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rent of 791. 12s. 6d., which the lessee covenanted to pay “ without any deduction whatsoever, except for taxes, charges, rates, and assessments, charged, or to be charged upon, for, or in respect of the said piece or parcel of ground, and paid by the said L. P., or his assigns ;” and then the lessee covenanted that he would not without the previous consent, in writing, of the defendant, erect, or suffer to be erected, any messuage or tenement, or other buildings, upon the demised premises.
The defendant's covenant as to taxes, upon which the action was brought, was as follows :“And also that he the said W. Home, his executors, administrators and assigns, shall and will bear, pay and discharge, as well the land tax, as all other taxes, charges, rates, assessments, and impositions, parliamentary, parochial, or otherwise, already charged, or to be charged, upon, or in respect of the said demised piece or parcel of ground, or any part thereof, during the continuance of the said term hereby granted, or any renewed term or terms to be granted, or upon the said L. P., his executors, administrators, or assigns, in respect thereof.
On the said 9th March, 1819, the defendant, at the time of executing the lease, signed a licence or consent for the plaintiff to build on the demised ground, as follows :-“I consent that Mr. L. P., shall be at liberty to build upon the piece of ground demised to him by indenture, dated 9th March, 1819, to the extent of, and consistently with the specification and plan hereunto annexed. W. Home; and afterwards fourteen messuages were built thereon accordingly, at an expense of upwards of 2,5001., and to each of those messuages is attached a garden, being respectively part of the demised ground : the whole of the houses let at rents, amounting together, to 5841., but subject to risk of tenant's taxes, repairs, and all outgoings, which are paid by the plaintiff.
In the year 1819, the lease was duly assigned to the plaintiff.
The plaintiff claims in respect of the following parochial rates, which he paid in the manner after stated. From Christmas 1821, to Michaelmas 1824, 1521. 15s. 6d., for 24 years, viz., the poor and church rates, the paving and watch rates, and the sewers' rate.
By the local acts of 22 Geo. 2, c. 50, s. 23, and 42 Geo. 3, c. 13, s. 22, the watch and paving rates are charged upon the occupier of any messuage, &c. By the local act of 53 Geo. 3, c. 112, s. 45, the poor and church rates are also charged upon the inhabitants and occupiers ; but by s. 54 of the last act, the trustees under that act, and the trustees under the before mentioned paving act, are empowered jointly to compound for all the above rates with landlords, where the premises shall not exceed 181. per annum, or where the houses are let in lodgings. The sewers' rate is assessed by the 54 Geo. 3, c. 219, ss. 7,8, and is directed to be charged upon the occupier, and allowed by the landlord.
Immediately after the fourteen houses were completed, and the gardens fenced in, Prendergast the lessee, and afterwards the plaintiff as his assignee, under the 53 Geo. 3, c. 112, s. 54, entered into a composition for payment of the poor and other parochial rates and assessments on the houses and gardens; and the same were compounded for at an average of 121. for each, making an aggregate sum for the whole, of 1681. per annum. The plaintiff proved that he had paid the taxes and rates, in respect of the houses and gardens, from Christmas 1821, to Michaelmas 1824, amounting to 1521. 15s. 6d., being for 24 years upon the said sum of 1681. so compounded for; and he seeks to recover the proportion of the said sum of 1521. 15s. 6d., to be calculated upon the sum of 791. 12s. 6d., the rent reserved by the lease, thus, “ As 1681. is to bear 1521. 15s, 6d., so 791. 12s.6d, is to bear 721. 7s." It was proved that the defendant, before the lease to Prendergast, had been rated for the whole of the land, about fifteen acres, of which the land in question formed part, and three mes
suages standing thereon, at 2001. per annum; and that after the defendant had let off the land in question, the assessment on him had been reduced to 1801. per annum, in consequence of his having so underlet the land; but it being also proved that land unbuilt upon was generally rated at 5l. per annum per acre, which for the land in question, admitted to be li acre, would be only 5l. 12s. 6d., the learned Judge directed a verdict for 5l. 1s. 6d. only, being the proportion of the said rent of 51. 12s. 6d. : thus, “ As 1681. is to bear 1521. 15s.6d., so 51. 12s.6d. is to bear 51. ls. 6d.” Should the Court be of opinion that the plaintiff ought to be allowed to increase the verdict only to the rates on the 201. allowed to the defendant, in consequence of his underletting the land, the verdict would then be for 181. 3s. : thus, “ As 1681. is to bear 1521. 15s. 6d., so 201. is to bear 181. 3s."
