We believe that our original opinion, filed April 25, 1947, should be adhered to. The point raised by defendant in his petition for rehearing was on that portion of the opinion and order contained in No. 2 thereof, relating to the payment of taxes for the year 1936 on the property in question. We still feel that defendant is liable for the 1936 taxes, and we believe that that portion of the original opinion still justifies our position in the matter.
It appears to us that there are three points for consideration in the matter involved in the petition for rehearing which have been determined in the original opinion: *Page 13
(1) Did a privity of estate continue as between plaintiffs and defendant until December 16, 1936, the date defendant and his wife reassigned the lease to the Marquette Holding Company?
(2) Having in mind the covenant contained in the lease, what was defendant's duty with respect to the payment of taxes during the period he was assignee, namely, between December 22, 1924, and December 16, 1936?
(3) At what time during 1936 were the taxes "levied, assessed or otherwise imposed upon said demised premises"?
In answer to the first question, it is our opinion that such privity of estate did exist as between plaintiffs and defendant until December 16, 1936, as is more fully explained in the original opinion.
With reference to the second question, the covenant in the lease under consideration reads in part as follows:
"The lessee further agrees that he will as additional rent,pay * * * all taxes and assessments * * * which shall duringsaid term be levied, assessed or otherwise imposed upon saiddemised premises * * *; it being understood that the first taxes to be paid by the lessee shall be the taxes levied and assessed for the year 1916, * * * and that the last taxes to be paid by the lessee shall be the taxes levied and assessed for the year 2016. The lessee agrees that he will pay such taxes,impositions and assessments before any fine, penalty, interestor costs under the laws from time to time in force may be addedthereto for the non-payment thereof." (Italics supplied.)
It seems to us that the first part of this covenant clearly indicates that defendant as assignee was obligated to pay, as additional rent, all taxes and assessments "which shall during said term be levied, assessed or otherwise imposed upon said demised premises." There can be no dispute that the term of the lease so far as defendant was concerned did not expire until December 16, 1936, the date he reassigned it to the Marquette Holding Company. True, the covenant also provided that the lessee would pay such taxes, impositions, and assessments "before any fine, penalty, interest or costs under the laws from time to time in force may be added thereto for the non-payment *Page 14 thereof." That portion of the covenant, in our opinion, designates only the limit of time as to the payment of the taxes, but the first part of the covenant definitely creates the obligation to pay, "as additional rent, * * * all taxes and assessments" levied or assessed during the term he was acting as assignee under the lease.
Now, in line with our conclusion that the term of defendant under the lease did not expire until December 16, 1936, the date he reassigned it, we go to the third question, and that is: When were the taxes levied, assessed, or otherwise imposed on the premises for which defendant would be liable during the term of the lease? This question seems to have been clearly settled in Merle-Smith v. Minnesota Iron Co. 195 Minn. 313,262 N.W. 865, when this court said that taxes on realty are assessed for the calendar year as of May 1, upon which date they attach as a lien or charge thereon, and various steps in the assessment and levy of taxes, whenever finished, relate back to and take effect as of May 1; "hence a lessee who covenants to pay all taxes assessed during the term of the lease is liable for the taxes assessed for the calendar year if the lease terminates on or after May 1 of that year." In the case at bar, we still conclude that the privity of estate, so far as defendant is concerned, did not terminate until December 16, 1936, the date he reassigned the same to the Marquette Holding Company. We further conclude, under the holding in the Merle-Smith case, that the taxes assessed on the real estate in question attached as a lien or charge thereon as of May 1, 1936, and that under the covenant in the lease in the case before us defendant, as assignee of the lessee, was obligated to pay all taxes levied, assessed, or otherwise imposed during the term of the lease, which term expired so far as he was concerned on December 16, 1936, the date he assigned the lease to the Marquette Holding Company. Defendant, as assignee, had the power to put an end to his liability for the 1936 taxes by assigning the lease prior to May 1 of that year and thus escape the obligation to pay the 1936 taxes. He did not reassign until December 16, 1936. So, in compliance with our original decision, we believe that he was liable for the 1936 taxes. *Page 15
Defendant's counsel earnestly argued that defendant could not have paid the taxes on December 16, 1936, but he so desired, since the various steps in connection with the compilation of the tax would not have been completed until after January 1, 1937. That may be true, but, as held in the Merle-Smith case,supra, the various steps in the assessment and levy of taxes, whenever finished, relate back to and take effect as of May 1. The mere fact that the county treasurer's tax record was not completed as of December 16, 1936, so as to make payment of the taxes by defendant possible on that date, would not appear to excuse defendant from the obligation to pay the 1936 taxes at such time as the county treasurer would be prepared to receive them, if the duty to pay the taxes arose as of the time the taxes were levied and assessed, i. e., May 1, 1936. The question is when the duty arose, not when it was to be discharged. We believe that the duty arose as of May 1, 1936, while defendant was still the assignee under the lease.
