Appeal on the judgment roll from the District Court of Weber County. Plaintiffs, appellants herein, commenced an action against defendants to quiet title to real property. Defendant Blatchley filed a disclaimer. The other defendant Miller, respondent and cross-complainant, answered and counterclaimed, asserting title in himself by virtue of a tax deed from Weber County, and asked that if his tax title be held void that plaintiffs be required to reimburse him for the amounts paid to Weber County for taxes assessed against the property. Plaintiffs replied alleging they held a judgment against Blatchley for $999, which they asked be set off against any amount found due Miller for taxes paid.
The court decreed title to be in plaintiffs subject to a lien in favor of Miller for the full amount paid to Weber County, and refused to allow plaintiff any set off. Plaintiffs appeal from that portion of the judgment refusing to allow the set off. Defendant Miller cross-appealed from that part of the judgment adjudging title to be in plaintiffs. Since this appeal was taken, our decisions in Curley v. Mills, 139 P.2d 882, and Telonis v. Staley, 144 P.2d 513 (on rehearing), *Page 261 has settled the questions involved in the cross-appeal adversely to cross-appellant, and it was not argued at the hearing.
The stipulation of the parties and the findings of the court established the following facts: That at all times since 1930 plaintiffs were the owners of the property; that they failed to pay the taxes assessed against said property for the year 1931, and in 1936 the property was offered for sale at the May sale. No bids were received and thereafter the Board of Commissioners of Weber County, by contract, agreed to sell the property to Blatchley; on which contract Blatchley paid the sum of $450. At the time Blatchley entered into the agreement to purchase the property from Weber County he was in possession of it as a tenant of plaintiffs under an oral lease. However, he had no duty to pay the taxes. Some time prior to 1937 he had defaulted in the payment of rent. For his failure to pay rent and for damages for unlawful detainer, in 1937, judgment for $999 was obtained against him by the plaintiffs in the city court. The judgment had not been satisfied. In 1939 Blatchley with the consent of the Board of Commissioners, assigned and quitclaimed his interest in the property involved herein to respondent Miller, who thereupon paid to Blatchley the sum of $450, and thereafter paid to the county for the balance due on said contract, taxes and assessments, the sum of $563.22. Miller took without actual knowledge of any defenses as between his assignor and appellants. The court found the tax sale to be void.
The questions calling for our decision follow: (1) Is the assignee of, or purchaser from a tax title claimant, when his tax title is voided at the suit of the owner who did not pay the taxes, entitled to reimbursement for taxes paid before the owner's title be quieted against the tax title holder, or to put it another way, is Miller, who acquired Blatchley's interest and contract in the lands and tax sale involved, entitled to recover from Reeve, the full amount of the taxes paid before Reeve's title be quieted by the court? (2) In *Page 262 such suit, what obligations due him from the tax title claimant can the legal owner offset against the taxes so paid?
We consider them in order. (1) The owner who seeks to have his title quieted against a void tax deed must reimburse the tax title purchaser for all taxes lawfully levied and paid by the tax title purchaser. Bolognese v. Anderson, 87 Utah 455,49 P.2d 1034; Id., 97 Utah 136, 90 P.2d 275; Burton v. Hoover,93 Utah 498, 74 P.2d 652; Cooley on Taxation, 4th Ed., Vol. 4, Sec. 1508. Can one who has purchased from the tax title purchaser, when sued in an action to quiet title, demand from the owner reimbursement of all taxes paid by himself or his predecessors under the tax title? The right to reimbursement for taxes paid does not exist at law, even in favor of the original tax title purchaser, Anson v. Ellison, 104 Utah 576, 140 P.2d 653; 37 Cyc. 1537; Cooley on Taxation, 4th Ed., Sec. 1553, and cases there cited. But in equity this right in the original purchaser has been recognized to a limited extent. Cases cited supra. See also Holland v. Hotchkiss, 162 Cal. 366, 123 P. 258, L.R.A. 1915C, 492, and