I concur in the result for the reasoning given in the opinion of Mr. Justice Larson. The action should not, perhaps, have been one to quiet title but an action to compel *Page 325 the county to restore title to the plaintiff on tender of the taxes due plus penalties and interest in case the county refused. In such action the Joneses would have been joined because they bought from the county and the county, on receipt of the money from plaintiff, would have had to reimburse them. In order to prevent triangularity of action the whole matter could then have been adjusted in one action.
Also, in this action to quiet title the lower court made payment of the improvements a condition for possession. Again I call attention, as I did in the case of Peterson v. WeberCounty, 99 Utah 281, at page 291, 103 P.2d 652; that this is irregular because Section 78-6-2, the occupying claimants' statute, contemplates a separate action. But since no objection was made on this score, as one who favors expedition in procedure, I think the judgment should not be, for that reason, disturbed.
There is a statement in the opinion reading as follows:
"If as a matter of fact they [L.H. Jones and wife] have remained in actual possession of the premises all the time, then Robert Jones never acquired possession of the property and plaintiff never lost possession. Robert Jones could not by entering upon the premises then in possession of a tenant of the plaintiff, acquire any possession of those premises. This was decided by our recent case of Woodbury v. Bunker, 98 Utah 216,98 P.2d 948."
I am assuming that such statement is to be confined to the facts of this case or any case where one seeks to obtain possession adversely to another through the device of adopting the other's tenant as his tenant, or where the tenant without surrendering or repudiating the landlordship of the first, agrees to become the tenant of the second. Such was the case where Bunker, in Woodbury v. Bunker, supra, unsuccessfully sought to defend and avoid the effect of the statute of forcible entry and detainer by showing that Steele, a tenant of Woodbury, had recognized him, Bunker, as landlord, without having repudiated to Woodbury his tenancy to the latter. *Page 326
If the statement in the opinion means to hold that an adverse possession cannot be obtained against one who has leased his premises, not through a shift in the tenantship without repudiation, but in spite of the tenant, by entry on the premises, I am not prepared to acquiesce. And certainly a grantee of one who has leased his premises may obtain possession as against his grantor even though he do not enter and even though the tenant do not attorn. Otherwise we would be driven back to some symbol such as feoffment, to obtain possession. While anciently the lord could not alien his land without consent of the tenant, nor the tenant assign without consent of his lord, in modern days A, who has a tenant, may grant to B and give B possession without feoffment or attornment. Modern attornment by the tenant means that A's tenant now recognizes B, the grantee, as his landlord. True it is that the tenant cannot become the tenant of another than his landlord except by first surrendering the premises to the person under whom he holds. And his supposed recognition of another as his landlord or holding under another as tenant without such surrender, cannot give such other possession adverse to the landlord. That is the extent of the holding in Woodbury v. Bunker, supra. With these observations, I concur.