In Merrimac Mining Co. v. Gross, 216 Minn. 244, 252,12 N.W.2d 506, 511, this court said:
"* * * The liability was fixed at the time of the assessment of the tax, not at the time when the lands could have been sold for non-payment. The clause that the 'parties of the second part agree to pay all taxes * * * which may be assessed * * * during the continuance of this lease' created the obligation. The clause, 'Said taxes at all times to be paid before the lands are sold for their non-payment,' prescribed the time before which payment should be made but did not limit the liability to that time. Walker v. Stein, 222 App. Div. 22,225 N Y S. 209; Big Four Realty Corp. v. Belnord Garage,141 Misc. 472, 252 N.Y. S. 742. The fact that plaintiff did not pay the 1933 and 1934 taxes until 1936 does not affect the outcome. The obligations existed from the time the respective tax items were levied, and the right to contribution arose when they were paid."
Defendant cites as "squarely in point" here the principles set out by this court in Trask v. Graham, 47 Minn. 571,50 N.W. 917. There, Trask and Graham, plaintiff and defendant respectively, were originally joint lessees under a five-year lease dated May 5, 1885, with *Page 16 the St. Anthony Falls Water-Power Company, as lessor. Later, on February 2, 1889, Trask acquired, by assignment, the interest Graham had in the lease. Thus, the resulting action was one in which the assignee sued the assignor, and not, as here, a case where the lessor sued the assignee. It was decided in the Trask case that, as between the assignor and the assignee of a lease, the latter could not recover of the former the 1888 taxes, due January 1, 1889, and delinquent June 1, 1889, the assignment having been made February 2, 1889, after the 1888 taxes became due but before they became delinquent. In the instant case, the suit is by the lessor against the person in possession as assignee on the date the taxes were levied and assessed, but not yet delinquent. The important thing to note is that the Trask case did not hold that Graham, one of the original lessees, whose interest was assigned to Trask, was released from his obligation to the lessor. It held that where one lessee assigned his interest to another, then, as between the lessee Graham and Trask, his assignee, the latter assumed the liability for the rent and taxes that accrued and became due during his possession as assignee, and that he was liable only for obligations maturing or breaches occurring while he held the estate as assignee. In the instant case, the suit is by the lessor against the person in possession as assignee on the date the taxes were levied and assessed (May 1), but not delinquent. The distinction is significant because in the Trask case the court was endeavoring to ascertain the intent of the parties to the assignment. We are here concerned with the duty of an assignee to the lessor, which is imposed without regard to the intent of the parties.
In our opinion, Craig v. Summers, 47 Minn. 189, 49 N.W. 742,15 L.R.A. 236, is controlling. The fact that the lease terminated while the assignee in that case was still in possession does not seem material in the absence of a novation or agreement by the lessor to release the lessee from his contractual obligations. There, as here, the lessor had rights based on the covenants of the original lease as against the lessee. In this case, as in the Craig case, the lessors have rights as against the assignee raised by law because of the privity of *Page 17 estate. We can see no reason for empowering the lessor in the Craig case to hold the assignee responsible for taxes levied and assessed during the period of privity and denying lessors this protection in this case. In the case before us, the lessee had possession of the premises until December 16, 1936, including the rents for that year, and it would seem no more than fair that he should be responsible for the taxes "levied, assessed or otherwise imposed" for the year 1936, especially in view of the ruling in the Merle-Smith case, supra, that the various steps in the assessment and levy of the taxes on real estate, whenever finished, take effect as of May 1 of the year they are assessed and become a lien or charge against the real estate as of that date.