The first issue presented to the trial court in this cause under a short form of complaint was a request to quiet title to lots 3 and 4, Plat D, Salt Lake City Survey by the plaintiff who claimed ownership based on a tax deed to one of the lots and a deed from a third party whose claim was based upon a tax deed to the other lot. The complaint contained the usual prayer that defendant set forth the nature of his claim and that defendant be decreed to have no estate or interest in the property and that plaintiff's title thereto was valid and good.
Defendant answered, admitting defendant claimed an interest and estate in the property described in the complaint, to wit: as administrator with will annexed of the estate of E.S. Hallock, deceased, and denied the other allegations of the plaintiff's complaint, but did not state the nature of the claim or the source or type of interest claimed.
The cause went to trial upon the issues made. Plaintiff introduced in evidence a tax deed from Salt Lake County, dated September 1, 1939, to Lot 4 and also a tax deed dated December 2, 1938, from Salt Lake County to one Willard D. Rogers, covering Lot 3, then a deed from Willard D. Rogers to the plaintiff for said Lot 3. Plaintiff rested.
Defendant moved a dismissal. The motion was denied.
Defendant called as his witness one of counsel for plaintiff and over objection secured the introduction of an abstract of title to the property. As a part of defendant's case and the receiving of the abstract in evidence it was shown that plaintiff had secured a deed from the owner of the fee title to lots 3 and 4 in question, he having purchased it from Jennie R.M. Kinney on August 30, 1939.
Defendant introduced in evidence a tax deed to the premises from Salt Lake County to E.S. Hallock, defendant's testator, dated March 24, 1922, covering the alleged taxes *Page 56 from 1917 for which he had paid $54.31. It was also shown that defendant's testator had paid subsequent taxes in regard to the property as follows: Taxes for 1918 to 1920, $237.11; for 1921, $82.75; for 1922, $70.73; for 1923, $72.95; for 1924, $71.50.
The evidence discloses this unique situation: In 1913 William A. Kinney and Alice V. Kinney, the owners, mortgaged lots 3 and 4 in block 64 Salt Lake City Survey to Bathsheba M. Allen. This mortgage was released April 1, 1915.
In 1917 taxes on the lots appear to have been assessed against Bathsheba M. Allen, and continuously so in so far as the record discloses until not long before the beginning of this action.
E.S. Hallock paid no taxes after 1924. The property was again sold for taxes assessed against Bathsheba M. Allen in 1925, notwithstanding E.S. Hallock's tax deed had been of record since April 4, 1922, based upon a tax sale for taxes assessed in 1917 against Bathsheba M. Allen. During the whole period W.A. Kinney or his heirs or legatee Jennie R.M. Kinney was the record owner of the fee title, and in so far as appears the lots may have been assessed and taxes paid by them.
After hearing the evidence and making findings, the trial court concluded that the tax deeds held by both plaintiff and defendant were invalid. Both parties concede the correctness of the position of the court in this regard. It is found by the court and agreed to by the parties that Jennie R.M. Kinney and her predecessors owned the fee title. Bathsheba M. Allen was at all times a stranger to the title. She died February 11, 1914. The court found and decreed the plaintiff to be the owner of the fee title subject to a lien in favor of the defendant for the sum of $54.31. This is the sum paid by Mr. James H. Grut, trustee, for the certificate of tax sale for 1917 taxes assessed against Bathsheba M. Allen upon Lots 3 and 4, Block 64, Salt Lak Cty Survey. This tax certificate was assigned to E.S. Hallock. *Page 57
This appeal involves the question as to whether the trial court should also have included the further sum of $534.68 heretofore itemized and constituting the taxes paid by E.S. Hallock up to the year 1924.
In 1925 the property was again sold for non-payment of taxes assessed against Bathsheba M. Allen. No explanation is offered as to why E.S. Hallock ceased paying the taxes after 1924 or how or why the county continued to assess taxes against Bathsheba M. Allen.
We find no authorities giving to a tax sale purchaser a right to be reimbursed by the owner or subsequent tax title purchaser where the first tax sale purchaser has neglected to pay the taxes after acquiring the tax deed and has permitted the property to be subsequently sold to another for unpaid taxes whether the tax sale was void or not.
A tax sale will not be set aside for mere irregularities. Unpartitioned property assessed against one of the heirs of a deceased owner is an irregularity and is not sufficient to invalidate an assessment or prevent the attachment of a tax lien.Oregon Short Line Railroad Co. v. Hallock, 41 Utah 378,126 P. 394.
The case of Burton v. Hoover, 93 Utah 498, 74 P.2d 652,654, is a typical case where there is a void tax sale and plaintiff seeks equitable relief. The tax title was held bad for failure of a definite description. Upon that point several cases are cited in the opinion. The tax deed was set aside. On the equitable side of that case it is stated
"the plaintiff has invoked the aid of the court of equity to vacate the tax deeds, he must do equity, * * * at least to the extent to which the attempted purchase by defendants has relieved his property of liens."
Plaintiff sought to quiet his title, alleging defendant claimed some interest. The following cases were cited, OregonShort Line Railroad Co. v. Hallock, supra; Utah Lead Co. v.Piute County, 92 Utah 1, 65 P.2d 1190; Holland v.Hotchkiss, 162 Cal. 366, 123 P. 258, L.R.A. 1915C, 492. *Page 58
There cases correctly state the weight of authority and the law in this jurisdiction. In the instant case the plaintiff sought no equitable relief. The delayed answer of defendant injected the equitable feature. Neither party to this action can claim a tax lien. No valid assessment was levied against Bathsheba Allen. Whether taxes were levied, assessed or paid by the fee owner does not appear. Each of the parties hereto in so far as any claim for reimbursement is in the same position, except that the defendant fails to show he had paid anything for the benefit of plaintiff. Defendant by failing to keep alive any right he might have had, seems to have abandoned any claim under the void tax sale to him and is estopped to claim reimbursement from one who was entitled to presume defendant had abandoned any claim. In so far as tax liens may exist, if there are any, defendant's position is no better than plaintiff's when so limited. But if it be assumed the appellant had a lien, the lien was extinguished by the second tax sale when the first tax sale purchaser, the appellant, failed to keep alive whatever lien he had by payment of the taxes assessed against the property. This second tax sale purchaser, the respondent, whose tax title was as valid or as defective but not more so, is, as to the matter of the tax titles alone, equitably in the better position. The fact that the second purchaser at a subsequent time tries to strengthen his position in the absence of fraud or collusion by acquiring any other outstanding claimed title valid or otherwise should not prejudice his equitable status as between the two tax title claimants equally void as against a title holder.
In this case there is no distinction as to the validity of the assessment or sale in pursuance of the 1917 taxes and that of any of the other years. The assessment in every instance was made against a stranger to the title owner. All of the tax sales were void. It cannot be said that plaintiff was unjustly enriched or that defendant was injured. The defendant had not lost or been deprived of anything he had by virtue of his alleged purchase or tax payments before plaintiff *Page 59 acquired the fee title. When plaintiff purchased the fee title, for all that appears, it may be presumed to have been a fair bargain of sale and purchase for a good title. Had the defendant, appellant here, become the owner of the fee by purchase instead of the plaintiff and the same order of events had obtained, many cases would justify a different conclusion as reimbursement rights. Cases need not be cited. In the instant case in so far as tax matters are concerned the plaintiff is in the better position equitably and his title in fee strengthens his position.
We are compelled to leave the parties where we found them.
Judgment affirmed. Costs to respondent.
LARSON, J., concurs.
PRATT, J., concurs in the result.