Quinby Co. v. Sheffield , 84 Conn. 177 ( 1911 )

At the time the February agreement was made the taxes for the year 1908, amounting to $769.66, were due from the defendants to the city of New Haven, and were a lien upon the land to which the agreement relates. On March 1st the Fields Company accepted a deed of the land from the defendants, drawn in strict accordance with the terms of the agreement, in which it was stated that the premises were subject to the taxes for the year 1908, which the grantee assumed and agreed to pay as a part consideration for the premises. The plaintiff as the grantee of the Fields Company has been compelled to pay the taxes to protect the property, and as assignee of the Fields Company brings this action to recover the amount so paid. The plaintiff's case, as stated in the complaint, is that the Fields Company at the time the land was conveyed paid to the defendants $660.82 upon the taxes, and that the defendants' tenant, Malley, paid to them the balance of the taxes, $108.84, and that it was agreed between the Fields Company and the defendants, in consideration of the amount so received, that the latter would pay the taxes so assessed upon the land. The court has found, and it was admitted by the plaintiff at the opening of the trial, that there was no express promise by the defendants to pay the taxes. To recover, therefore, the plaintiff was bound to prove a state of facts from which such alleged promise is implied as matter of law.

The Fields Company in the agreement expressly covenanted to assume and settle the taxes, and its acceptance of the deed containing the statement that it assumed the taxes as part of the consideration for the premises was equivalent to a covenant on its part over its own signature, when the transaction was closed, to assume and settle them. Foster v. Atwater, 42 Conn. 244,254; Woodruff v. Baldwin, 72 Conn. 439, 442,44 A. 748. It is claimed that these covenants were performed by the payment to the defendants of the amount of the taxes at the time the deed was given, and that the law thereupon raised a promise on the part of the defendants to the Fields Company to pay the taxes to the taxing authority. When the deed was delivered on March 1st, and as of that date, there was, pursuant to the agreement, an adjustment of the rents in accordance with the memorandum of adjustment which appears in the statement of the case. Under each of the leases the rent to be paid was a fixed sum and taxes. Malley, prior to March 1st, paid his full year's rent to May 1st, $108.84 of which was the amount of taxes assessed upon the land leased by him. In the adjustment the Fields Company paid no part of the Malley rent, but received from the defendants, as rent not yet accrued under his lease, $30. The other two tenants had paid no part of their rent, and the Fields Company in the adjustment paid the amount thereof which had accrued up to March 1st under their leases, in which was included $660.82 as the amount of the taxes upon the land occupied by those tenants. The defendants at this time gave the Fields Company a written notice to these two tenants of the transfer of the property, and that in the future they should account to the Fields Company for all amounts then due or thereafter to become due under the leases. The payments thus made by the Fields Company in adjustment of the rents, and by Malley in paying his rent, are the only payment of the taxes made or claimed to have been made to the defendants.

The majority of the court hold that under the written instruments before us the Fields Company was under two covenants, one to pay the rent, and one to assume the taxes; that the taxes were a part of the rent which was covenanted to be assumed; that having paid the rent the Company must be held to have paid the taxes; and that such payment was a performance of the other covenant, because the instruments in question do not show an intention on the part of the parties that the Fields Company should pay the taxes twice.

This conclusion rests upon the general proposition that one under covenant to pay rent, of which taxes are a part, must be held, in the payment of such rent, to perform a further covenant to pay the taxes, unless it clearly appears to have been the intention of the parties that the same taxes should be paid twice, once as rent, and again as taxes covenanted to be paid. Passing the general proposition, I concur in the conclusion that the instruments in question do not show an intention on the part of the parties that the Fields Company should pay the taxes twice. I dissent from the conclusion that those instruments contain a covenant by the Fields Company to pay rent of which taxes are a part, and also from the conclusion that the payment in fact made by that Company was a payment of the taxes to the defendants, or was in any way a performance by it of the covenant, contained in the agreement made before the payment and renewed by the acceptance of the deed after the payment, to assume and settle the taxes.