annotation thereto. An original action will not lie in equity, any more than in law, to collect such payment or to impress a lien on the property therefor. Anson v. Ellison, supra; 26 R.C.L. p. 463; Joliet Stove Wks. v. Kiep, 230 Ill. 550,83 N.E. 875, 12 Ann. Cas. 227 and note; Cooley on Taxation, Vol. 4, Sec. 1553 and 1556, 4th Ed., and cases cited. Greenwood v. Adams, 80 Cal. 74, 21 P. 1134. But some courts of equity, this jurisdiction among them, have held that they will not quiet the owner's title until he reimburses the other party for the taxes paid by him. Bolognese v. Anderson, supra; Anson v.Ellison, supra. This is upon the basis that he who seeks equity must do equity. If while the tax title is in the county, the title and sale be declared void, the county may reassess the property for that year (Sec. 80-5-17 and 80-10-30, U.C.A. 1943) or may the next year resell the property for such delinquent taxes (Sec. 80-10-40, U.C.A. 1943) depending on the grounds upon which the sale was voided. But when the county sells its tax title, it receives its money and its tax lien is extinguished.Anson v. Ellison, *Page 263 supra. Since the county has received the taxes levied upon the property, it cannot now go back and reassess it, or resell for the taxes when the tax sale is declared void by the court. The owner, in having the tax sale and tax title voided against the purchaser, takes his property back free and clear of the tax lien, and not subjet to the payment to the county of such taxes as the purchaser paid. To permit this would countenance unjust enrichment at the expense of an innocent party. This a court of equity will not do. But even this rule is limited to taxes which were or could have been lawfully levied on the property. If the tax itself was an illegal one, and not merely erroneous in some respects, reimbursement need not be made. Harper v. Rowe,53 Cal. 233; Lufkin v. City of Galveston, 73 Tex. 340,11 S.W. 340; Chicago M. St. P.R. Co. v. Kootenai County, 33 Idaho 234,192 P. 562; Cooley on Taxation, 4th Ed., Sec. 1508. And if the tax be a lawful tax in part and unlawful in part, reimbursement need not be made for the unlawful part. Cases supra. Smith v. Enterprise Irrig. Dist., 160 Or. 372,85 P.2d 1021; Security Land Inv. Co. v. Ranger Realty Co., 115 Fla. 640,156 So. 23. The rule therefore as invoked by the court of equity may be stated thus: One who asks a court of equity to decree his title to be free from tax liens must pay the amounts of taxes lawfully assessed against the property before the court will decree it free and clear of such taxes.
Since the tax title claimant cannot maintain an action for the taxes, and can only assert them when action is brought against him to extinguish of record his claim, it is evident that the court of equity does not recognize in him a right in law or equity to recover what he paid to extinguish a 1, 2 tax lien. What the court of equity does is to impose upon the owner the duty of himself paying the amount of the taxes before it will enter a decree establishing in effect that there are no claims against the property for such taxes. This is further evidenced by the fact that if the owner refuses to reimburse the tax title claimant, the court does not quiet title in claimant, nor does it enter a *Page 264 judgment for the amount in his favor. The court just refuses its decree in favor of the owner, and leaves the parties where it found them.
Since the court is exercising its prerogative against the owner to make him do equity, by making whole the party who is out the money that cleared his land of taxes, it can make no difference whether such party be the original purchaser from the county, or one who takes from such purchaser. 3 Equity imposes the obligation on the owner to make whole the party who is out the money; it does not create a claim in favor of the man who paid the county. It follows that the party who in the suit claims the tax title to the property being the one who will be out by decree in plaintiff's favor is the party to whom the owner must do equity. State ex rel. Babcock v. Chisago County, 115 Minn. 6, 131 N.W. 792, Ann. Cas. 1912d 669. Reeve therefore should be required to reimburse Miller for the total taxes paid to the county, whether by Miller directly to the county, or by him to reimburse Blatchley for the amount of taxes Blatchley paid the county.
