Milligan v. Drury

Massachusetts Supreme Judicial Court

Milligan v. Drury

130 Mass. 428, 1881 Mass. LEXIS 123

CourtMassachusetts Supreme Judicial Court

DecidedFebruary 23, 1881

StatusPublished

Cited by16 cases

This text of 130 Mass. 428 (Milligan v. Drury) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Milligan v. Drury, 130 Mass. 428, 1881 Mass. LEXIS 123 (Mass. 1881).

Pincite

Opinion

Morton, J.

The lease to the plaintiff provides that he shall pay the rent stipulated therein, “ and all taxes and duties levied and to be levied thereon during the term.” It also provides that, “ upon the payment of rent and taxes aforementioned upon the said premises, said lessee shall have the privilege or right to remove any and all buildings erected by himself upon said premises at the expiration of the aforesaid lease.” Under these provisions, the plaintiff has no right to remove the buildings erected by him, and to treat them as personal property, except upon payment of all the rent and taxes due under the lease. In other words, the payment by him of the rent and taxes is a condition precedent to his right to sever the buildings and make them his personal property.

It appears by the statement of facts that the assessors of Boston in the years 1877 and 1878 assessed to the plaintiff, as the lessee and occupant, the land and buildings as real estate. The statute provides that “real estate, for the purposes >f taxation, shall include all lands within this State, and all buildings and other things erected on or affixed to the same.” Gen. Sts. c. 11, § 3. The assessors were not obliged to inquire into the private contracts between the parties, but had the right to do as they did, and assess together as real estate the land and the buildings affixed thereto. They having done so, it was the duty of the plaintiff under the lease to pay the taxes. The defendant was in no fault, and he had no remedy except to pay the taxes, or to protect himself by buying in the estate at the tax sale.

Upon the facts agreed, therefore, it appears that the plaintiff, having neglected and refused to pay the taxes, has failed to perform the condition upon which alone he was to have the right to remove the buildings erected by him upon the leased premises. The defendant’s refusal to permit the plaintiff to remove them was, therefore, not a conversion for which he can be held liable in this action.

Judgment for the defendant affirmed.

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Morton, J.

The lease to the plaintiff provides that he shall pay the rent stipulated therein, “ and all taxes and duties levied and to be levied thereon during the term.” It also provides that, “ upon the payment of rent and taxes aforementioned upon the said premises, said lessee shall have the privilege or right to remove any and all buildings erected by himself upon said premises at the expiration of the aforesaid lease.” Under these provisions, the plaintiff has no right to remove the buildings erected by him, and to treat them as personal property, except upon payment of all the rent and taxes due under the lease. In other words, the payment by him of the rent and taxes is a condition precedent to his right to sever the buildings and make them his personal property.

It appears by the statement of facts that the assessors of Boston in the years 1877 and 1878 assessed to the plaintiff, as the lessee and occupant, the land and buildings as real estate. The statute provides that “real estate, for the purposes >f taxation, shall include all lands within this State, and all buildings and other things erected on or affixed to the same.” Gen. Sts. c. 11, § 3. The assessors were not obliged to inquire into the private contracts between the parties, but had the right to do as they did, and assess together as real estate the land and the buildings affixed thereto. They having done so, it was the duty of the plaintiff under the lease to pay the taxes. The defendant was in no fault, and he had no remedy except to pay the taxes, or to protect himself by buying in the estate at the tax sale.

Upon the facts agreed, therefore, it appears that the plaintiff, having neglected and refused to pay the taxes, has failed to perform the condition upon which alone he was to have the right to remove the buildings erected by him upon the leased premises. The defendant’s refusal to permit the plaintiff to remove them was, therefore, not a conversion for which he can be held liable in this action.

Judgment for the defendant affirmed.

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Bluebook (online)

130 Mass. 428, 1881 Mass. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milligan-v-drury-mass-1881.

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