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Keywords

defendantlease

plaintiffdefendantlease

Related Cases

Dunlap v. Bullard, 131 Mass. 161, 1881 WL 11261

Facts

The original lessors brought an action against the defendant for failing to pay taxes as stipulated in a lease from 1855. The original lessees transferred their interest to Shepherd Ostrom, who then leased the premises to Earl W. Johnson for the remainder of the original lease term but at an increased rent. Johnson subsequently assigned this lease to the defendant, who was in possession when the taxes were assessed.

The whole interest of the original lessees was transferred by successive assignments to Shepherd Ostrom, who, in 1868, leased the premises with the buildings erected since the date of the original lease to Earl W. Johnson, to hold for a term equal to the whole of the unexpired term of the original lease, but at an increased rent payable monthly.

Issue

Did the defendant, as assignee of Johnson, become bound to perform the covenant to pay taxes contained in the original lease?

The plaintiffs contend that privity of estate was created between them and the defendant, as assignee of Johnson, by which the defendant became bound in law to perform the covenant to pay taxes contained in the original lease.

Rule

A covenant to pay taxes runs with the land and binds those who acquire the whole estate of the covenantor. To constitute an assignment, the assignee must take the same estate in the whole or part of the leased premises as the assignor had.

A covenant to pay taxes is a covenant which runs with the land, and binds those who acquire by deed or assignment the whole estate of the covenantor in the whole or some part of the land.

Analysis

The court analyzed whether the lease from Ostrom to Johnson constituted an assignment or a sub-lease. It found that the lease contained new conditions and a right of entry for nonpayment, indicating that Ostrom did not intend to part with his whole interest. Therefore, the defendant held a different and inferior estate as a sub-lessee, not as an assignee of the original lease.

It is clear that the parties to this lease intended to create the relation of landlord and tenant between themselves. And it is the duty of the court to give effect to this intention, unless controlled by some positive rule of law.

Conclusion

The court concluded that the defendant was not liable for the taxes under the original lease, as the relationship created was that of a sub-lease.

Judgment for the defendant.

Who won?

Defendant; the court reasoned that the lease was a sub-lease, and thus the defendant was not bound by the original covenant to pay taxes.

The test to be applied is whether the lessee has parted with his whole interest in the leased premises.

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McCoy v. Arkansas Natural Gas Co., 175 La. 487, 143 So. 383, 85 A.L.R. 1147

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