Williams v. Craig , 2 Edw. Ch. 297 ( 1834 )

The Vice-Chancellor:

It is not disputed in this case that the covenant of the defendant would extend to and cast upon him the burthen of an assessment for opening Union Place under the proceedings set forth in the bill, provided such an assessment had been imposed directly upon the lots of which he was the lessee. And it appears to be equally within his covenant to pay any assessment which might be made upon these lots in conjunction with other lots by one general assessment upon a larger tract which should include them (and a part of which general assessment must, by a necessary consequence, attach proportionably to each lot or parcel.) The words of the covenant'do not require the assessment to be made upon the defendant by name, either as owner or lessee, nor upon the lots as distinct and separate parcels of land. He is to pay all such taxes, rates, burthens and impositions as may be assessed, laid or imposed in respect to or by reason of the said premises or any part thereof; and the statements in the bill clearly show that an assessment for the opening of Union Place had been laid in respect to and upon the lots—they being, at the same time, parcel of a large number of lots taken collectively and assessed on account of their contiguity to the place opened as a public square. This assessment has been made upon the complainant as the owner in fee of the land lying within a certain range, benefitted by the improvement, and the boundaries and description of which were given so as to include the lots held by the defendant under lease : and although the defendant, as has been before said, is not named and his lots are not designated, yet it is certainly within his covenant to bear a proportion of the common burthen—what, in point of amount, it is or shall be, is not now the question.

The only difficulty, in getting at the amount, is in the admission of parol proof. If the report of the commissioners had specified the amount assessed upon these particular lots, it would have been, after confirmation, conclusive ; and the complainant would only have had to bring his action at law upon the covenant. He could not have entertained his bill, if his remedy at law stood so clear and perfect. But, as other evidence, in addition to the facts furnished by the report of the commissioners, will be necessary—not for the purpose of contradicting or varying the report (as far as it goes) but to ascertain the proportion which the defendant ought to pay and then to compel a contribution by the defendant in virtue of his covenant, I am inclined to think it is a case in which this court has, at least, a concurrent jurisdiction with courts of law. Contribution, in a variety of cases, forms a head of equitable jurisdiction; and it appears to me this is one in which it may be enforced to a certain extent.

• The complainant cannot set up any claim inconsistent with the report of the commissioners. No fraud, accident or mistake is alleged as a ground for setting aside the report or reforming it. It was the complainant’s own fault that he took no measures to procure the commissioners to distinguish in their report between the amount which they intended to assess or which they deemed chargeable upon the leased lots of the defendant as distinct from the other property; and it is no ground of relief now that he did not discover the error or omission in time to make objections to the report or that he was ignorant of the necessity of laying the lease before the commissioners. With ordinary diligence, he might have avoided all the difficulty which, out of this omission, he may now have to encounter. His own remissness and ignorance, when not the result of accident or mistake, misrepresentation or fraud, will not avail him: Penny v. Martin, 4. J. C. R. 566.

It appears to be well settled that no parol evidence can be received for the purpose of contradicting the report in respect to sums awarded or to“show that the commissioners intended differently from what they may have expressed: Turner v. Williams, 10. Wend. 139.; and I think it is extremely doubtful whether the complainant, in the present case, can be permitted to travel beyond the report and show, by extrinsic evidence, such as the arithmetical calculations of the commissioners and their marks upon the map, that twelve hundred and sixty five dollars would have been assessed upon the lots for benefit, if the commissioners had made the assessment in detail and not in the aggregate. The defendant may well say he is not to be charged with this specific sum: because he has had no opportunity of objecting to it—and also that if it had appeared in the report, he might, perhaps, have succeeded in showing the amount to have been exorbitant and out of proportion compared with assessments upon other lots—or that the value of property required for the improvement which this, with other assessments, was intended to compensate, was estimated too highly. There is, to my mind, great force in all this; and it shows, in as strong light—as in the case of Turner v. Williams—the impropriety of admitting parol evidence.

Without passing definitively upon the subject at present— the same argument does not hold good in respect to the three thousand nine hundred and forty four dollars which was actually assessed, as appears by the face of the report. The defendant, although not named as the lessee or owner, seeing, as he might have done, that the latter sum was assessed for benefit to property which included the lots leased to him, was at liberty to object as a party interested; and his objections, if any had been made, must have been attended to. It does not appear to me inconsistent with the report to hold the defendant liable to contribute to the payment of this sum ; nor subject to the same objection in relation to the admissibility of parol proof. It comes somewhat within the case of Astor v. Miller, 2. Paige’s C. R. 69. and, on appeal, 5. Wend. 603., where the court entertained jurisdiction for the purpose of adjusting the rights of parties in relation to sums awarded and assessed under a similar proceeding.

At all events, I think there is enough, upon the principle of enforcing contribution, to give this court jurisdiction and put the defendant upon answering the bill.

The demurrer must, therefore, be overruled with costs.