CHARLES E. COTTING & others, trustees, v. COMMONWEALTH. SAME v. SAME.

KNOWLTON, C. J. These two cases, one at law and the other in equity, brought under the R. L. c. 201 and the acts in amendment thereof, were heard together to determine, as the principal question, whether the Commonwealth, either upon its preliminary contracts or upon covenants in its deeds, was bound to protect the plaintiffs from a liability for an assessment for a part of the cost of certain sewers on lands conveyed to them by the Commonwealth. [Note p525-1] The action at law is to recover the amount paid by the plaintiffs in discharge of an assessment upon land conveyed to them by a deed of the board of harbor and land commissioners, bearing date November 26, 1901. The deed was made in pursuance of a previous contract contained in a bond signed by the members of the board, dated January 10, 1899, to execute and deliver to the plaintiffs a "warranty deed or deeds" of a part of the Commonwealth Flats in South Boston. On January 17, 1899, a supplemental agreement was executed by the members of the board, with the approval of the Governor and Council, in which it was recited that the contract for the sale of the premises was "made with the expectation on their part that Fargo and E Streets will be forthwith constructed, paved, sewered and sidewalks laid without expense to the purchasers." It also contained the following language: "We agree

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to use our best efforts during our continuance as members of the board of harbor and land commissioners to have such work done at an early date, either by the city of Boston, by the Commonwealth, or otherwise, without expense to the purchasers." The deed above referred to contained general covenants "of seisin, against incumbrances, of right to convey and of warranty." It in terms granted "the right, as appurtenant to said premises and each and every part thereof, to use said streets and the sewers therein for all purposes for which public highways and sewers may be lawfully used." One of the streets referred to was E Street.

On November 29, 1899, the city of Boston ordered the construction of a main sewer in E Street, abutting on said premises, and on December 1, 1902, levied an assessment therefor, which the plaintiffs have been obliged to pay. The first question raised by the defendant is whether the Commonwealth was bound by the covenants in the deed.

The authority of the board of harbor and land commissioners relative to this subject was very broad. It is found in Pub. Sts. c. 19, § 3, in part in these words: "Said board may make contracts for the improvement, filling, sale, use, or other disposition of the lands at and near South Boston known as the Commonwealth Flats at South Boston. . . . All conveyances and contracts made under authority of this section shall be subject to the approval of the Governor and Council." This clearly includes a right to make conveyances. In making contracts for sale, the board plainly would have a right to make reasonable stipulations in regard to the cost of contemplated sewers assessable on the land, and, in a deed of conveyance, to insert reasonable covenants touching this subject. Similar contracts or covenants in similar cases have been approved by this court. Bronson v. Coffin, 118 Mass. 156. Boston Molasses Co. v. Commonwealth, 193 Mass. 387. Corcoran v. Boston, 185 Mass. 325. See also as to the general principle, Peters v. Farnsworth, 15 Vt. 155; Schultz v. Griffin, 121 N. Y. 294; Vanada v. Hopkins, 1 J. J. Marsh. 285, 293. We are of opinion that the covenants in the deed were authorized by the statute.

The next questions are whether the liability to assessment for a sewer, the construction of which had been ordered previously,

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is a breach of the covenant of freedom from incumbrances in a deed, and whether the failure to protect the grantee from an assessment afterwards made upon the land, to pay the cost of construction of such a sewer, is a breach of the covenant of warranty. It is plain under our decisions that, if the grantor had been an individual owner whose land was liable to assessment, such an assessment would be an incumbrance, even though the construction of the sewer and the assessment for it were not until afterward. Carr v. Dooley, 119 Mass. 294. See also Hutchins v. Moody, 30 Vt. 655; 34 Vt. 433; Peters v. Myers, 22 Wis. 602. We may assume that, under our decisions, no assessment could be enforced against the Commonwealth so long as it held the title. Corcoran v. Boston, 185 Mass. 325; 193 Mass. 586. Worcester County v. Worcester, 116 Mass. 193, 194. Boston v. Boston & Albany Railroad, 170 Mass. 95. But this would not invalidate an assessment made for construction completed after the title had passed to a private person. The condition when the plaintiffs took their deeds was that this land was subject to an assessment as soon as it came into the plaintiffs' hands, under an order for a sewer which had been passed previously. There was a liability which was sure to become absolute and enforceable against the land as soon as the work was completed and the expense ascertained. This was an incumbrance from which the plaintiffs were entitled to be protected under the covenant.

It is even more plain that, under the covenant of warranty, the Commonwealth is bound to relieve the plaintiffs from this charge upon their land. Hill v. Bacon, 110 Mass. 387.

We do not find it necessary to determine whether, under the St. 1892, c. 402, § 4, the same result would be reached in reference to the covenants against incumbrances. [Note p527-1] See Boston v. Boston & Albany Railroad, 170 Mass. 95, 102. This statute has been held unconstitutional in some of its provisions (see

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Weed v. Mayor & Aldermen of Boston, 172 Mass. 28), and there may be a question whether this section should be treated as separable from the others, and valid.

For the reasons above stated, the plaintiffs are entitled to an adjudication against the Commonwealth for the amount agreed upon in the statement of facts on file.

The suit in equity relates to an assessment under an order, made on December 16, 1901, for the construction of certain inlet or connecting sewers, which assessment was made on October 7, 1904. The plaintiffs rely upon the same deed and contracts as in the other case. This assessment is not within the covenants contained in the deed, because it is founded on an order for the construction of sewers, not made until after the deed was given. When the deed was delivered there was no order or proceeding that created a liability to an assessment for these inlet or connecting sewers, and there was therefore no incumbrance, and no lawful claim or demand on this account to which the covenant of warranty could apply.

The plaintiffs seek to support their claim under the bond for a deed and the supplemental writing. In the bond there is no express agreement covering an assessment for the construction of sewers. There is a recital that the obligees have "agreed to pay all lawful taxes and assessments, if any, levied on the premises, except those for laying out and paving streets and sidewalks and building sewers," etc. These, being left without any agreement, rest where the law puts them. The obligees cannot found a liability upon this absence of a stipulation.

The supplemental agreement does not go far enough to create an obligation. As to Fargo and E Streets, there was a statement of an expectation that they would be forthwith provided with sewers without expense to the purchasers. There was no undertaking in regard to it. There was also an agreement of the members of the board to use their best efforts to have the work done at an early day without expense to the purchasers. There was no contract to save the purchasers from this expense, and there is nothing to show that their agreement was not performed. Moreover, these provisions relate only to Fargo and E Streets, and not to the inlet and connecting sewers.

There is nothing in any of the papers that creates a liability

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on the part of the Commonwealth to pay the assessments referred to in the bill in equity.

Although no question of jurisdiction was raised by the pleadings, the Commonwealth, in its brief, contends that the R. L. c. 201, under which this bill is brought, is not broad enough to confer jurisdiction in equity to grant relief of the kind sought by these plaintiffs. [Note p529-1] As we hold that the case is not established on the merits, we do not find it necessary to consider this question. Adjudication for the plaintiffs in the first case; in the second case, bill dismissed.

The cases were submitted on briefs.

C. H. Tyler, O. D. Young & B. E. Eames, for plaintiffs.

D. Malone, Attorney General, & F. T. Field, Assistant Attorney General, for the Commonwealth.