[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 316 Action by the plaintiff and respondent, Crystal Lime Cement Co., against the defendants and appellants, Golden W. Robbins and his wife, Harriet J.K. Robbins to quiet title to the following decribed tract of real property: The Northwest quarter of the Northeast quarter, the North half of the Northwest quarter, and lots 2, 3 and 4 of Section 34, Township one North, Range one East, Salt Lake Meridian, situated in the County of Salt Lake, State of Utah.
The defendants in their answer to the complaint put in issue the ownership of the above tract, and in what they denominated a counterclaim sought to recover a judgment quieting title in them to the land described in the complaint, and also the following described parcel: The West one-half of Southeast quarter of Section 28, Township one North Range one East, Salt Lake Meridian, situated in the County of Salt Lake, State of Utah.
The plaintiff replied to the counterclaim denying the defendants' ownership of the parcel immediately above described, but did not ask for any affirmative relief as to it. The defendants base their claim of title to both of the above *Page 317 described tracts on tax titles purchased from Salt Lake County. The plaintiff is the record title owner of both tracts. The defendants, H.J. Steiner and his wife Sophia R. Steiner, were impleaded by the defendants Robbins on the theory that they claimed some interest in the properties adverse to them. The Steiners entered a general denial of title in the Robbins, but claimed no title in themselves. Hereafter reference to the defendants will mean the defendants Robbins only. The court below quieted title to the first described tract, hereinafter referred to as the 145 acres, in the plaintiff and entered a decree declaring that the defendants Robbins have no right, title, or interest in the second described tract, hereinafter referred to as the 80 acres. No offer of reimbursement was made by the plaintiff for money expended by the defendants in paying the taxes on the properties, nor did the decree of the court require reimbursement, although proof was submitted as to the amount of these expenditures. The defendants contend, among other things, that the court erred in not requiring the plaintiff to reimburse them for the amount expended by them in paying the taxes on these properties.
It appears that the 145 acre tract described in the complaint was patented from the United States as the Consolidated Marble Placer Mining Claim, March 7, 1892, and the patent was recorded November 9, 1892. No contention is made that the 80 acre tract is or ever was a mining claim. Salt Lake County through its proper officers levied property taxes upon both tracts of land for a number of years. These taxes were paid by the plaintiff or by its predecessors in interest. Later, however, taxes levied by the county were not paid and the defendants purchased tax titles to both of the tracts at the May tax sale in 1943. Plaintiff was suspended as a corporation in 1943 for failure to pay the annual corporation tax but was reinstated July 25, 1946. The stock of the plaintiff corporation while it was suspended was purchased by the Steiners, and it was this group which secured its reinstatement. It appears that a majority of the *Page 318 stock in the corporation is owned by H.J. Steiner; his wife, Sophia R. Steiner; Dean R. Steiner; and Cyrus Gatrell.
The lower court quieted title to the 145 tract in the plaintiff apparently on the theory that it was a mining claim and therefore was subject to assessment by the State Tax Commission rather than by the Salt Lake County Assessor, under 80-5-3, U.C.A. 1943, then R.S. Utah, 1933, 80-5-3, which declares that:
"* * * all mines and mining claims, and the value of metalliferous mines based on three times the annual net proceeds thereof as provided in section 80-5-56, and all other mines and mining claims and other valuable deposits, including lands containing coal or hydrocarbons, nonmetalliferous minerals underlying land the surface of which is owned by a person other that the owner of such minerals, all machinery used in mining and all property or surface improvements upon or appurtenant to mines or mining claims and the value of any surface use made ofnonmetalliferous mining claims or mining property for other thanmining purposes; must be assessed by the state tax commission as hereinafter provided. All taxable property not required by the constitution or by law to be assessed by the state tax commission must be assessed by the county assessor of the several counties in which the same is situated. For the purposes of taxation all mills, reduction works and smelters used exclusively for the purpose of reducing or smelting the ores from a mine or mining claim by the owner thereof shall be deemed to be appurtenant to such mine or mining claim though the same is not upon such mine or mining claim." (Italics added.)
We used the word "apparently" in the preceding sentence because the sale of both tracts was subject to the same defect, viz., the absence of auditor's affidavits in proper form on the assessment roll. Had title to the 145 acres been quieted in the plaintiff on account of this defect, the lower court, no doubt, under the general equity rule prevailing in this state, would have required the plaintiff to reimburse the defendants for the taxes on the property they have paid to the county. See OregonShort Line R. Co. v. Hallock, 41 Utah 378, 126 P. 394, andBolognese v. Anderson, 87 Utah 455, 49 P.2d 1034. *Page 319
As to the 80 acres, it appears that the taxes were properly assessed, but that the auditor's "affidavit," although made in the exact language of Section 80-7-9 and 80-8-7, U.C.A. 1943, did not include a jurat when attached to the assessment book or roll. This defect existed in the years 1938 through 1941.
