Miller v. Eheinzweig

HAIGHT, J.

(dissenting). This action was brought to foreclose a land contract. The defendants claim credit for the sum of ..$1,506.40 paid to the city of Buffalo; being the amount of taxes assessed against the premises contracted for, for the paving of Walden avenue. These taxes were duly levied and assessed on *473the 16th day of August, 1886, and then became a lien and an incumbrance thereon. Under the. provisions of the charter then in force, the tax could have been paid in five equal annual installments; but, upon the failure for two months to pay any installment, the whole assessment became due, by operation of law, and thereafter drew interest at the rate of 1 per cent, a month. The owner of the land had failed to pay the first installment, so that when the contract was executed the whole assessment in question was overdue, and payable, and the land was liable to be sold therefor. The contract for the sale of the land was made on the 5th day of January, 1887, and the only question to be determined is as to whether this tax is to be paid by the vendor, or the vendees.

The contract, after giving the names of the parties—

“Witnessetli, that said party of the first part has agreed to sell, and does hereby agree to sell, unto said parties of the second part, their heirs and assigns, all that certain.piece or parcel of land [particularly describing the same], for the sum of $21,250, which said parties of the second part hereby agree to pay as follows: Not less than $1,000 on or before the 10th day of January, 1887, and the balance in such weekly sums as shall be derived by said second parties from the sale of lots or parcels of said premises. Said second parties hereby agree to use their best endeavors to sell lots and parcels of said premises, and all sums received by them from such sales, over and above necessary running expenses, shall be paid weekly to the credit of said first party hereto, and said second parties hereby guaranty that such payments shall not be less than $300 every three months. Of the quarterly payments specified in this contract, at least 75 per cent, shall be applied on the incumbrances now resting on said premises until the same are fully paid, and the treasurer of the purchasers is hereby authorized to pay said 75 per cent, upon such incumbrances whenever said 75 per cent, shall amount to the sum of $300 and upwards.”

It appears that at the time of the executing of this contract' the premises were incumbered by two mortgages,—one for $12,000, and the other for $5,000,-—and the Walden avenue paving tax ($1,506.40). We thus have the covenant on the part of the vendor to sell for $21,250. We have a covenant on the part of the vendees to purchase the premises, and pay therefor that sum, and no covenant or agreement on their .part appears in the contract to pay any other or greater sum. It appears that the defendants purchased the premises for the purpose of again selling them in small parcels -or building lots, and that the payment of the purchase price was to be made out of the sales so made by the defendants; they guarantying, however, that the payments should not be less than $300 per quarter. But it is provided that 75 per cent, of such payments ■shall be applied upon the incumbrances resting upon the premises, and that such payments shall be made by the defendants’ treasurer. The word “incumbrances” is used, and that word, as ordinarily understood, includes the taxes as well as the mortgages that were at that time a lien on the premises." Again, the contract provides: “Said parties of the second part also agree to pay all taxes and •assessments which shall be laid or assessed on said premises after the date hereof.” Here we have an express provision that, as to the taxes thereafter to be levied or assessed, they are to be paid by the defendants, but nothing in reference to the taxes then a lien, thus leaving the inference that it was not intended to include *474the taxes theretofore levied. Again, it is provided: “Said party of the first part hereby guaranties that all taxes and assessments heretofore levied or assessed are fully paid, except the paving tax on Walden avenue.” This clause was doubtless inserted for the protection of the defendants. They are apprised of it by the existence of the Walden avenue tax, and the vendor guaranties that all the other taxes are fully paid. So far, the provisions of the contract seem to be in harmony; and under the well-settled rules of construction, giving to words their ordinary meaning, it would seem to be the intention of the parties to have the Walden avenue tax paid out of the proceeds of the sales of lots, as one of the incumbrances existing upon the premises.

We now approach the consideration of the troublesome provision. It is provided that whenever $5,000 should be paid upon the contract the defendants, at their option, were entitled to have a deed given to them of the premises not theretofore conveyed, and that they should give back a mortgage for the amount of the purchase price unpaid, which mortgage “shall contain the same covenants and conditions as are contained in this contract,” and then “said party of the first part, upon receiving payment at the time and in the manner above mentioned, shall, at Ms own proper cost, execute and deliver to said second parties, or to their assigns, a warranty deed of said premises, for the portion thereof not theretofore deeded, at the request of said second parties, free and clear-of all liens and incumbrances, except taxes and assessments levied or assessed thereon after this date, or incumbrances placed thereon by said second parties, except the said paving tax on Walden avenue.” Under this provision the argument is made that a warranty deed, free and clear of all liens and incumbrances, was to-be given, except the aforesaid paving tax on Walden avenue, from which the inference is drawn that it was the understanding that that tax was to be assumed and paid by the defendants. But such is not the reading of the provision. A warranty deed, free and clear of all liens and incumbrances, is to be given, “except taxes and assessments levied or assessed thereon after this date, or incumbrances placed thereon by said second parties, except the afore: said paving tax on Walden avenue.” Here we have two exceptions. Was it intended that both of the exceptions should be to the covenant contracted to be contained in the deed? If so,, they should have been connected with the copulative conjunction “and.” But the clauses are not .so connected. Grammatically construed, the latter exception would be to the exception that precedes it. But the court hás the power to supply words and phrases, if necessary, to give effect to the intention of the parties. Should the necessary word be supplied in this case, so as to make both exceptions relate to the covenant? This intention must be determined from all of the provisions of the contract. As we have seen, upon the payment of $5,000 of the purchase price, the defendants, at their option, were entitled to demand a deed. True, there is a provision that the deed should be a warranty deed, free and clear of all liens; and yet, evidently, it was not the intention *475of the parties that all the liens should then be discharged, for the-payment of $5,000 of the purchase price would not discharge the-mortgages. The premises would still be incumbered for a large sum, and it evidently was not intended that the vendor should pay and discharge these mortgages in order to execute a deed. As we have seen, under the provisions of the contract, the incumbrances were to be paid by the treasurer of the defendants, and for that purpose he was authorized to take 75 per cent, of the proceeds-of the sales, and to devote it to that,purpose, and after the payment of the $5,000, part of the purchase money, and the delivery of the-deed provided for, the purchasers were to give back a mortgage upon the premises, which mortgage “shall contain the same covenants and conditions as are contained in this contract;” in other words, providing that 75 per cent, of the money to be paid upon the mortgage shall be devoted to the payment of the incumbrancesupon the premises. We think, therefore, that the contract was properly construed by the trial court, and that that court properly disposed of the other questions raised in the case. The judgment should be affirmed, with costs.