the premises substantially a month before the expiration of their term, which could be discharged only by payment of the tax, even though its actual payment was not due until after the termination of the lease. Wilkinson v. Libbey, 1 Allen, 375;Richardson v. Gordon, 188 Mass. 279, 74 N. E. 344.

There is no ambiguity about this covenant, to open the door for parol evidence. There are shown no circumstances or conditions existing at the time of the execution of the lease to indicate that the parties intended anything different from what their language clearly expressed. The real basis of the defendants' complaint is St. 1909, c. 440, which took effect many years after the execution of the lease, and...