It will be noted that by Sec. 80-5-3, U.C.A. 1943, the value of any surface use made of nonmetalliferous mining claims or mining property for other than mining purposes must be assessed by the State Tax Commission. Hence, it would seem that even if the surface were developed into residential property so long as the character of the subsurface were mineral, the State Tax Commission and not the county assessor must assess the surface value as well as the mineral or mining value of the subsurface. It is not here necessary to decide which of the two agencies would assess if the subsurface lost its character as mineral lands. All we now need hold is that until there is proof that the land has lost its character as mineral land or mining property it is assessable by the State Tax Commission. That furthermore, where title is derived from the Federal government by the issuance of a patent as mining property there is a presumption that it is property of that character until it is proved otherwise. 36 Am. Jur. 372. In the instant case, the plaintiff introduced the original patent which describes the property as mining premises. There is substantially nothing in the record to indicate a change in the use of the land from the date of the patent until the time of the trial below. There is some evidence that in recent years mining activity has not been carried on, but rather that sunflowers have been seeded and are now growing upon the property. This is not sufficient to overthrow the presumption that arises from the original patent. While we are not prepared to say that property which has originally been patented as mining property will always be mining property for the purposes of taxation by this state, there is no substantial evidence in the record to *Page 320 warrant a finding that this 145 acre parcel is no longer mining property. Nor is the plaintiff precluded from contending that this is mining property because it has not filed with the State Tax Commission a sworn statement giving the information required to be furnished to that commission by 80-5-59 and 80-5-60, U.C.A. 1943. The assessment of the property is not contingent upon the filing of this sworn statement.
It is contended by the defendants that even if the 145 acres was held by the lower court to be mining property, it should have required the plaintiff to reimburse them for the amount they expended in purchasing the tax title from the county as a condition to its entering a decree quieting title in the plaintiff. The plaintiff on the other hand, contends that while ordinarily reimbursement is required by the court as a condition to quieting title in the record owner, that reimbursement here was properly refused since there was not a valid assessment of the 145 acres during the years from 1938 to 1941 in that the State Tax Commission did not assess the property as required by statute; that the assessment made by the county assessor of Salt Lake County was void; and that the defendants in paying the taxes levied under these void assessments have not benefited the plaintiff in the least.
The plaintiff's contention must fail. This is not a case where taxes, under a void assessment, have been paid to a county other than where the property is situated, and as a consequence thereof, different governmental units have shared in the apportionment of the money thus paid than would have shared had the property been assessed in the proper county. It is important to note that in this case whether the 145 acres was assessed by the State Tax Commission or by the assessor of Salt Lake County, the taxes would be payable to the treasurer of Salt Lake County and would be apportioned to the same governmental units, viz. state, county, municipality, school district, etc., in exactly the same proportions in both instances. The only difference *Page 321 which could result from the county assessing the property instead of the Tax Commission would be that the amount of taxes levied might not be the same.
Since the assessment made by the assessor of Salt Lake County was void, the State Tax Commission is not precluded from now making a proper assessment for those years it omitted to do so. However, should such a re-assessment be made, the amount of the taxes already paid would be credited toward the amount owing under the second assessment. Sec. 80-10-18, U.C.A. 1943, provides:
"When the county treasurer discovers that any property has been assessed more than once for the same year, he must collect only the tax justly due and make a return of the facts, under affidavit, to the county auditor."
Therefore, because payment of the taxes by the defendants upon the 145 acres has benefited the plaintiff, it is equitable that the latter be required to reimburse the defendants for the money thus paid as a condition to the granting of his prayer that title be quieted in him.
