Massachusetts Reports (Volume 185 (1904)); Cases Argued and Determined in the Supreme Judicial Court of Massachusetts (Paperback)

This historic book may have numerous typos, missing text or index. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. 1904. Not illustrated. Excerpt: ... Howard v. Fanshawe, 1895] 2 Ch. 581, 589. The Massachusetts cases are Atkins v. Chilson, 11 Met. 112; Sanborn v. Woodman, 5 Cush. 36. See also in this connection Stone v. Ellis, 9 Cush. 95; Hancock v. Carlton, 6 Gray, 39, explained in Mactier v. Osborn, 146 Mass. 399, 402. But that does not cover the case before us. In this case the defendant entered for breach of the covenant to pa)' taxes as well as for breach of the covenant to pay rent. When he exercised his right of re-entry in September, 1902, not only was the tax for 1900 not paid, but the estate of the defendant had been sold because of the plaintiff's failure to pay this tax as he had covenanted to do. The defendant's estate had been sold to pay this tax in the June preceding the September when the defendant entered on the estate. The thing here in question secured by the right of re-entry not only has not been performed, but it cannot be performed now. The tax for 1900 has been paid and no longer can be paid by the plaintiff. The tax was paid to the collector by the application thereto of the proceeds of the tax sale. There is a right to redeem this tax title, but the tax has been paid, and the thing secured by the landlord's right of reentry can no longer be performed by the tenant. By the very terms of the covenant secured by the forfeiture, any performance of it is at an end, and that is the end of the plaintiff's application for relief from the forfeiture in the case at bar. Moreover if it were permissible to look behind the terms of the covenant here in question to what might be termed its true nature and substance the plaintiff would gain nothing. If you look beyond its terms, the real substance and nature of a covenant to pay taxes assessed on the demised premises is to protect and hold harmles...