In determining the effect of those instruments they are to be interpreted in view of the situation of the parties and the circumstances connected with the transaction, and every part of the writings is to be considered in the light of the object which the parties had in view in using the language employed. Shaw v.Pope, 80 Conn. 206, 209, 67 A. 495; Weinberg v.Valente, 79 Conn. 247, 249, 64 A. 337. The defendants were the owners of a reversion in the property in question, expectant upon the termination of leases, the terms of which were to expire on the first of May following the agreement. The rent reserved in the leases was payable annually at the end of the year, so that for the year then to expire it was payable on May 1st, 1909. It amounted to $2,193.66, more than three fourths of which had accrued at the date of the agreement. The land was subject to the taxes for 1908. The Fields Company, desiring to purchase the property, had made an offer for it. It was familiar with the facts just recited and with the contents of the leases. The grant of the reversion to the Fields Company under these circumstances would pass to it as incident to the reversion the rents reserved in the leases. King v.Housatonic R. Co., 45 Conn. 226, 233. But if the rents should be paid in advance and before the grant, they would be severed from the reversion, and the grantee would not take them. Farley v. Thompson,15 Mass. 18, 25; Stone v. Patterson, 19 Pick. (Mass.) 476, 477. Both parties knew this, for it was the law which they are presumed to know. The agreement was signed under these circumstances. It appears therein that only the reversion was to be granted, and that it was to be subject to the taxes, which were to be assumed as part of the consideration. The "premises" to be conveyed were not the land unincumbered, therefore, but the reversion, expectant upon the termination of the leases, subject to a tax lien. It was this for which the defendants were to receive $70,050 net. There was also in the agreement a provision relating to an adjustment of rents. What object had the parties in view in making this provision? Clearly it was not the intention that either of the parties should pay the rents. It was expected and understood that the tenants would pay these. The provision related to what should be done in case the tenants should, as Malley did, pay the rents to the defendants before they became due and before the transfer of the reversion, and also in case the tenants did not pay the rents in advance of the transfer. In the latter case it was, of course, intended and expected that the tenants would pay the rents as they had covenanted to do, but to the Fields Company, as the law would require them to do. The purpose of the provision, therefore, was not to provide for a payment of the rent which was reserved in the leases. The stated purpose is an adjustment of the rents. But "rent" is a word of various meanings. It is defined by Blackstone and others to be a certain profit issuing out of lands in return for their use. Technically it means that which the tenant renders to the landlord out of the land. Generally, as between landlord and tenant, it is referred to as that which is paid by the latter to the former for the use of the land. But rent as an incident of the reversion is a right, an incorporeal hereditament. It is a right to the profits of the land as distinguished from the profits themselves. It was this right with reference to which the parties were dealing. The rents referred to were those incident to the reversions, expectant upon the termination of the three leases. The defendants in their letter of February 4th, indicating that they were prepared to receive a proposition for the purchase of the property, stated, as one of the conditions, that there must be an adjustment of the rents as of the date of the transfer. They were unwilling, for the consideration proposed, to allow the grant of the reversion to carry to the grantee the right to receive from the tenants nearly $2,000 of the accrued earnings of the property. Presumably the Fields Company, if the rents should be paid in full to the defendants, would be unwilling to accept a grant of the reversion which would permit the defendants to retain the amount representing the unaccrued portion of the rents so paid. An equitable adjustment between the parties would in either case be called for, because without it the grant would lead to results which would be unsatisfactory to the parties. It would be equitable in the former case for the purchaser to advance to the vendors the amount of the rents accrued, but not payable at the date of the transfer, and in the latter case for the vendors to remit to the purchaser the amount of the unaccrued rents which they had received. This was what the parties agreed to do, and afterward did. But such payment by the Fields Company was not a payment of rent. The rent was still unpaid and undischarged. The tenants were still to pay that. And there is nothing in the case to show that they have not fully paid it to either the Fields Company or its assignee, the plaintiff. The Fields Company by their payment did not pay the rents, but thereby purchased them or the right to receive them; for we may presume that without the adjustment they could not have secured the grant of the reversion.

Whether under the leases the taxes were a part of the rent is of no consequence, since the agreement shows that the payments made by the Fields Company were not, and were not intended to be, a payment of the rents reserved in the leases. The payment of the taxes as a part of these rents was the only payment claimed by the plaintiff to have been proved as the foundation for the defendants' implied promise to pay the taxes. The first and third conclusions of the Superior Court were correct and sustained its judgment for the defendants.