In Squires v. Estey, 33 Cal. App. 287, 165 P. 34, the court was confronted with a situation somewhat similar to the one at bar. The court required reimbursement, relying upon Holland v. Hotchkiss, 162 Cal. 366, 123 P. 258, L.R.A. 1915C, 492, which applied the broad principle that he who seeks equity must do equity. The court said that the most recent cases which are cited in Holland v. Hotchkiss as upholding the doctrine of reimbursement or which have been decided since,
"are cases in which the assessments and levies of taxes were void for irregularities as vital as those relied upon by the appellant in the case at bar, notwithstanding which the owners of the property going into a court of equity, seeking the equitable relief of a decree quieting their title as against void tax deeds, were required in each case to pay or offer to pay a sum equal to the taxes which would be justly due. Couts v.Cornell, 147 Cal. 560, 82 P. 194, 109 Am. St. Rep. 168;Savings Loan Soc. v. Burke, 151 Cal. 616, 91 P. 504;Campbell v. Canty, 162 Cal. 382, 123 P. 266; Johnson v.Canty, 162 Cal. 391, 123 P. 263; Cordano v. Kelsey, 28 Cal. App. 9,151 P. 391, 398." *Page 322
The court further added that the respondent's right to recovery did not depend upon any section of the Code, but rested upon
"a principle of equity well established in the decisions of the courts long prior to the amendment of the Code." See also Weyse v. Biedebach, 86 Cal. App. 712, 261 P. 1086, 1092, and H. W.Pierce, Inc. v. Santa Barbara County, 40 Cal. App. 302,180 P. 641, affirming the rule of the Squires case; Barker v.Mecartney, 10 Kan. App. 130, 62 P. 439; McAllaster v.Polenqueen, 10 Kan. App. 140, 62 P. 440; and the cases cited by Mr. Justice McDonough in his dissenting opinion in Shipp v.Sheffield, 101 Utah 54, 62, 117 P.2d 996.
We are aware of numerous cases holding that reimbursement will not be required when the tax for which the property has been sold is "invalid" or "void." The reason generally assigned for this refusal is that since there was no duty on the part of the record owner to pay the void or invalid tax, the tax title claimant in paying it acted as a volunteer and cannot now complain. See the cases cited in the notes at L.R.A. 1915C, 492, 503; 16 American and English Ann. Cs. 803, 804; 86 A.L.R. 1208, 1235. Some of these cases refused reimbursement because the land was not subject to taxation. West v. Cameron, 39 Kan. 736, 18 P. 894;Machado v. Canty, 18 Cal. App. 35, 122 P. 77; GarrettBiblical Institute v. Elmhurst State Bank, 331 Ill. 308,163 N.E. 1. Other cases refused reimbursement because the record owner had already paid the taxes. Gage v. Kaufman,133 U.S. 471, 10 S. Ct. 406, 33 L. Ed. 725; Kent v. Auditor General,138 Mich. 605, 101 N.W. 805; Glos v. Shedd, 218 Ill. 209,75 N.E. 887. In still other decisions reimbursement was not required because the assessment was defective due to an inadequate description of the property or because the assessment was made in the wrong name. It is thought that this last mentioned class of cases is contrary to those cited in the next preceding paragraph as there does not occur to us any distinction in the quality of the invalidity between those cases, on the one hand, where there was a failure to correctly follow the tax procedure in matters other than inadequately describing the *Page 323 property assessed or assessing it in the wrong name, and, on the other hand, where the invalidity consisted of other omissions or non-conformity with the authorized tax procedure. As to the other classes of cases mentioned above where the land was not subject to taxation or the record title owner had already paid the taxes, reimbursement was properly refused since payment by the tax title claimant under those circumstances was clearly of no benefit to the record title owner. But when, as in the instant case, the property is subject to taxation and the tax title claimant has in good faith paid a tax which will be credited toward the amount justly due on the property, reimbursement should not be refused even though the assessment on which the tax was levied was void. If the amount of the taxes due under a valid assessment would be less than the amount paid by the tax title claimant under the void assessment, then reimbursement should only be required up to the amount which would be due had the property been correctly assessed.
It cannot be successfully urged against the defendant's position that they are strangers and intermeddlers who have voluntarily paid a tax which the plaintiff could not have been compelled to pay. Weyse v. Biedebach, supra, [86 Cal. App. 712,261 P. 1092] required reimbursement
"regardless of the fact that defects and irregularities in the assessments might render the taxes uncollectible." Squires v.Estey, supra, is to the same effect.
The defendants are not interlopers but have acquired color of title through their quitclaim deed from the county.
We hold, therefore, that the plaintiff should be required to reimburse the defendants for the amount expended by them in purchasing their tax title to the 145 acres from the county, exclusive of any premium the defendants might have paid, but only up to that amount which would have been due had the property been properly assessed by the Tax Commission during those years. Because it may be *Page 324 some time before the State Tax Commission makes an assessment for those years it omitted to do so, if it ever makes an assessment at all, the lower court should fashion the relief granted to the parties to meet this exigency. It would work an injustice on the plaintiff to delay entering a decree quieting title in it until the Tax Commission acts. The lower court, could for instance, require the plaintiff to reimburse the defendants for the amount paid by them and if there were any likelihood that the assessment for those back years, if and when made by the Tax Commission, would be substantially less than that made by the county assessor, exact from defendants assurance that the defendants would repay to the plaintiff the difference.
