I agree with Judge GRAY that the question of the constitutionality of the law of 1846 (Chap. 327), which provides that the rents of leases for a term exceeding twenty-one years shall be assessed to the person or persons entitled to receive the same as personal estate, is not presented by the terms of this submitted controversy, construing the same strictly.
While I do not agree with the judgment about to be rendered by the court in favor of the constitutionality of the law of 1846, I refrain from discussing the reasons upon which I rest my dissent, as I am of opinion that if the law is held valid, *Page 32 the defendant company is nevertheless liable upon a proper construction of the covenant in the lease.
The defendant company covenanted to pay to the appellants certain rent, "and also to pay all taxes, charges and assessments, ordinary and extraordinary, which shall be taxed, charged, imposed or assessed on the hereby demised premises and privileges or any part thereof or on the said parties of thefirst part, their heirs and assigns in respect thereof."
It will be observed that this covenant is dual in character: (1) It covers all taxes upon the premises, ordinary and extraordinary; and (2) it covers all taxes imposed on the lessors in respect thereof.
This comprehensive covenant has long been employed by English conveyancers and is intended to cover every form of taxation to which the landlord may be subject by reason of his ownership of the land or receiving the rents thereof.
In the view I entertain of this covenant it is of no importance whether the taxation of rents be construed as a tax on land or under the act of 1846 a tax on personal property. The tenant has clearly assumed the payment of taxes on the land and also the taxes imposed on the landlord in respect of the same.
If this construction is not the proper one, no force or effect is given to the words in the latter part of the covenant assuming taxes imposed upon the landlord in respect to the premises.
I vote for reversal on the ground that the defendant company is bound by this covenant to pay the taxes imposed on the rents as personal property under the law of 1846.
PARKER, Ch. J., O'BRIEN, HAIGHT, MARTIN and VANN, JJ., concur with GRAY, J.; BARTLETT, J., reads dissenting opinion.
Judgment affirmed. *Page 33