I concur. The opinion involves an extension or new application of the principle laid down in the opinion in the case ofHadlock v. Benjamin Drainage District, 89 Utah 94, *Page 185 53 P.2d 1156, 1157, 106 A.L.R. 876. It was said in that opinion "That one who is under a duty to pay taxes cannot add to or strengthen his title by purchasing the land at tax sale." The cases in support of that proposition were all cases where the law prevented one who paid the taxes or bought at a tax sale or bought a tax title from deriving any advantage over another in respect to whom he owed the duty of protecting a title or a lien. The difference between the prevailing and dissenting opinions in that case was as to whether a mortgagee whose lien had been lost by the tax sale could purchase at the tax sale the property on which he formerly had a lien free from drainage district taxes; but there was no difference in opinion as to the principle above enunciated. The writer is of the opinion that the purchaser at the tax sale, whose duty it was to pay the taxes, obtains a new title from the county and does not redeem from a sale which extinguished his title but that he is estopped as to the mortgagee from denying the mortgagee's lien on his newly acquired title. This estoppel arises because it was his, the mortgagor's, duty to pay the taxes and preserve the lien for the mortgagee so that his purchase at the tax sale must be considered to be in furtherance of and harmonious with his duty. Naturally, if the auditor's deed extinguished the mortgagor's title and wiped off all liens (Hanson v. Burris, 86 Utah 424, 46 P.2d 400) the purchase of the mortgagor at the tax sale would not be a redemption (the period of redemption having passed) but would be the initiation of a new title free from all prior liens. The only way the mortgagee, who has lost his lien by that process, can assert a lien is by the process of estoppel by which the law forbids the mortgagor-purchaser the right to deny the existence of that lien. The question arises as to whether one who has not obligated himself to the mortgagee to pay taxes but only to the mortgagor, comes within the circle of those against whom the estoppel may be invoked. In this case Ross Gigliotti had agreed to pay one third of the taxes, for which he was to obtain an interest in the property. Had he and the *Page 186 other two Gigliottis done what they should have done, i.e., paid the taxes, Ross would have obtained title from the other two Gigliottis by coveyance subject to Albergo's mortgage. By failing to keep his contract with the other defendants to pay his part of the taxes, he cannot as to Albergo put himself in a better position in regards the property than if he had performed the contract. It is an application of the more ultimate principle that one should not be permitted to gain by his own wrong. The estoppel may be invoked by Albergo as to Rosario Gigliotti.
Furthermore, another and additional reason for the estopel appears. Rosario Gigliotti had made a number of payments of principle and interest to Albergo on the theory that he had an interest in the property arising by virtue of his contract with his parents. For that reason he had a duty which was equivalent to that of the owner to the mortgagee. Moreover, Albergo had sent a check to pay taxes, interest, etc. to the county commissioner in order to purchase the property. He then learned the Gigliottis had applied to purchase, whereupon he withdrew his check consenting to let them purchase. To permit the Gigliottis to take the property free from his lien would in effect work a fraud upon him. I think such facts form an additional ground for estopping the defendants from denying Albergo's lien.
While I cannot agree with the lower court's finding that defendants took no title by the deed from the county, but only paid the taxes as they were required to do for reasons above noted, I think, in view of the prevailing opinion in the Hadlock Case, the finding was correct. The court could hardly find otherwise And the result at which it arrived is of course the same as if it had applied the principle of estoppel. *Page 187