Turning our attention now to the 80 acres, the "counterclaim" of the defendants which introduced into the case the issue of ownership of the 80 acre tract, is not a counterclaim under our code (Sec. 104-9-2, U.C.A. 1943). The 80 acres is entirely separate and distinct from that described in the complaint; it does not arise out of any transaction set forth in the complaint as a foundation for the plaintiff's claim nor is it connected with the subject of the action; and the causes are not founded upon contractual relationships between the litigants. The decision upon the counterclaim would not defeat, qualify or affect a decision on the complaint. 47 Am. Jur. 745, Sec. 47. They are as separate as if instituted as individual suits.
The defendants at the trial, before any evidence was offered as to the 80 acres, moved to dismiss their counterclaim as to that property, as well they might, for it was apparent that the plaintiff by its reply might defeat them in their action to have the title quieted and yet escape reimbursement. The defendants saw that if their counterclaim went to trial they might be trapped, that is, have a judgment against them that they had no interest in the property which would forever preclude them as to the plaintiff, and yet obtain no reimbursement, and underFisher v. Wright, 101 Utah 469, 123 P.2d 703, be unable to bring a suit against *Page 325 the plaintiff for the money invested in the deed. Hence they moved for a dismissal. To this motion the plaintiff objected. The plaintiff sought no affirmative relief in its "reply." The "reply" must be treated as if it were an answer to a complaint. Then as to the 80 acres the defendant was in effect a plaintiff and the plaintiff a defendant. Sec. 104-29-1, U.C.A. 1943, permits dismissal by the plaintiff any time before trial if there is no affirmative relief or counterclaim sought by the defendant.
The Utah cases hold, as has been pointed out, that if affirmative relief is granted the original title holder, then reimbursement of the tax purchaser is in order. Unfortunately it has been held in this jurisdiction that a defendant in an action to quiet title may simply deny the plaintiff's claim of title and refrain from asking to have his (defendant's) title or interest adjudicated. Such tactics in pleading were questioned in the concurring opinion in the case of Mercur Coalition Mining Co. v. Cannon, 112 Utah 13, 184 P.2d 341, in view of 104-57-1, U.C.A. 1943, which provides for the bringing of an action against a party who claims an estate or interest in real property adverse to the plaintiff "for the purpose of determining such adverse claim." The difficulty which arises in the present case is that the plaintiff, relying on the decree in this case, will never need to quiet title to the 80 acres as against defendants' tax title, and defendants will be without remedy to recover their taxes paid because as the law now stands their right to reimbursement for taxes paid arises out of the equitable jurisdiction of the court and is imposed as a condition to the court's decree quieting title. Unless the plaintiff brings an action to quiet title to the 80 acres which, as before stated, it need not now do, the defendant will not be furnished with an opportunity to ask for reimbursement. The defendants could not themselves institute an action for reimbursement. Fisher v.Wright, supra.
As soon as the pleadings revealed that the plaintiffs were seeking no affirmative relief as to the 80 acres, it should *Page 326 have been apparent to the trial judge, in view of the pronouncements of this court, that he could not give the defendants adequate relief by way of reimbursement. By its denial of the motion the trial court, in effect, foreclosed the defendants of the opportunity of ever asserting the taxes and expenditures as against the plaintiff, thus enabling the plaintiff to avoid doing equity in spite of the benefit received of the payment of the taxes by defendants. The defendants' assignment of error number 12, "That the Court erred in not dismissing the case as to the 80 acres," is well taken.
Having decided that the lower court erred in denying the defendants' motion to dismiss their counterclaim as to the 80 acres, it becomes unnecessary to consider the question of whether the absence of a jurat on the auditor's "affidavit" attached to the assessment roll is a material defect in the tax sale procedure.
The defendants lastly contend that the corporate officers who instituted this suit and verified the complaint on behalf of the plaintiff corporation are not properly elected officers of that corporation. This contention cannot be here entertained. Questions of the validity of an election of officers are not matters which may be raised collaterally. Jones v. Bonanza Min. Milling Co., 32 Utah 440,91 P. 273; Charitable Ass'n v. Baldwin, 1 Metc. 359,42 Mass. 359; Guaranty Loan Co. v. Fontanel, 183 Cal. 1,190 P. 177; Jones v. Peck, 63 Cal. App. 397, 218 P. 1030; ConsumersSalt Co. v. Riggins, 208 Cal. 537, 282 P. 954; 2 Thompson Corporations, 3rd ed. sec. 1058; 2 Fletcher, Cyc. Corp. Sec. 371, 387.
The cause is remanded to the district court for further proceedings not inconsistent with this opinion. Costs to the appellants.
WADE and McDONOUGH, JJ., concur. *Page 327