(2) It is not within the functions or powers of a court of equity to determine, fix or enforce rights between parties not properly before the court by virtue of the litigation pending. Nor does a court of equity extend its powers to enforce rights for which the law has provided remedies. And a court of equity will not compel one to pay a debt which can be enforced at law simply because such person be brought into a court of equity on another matter. Nor does a court of equity constitute itself a collection agency. Here Reeve brought Miller into court to determine the validity of a tax title held by Miller to the land owned by Reeve. Since it is admitted that Reeve did not pay the taxes, through payment of which Miller and his predecessor in interest deraigned their claim of title, the court required Reeve to reimburse Miller for the money paid the county in satisfaction of its tax claim. Reeve now contends that he should be permitted to set off against Miller's claim for taxes paid, a money judgment he held against Blatchley, Miller's predecessor *Page 265 in interest, for rent and unlawful detainer of the land during the time Reeve held the title and Blatchley was his tenant. Should such set-off be permitted? Clearly it does not come within the reason or the rule under which equity requires the owner to reimburse the man who paid the taxes, which inure to his benefit, before it quiets his title against such tax title. Neither the judgment, nor the claim out of which it arose, nor its payment affect the title of the property, nor inure to the benefit of Reeve's title by removing any liens or claims against it, or free it from any liability for taxes or other apparent obligations or interests which Reeve seeks to extinguish. It is equally clear that it does not come within the statutory grounds for set-off or counter-claim (Sections 104-9-2 and 104-9-4, U.C.A. 1943), because those sections expressly provide that such claim must be one upon which a judgment might be had in favor of the one who asserts the claim against the other party, and must arise out of the transaction set up in the complaint, or be a claim upon a contract between the parties, if the complaint is founded upon a contract. But such claims may be compensated as far as they equal each other (set off) only when they are such that one could be pleaded as a counter-claim against the other. Reeve's judgment against Blatchley for unlawful detainer does not arise out of the transaction set forth in plaintiff's complaint, to quiet title, nor the transaction by which Reeve is required to pay Miller the amount of taxes paid the county; neither is Reeve's judgment nor the requirement that he reimburse Miller for the taxes, founded upon contract. Again, the two items are not mutual or cross-demands between the parties, because Reeve could not enforce, and had no right to demand payment of, the Blatchley judgment from Miller. Furthermore, Miller did not have a cause of action, or claim upon which he could found a cause of action, against Reeve, to recover the monies paid the county as taxes or for the tax title. Since he had no claim of which the law could take cognizance, they certainly could not be cross-demands, or "set off" by compensating claim against claim. *Page 266
Should the court under its general equity powers allow this set-off? The question might even be made broader and say: Can a court under its general equity powers allow this set-off? It is argued that not to allow the set-off would be an unjust enrichment of someone. There could be no unjust enrichment of Blatchley, because he paid the county $450 for the taxes, of which Reeve received the benefit. Since Reeve gets the property, Blatchley would be $450 "in the hole," except for the fact that Miller paid Blatchley that sum, which leaves Blatchley no richer and no poorer. When Reeve takes the property, after Miller repaid Blatchley and paid the county the balance of taxes, Miller is $1,185.54, with interest, "in the hole" and Reeve would be unjustly enriched by that amount. When the court required Reeve to reimburse Miller, all three parties were where they would have been had Reeve paid his taxes or redeemed his property from the county. There is now no unjust enrichment of anyone. To allow Reeve to offset the Blatchley judgment against Miller, equivalent to collecting the Blatchley judgment from Miller, unjustly enriches Blatchley $450; unjustly enriches Reeve $450 and unjustly impoverishes Miller that amount, for the benefit of Reeve. (Miller is the only one who had nothing to do with the transaction between Reeve and Blatchley; the only one not chargeable with some neglect of his obligations.) To thus impoverish the only one who met all of his obligations, for the benefit and enrichment of the two who had defaulted in theirs, will not appeal to the conscience of any chancellor. I think that is enough said, but let