Chitty, for the plaintiff. The erection of the buildings was clearly contemplated at the time when the lease was executed ; for the licence to build was dated on the very same day with the lease. One of the covenants in the lease is, that the lessor shall pay the land tax and all other taxes already charged, or to be charged, upon, or in respect of, the land demised ; and the question for the decision of the Court depends entirely upon the construction of that covenant. Now, the covenant is expressly to pay all future taxes, which must include all taxes calculated upon the improved rent; and then the plaintiff is entitled to claim against the defendant the full sum of 1521. 15s. 6d., being the amount of taxes calculated upon the improved rent of the premises. As the lease and the licence to build are dated on the same day, they must be looked at together; and the covenant must be construed with reference to the licence to build : that is, as a covenant to pay all future taxes calculated upon the improved value produced by the erection of the buildings. It is clear that the land itself is more valuable now it is built upon
it was before, and the increase in the amount of the assessment is not produced by the estimated value of the houses alone, added to the former value of the land, but is partly made up of the increased value of the scite, by its being so built upon. It is expressly found by the case, that the custom in the parish' is, to assess land not built upon at 51. per acre, and that the composition for the land and houses thereon in question, is an aggregate sum of 1681. But the land is lacre only, the assessment upon which, if there were no houses, would be 51. 12s. 6d. ; so that it would appear that the larger sum of 1621. 7s. 6d., is assessed for the buildings at something more than 11l. 9s. upon each house, independently of the land and garden upon which it stands. It must be obvious, however, that in making up the whole assessment, it cannot be intended that the buildings shall bear 1621. 7s. 6d., and the land 5l. 12s. 6d. only, the sum which it must have paid had not a single brick been laid upon it. The Court, then, have to fix the amount which shall be taken as the charge upon the land, in its new character of land built upon, which it is obvious from the statement in the case pays more in this parish than land not built upon. The difficulty is in fixing the amount, but there seems no good reason why this should not be the larger sum claimed, as the defendant has covenanted to pay all rates and assessments, to be charged in respect of the land ; and the larger sum appears to be a reasonable proportion of the assessment upon the whole premises, which the land in its improved state ought to pay. The case of Hyde v. Hill (a), does not apply to the present, because in that case there was no express covenant by the lessor to pay, but the question turned upon the construction of the lessee's covenant, and the exception therein of the words “ except the land tax," which the Court considered as merely subjecting the lessor to pay the then land tax, and not a larger land tax subsequently imposed
(a) 3 T. R. 377.
in consequence of the tenant's improvements. The case of Graham v. Wade (a), also turned on the particular terms of the deed. Here, however, the landlord expressly covenants to pay all rates, &c., then charged or thereafter to be charged, evidently contemplating the probability of a larger assessment at a future period, which the defendant covenanted to discharge: he is, therefore, liable to pay the larger sum.
Curwood, contrà. This is entirely a question of construction, and in construing that which the parties have put into writing, it is necessary to take into consideration what was, according to reason and probability, their intention at the time. Trying this case by that test, the landlord must be taken to have intended to covenant to pay all rates, &c., on the land, then charged or thereafter to be charged, according to the assessment of the land in its then state, and not according to its assessment in some future and greatly improved state. There are authorities for this mode of construction. In Yaw v. Leman (6), it was held, that a landlord who covenants to pay the land tax, and save the tenant harmless, will discharge his covenant if he pay the tax according to the rent he receives, although the premises may be taxed at a higher rate. The act of granting a licence to build upon the land cannot operate to bind the landlord to the payment of rates beyond the value of the premises at the time when such licence was granted. The case of Hyde v. Hill (c) is decisive of the present in favour of the defendant; for it was there held, that under a covenant in a building lease by the tenant to pay all the taxes, except the land tax, the landlord was liable to pay the old land tax only, and not the additional land tax occasioned by the improvement of the estate. It is said, that case does not apply, because
(a) 16 East, 29.
(6) 1 Wils. 21, 2 Stra. 1191, S. C. And see Watson v. Atkins,
3 Barn. & Ald. 647; Whitfield v. Broadwood, 2 Stark. N. P.C. 440.
(c) 3 T.R. 377.