us look at the authorities. At law a party cannot use a matter as a set-off unless it is a legally subsisting cause of action in his favor and upon which he could maintain an independent action. United States v. Norvell, D.C., 20 F.2d 670, affirmed, 5 Cir., 24 F.2d 1019; Shipp v.Davis, 78 Ga. 201, 2 S.E. 549; Hurford v. Norvall,39 Okla. 496, 135 P. 1060; Geo. Irving Co. v. Acunto, Sup., 162 N.Y.S. 919; Meyer v. Montgomery, 87 Mich. 278, 49 N.W. 616; 57 C.J. page 387, and cases cited. In equity, under special circumstances a set-off upon which an independent action *Page 267 could not be maintained may be allowed. But even in equity, the claim allowed as a set-off must be one that runs against the party to whom it is to be applied. No one will contend that Reeve could maintain an action against Miller either on the Blatchley judgment, or on the cause of action upon which it was obtained. If Reeve be allowed to set off the judgment against Miller it would allow him to do that indirectly which he cannot do directly; to accomplish by way of set-off that which he would be debarred from asserting in a direct action. This he may not do.Russell, Assignee, v. Owen, 61 Mo. 185. A demand cannot be set off in equity any more than in law unless it exists in favor of the person asserting and against the party sought to be held.Iler v. Midland Nat. Bank, 69 Mo. App. 64; 57 C.J. p. 387. It is conceded that there was no obligation due from Miller to Reeve, or anyone else to offset any part of the amount the court directed Reeve to pay Miller as a condition for having his title quieted. There being no such obligation, there is nothing to set off. United States v. Norvell, supra; Pine River Co. v.United States, 186 U.S. 279, 22 S. Ct. 920, 46 L. Ed. 1164;Stanley v. Schwalby, 162 U.S. 255, 16 S. Ct. 754,40 L. Ed. 960. The grounds upon which equitable set-off will be allowed are discussed in 57 C.J. pages 362, 363, 364, and cases there cited, wherein it is declared that equity ordinarily will not aid a set-off where legal remedies are adequate, unless necessary to prevent wrong and injustice; and that the party seeking it must show equitable grounds therefor, and the set-off will not be allowed when it would be inequitable or work injustice; that "an equitable right of set-off must not only be a natural equity but such an equity as can be enforced by judicial action, and not arising merely from moral considerations. 57 Cyc. 363; Van Pelt v. Boyer, 8 How. Prac., N.Y., 319. A mere right of set-off is not itself an equity; it becomes so in consequence of some additional circumstances. Graham v. Tilford, 1 Metc. 112,58 Ky. 112. The general rule is that equity will not set off against a claim of one person, a claim of his debtor against another.Balbach v. Frelinghuysen, C.C., *Page 268 15 F. 675; In re Steele-Smith Dry Goods Co., D.C., 298 F. 812; and an extensive anotation in 57 A.L.R. p. 778 ff; supplemented by annotation in 93 A.L.R. p. 1164 ff.
All that a court of equity should require as a condition to quieting title in the owner against a tax title claimant is that he pay to such claimant the sum advanced by the latter to pay the taxes less any benefit which he derived from the property supposedly purchased. The only "equities" to 4, 5 be considered are those which flow from claimant's dealing with the tax title. The tax title failing, he should be placed in no worse and no better position than had he not dealt with such title at all. This requires merely that he be paid — as a condition to quieting title in his adversary — the amount he is out of pocket by reason of his purchase. Hence, even as between the plaintiff and Blatchley, the former should not be permitted to offset against the amount paid on the taxes, his judgment against Blatchley. The chancellor should confine his inquiries to the transaction which resulted in the title conflict and the benefits and detriments ensuing therefrom. The entry of a decree quieting title should leave the parties in statu quo. This is equitable. The one purchasing a tax title should not, in a proceeding in which such title is held invalid, be adjudged to have paid the money on a judgment or a debt due the owner, when he thought he was paying for the property and which did pay the taxes of the owner.
The fact that the judgment here sought to be offset against the sum paid in extinguishment of the county's tax lien, was secured in an unlawful detainer action against Blatchley as occupant of the premises, title to which was being litigated, would not justify its being offset, any more than if such judgment had been obtained on a promissory note or for goods sold and delivered. As far as the record discloses, Blatchley's contract of purchase with the county had no connection whatever with his contract of tenancy with Reeve. The trial court was right in refusing to offset such judgment against the taxes Miller paid. *Page 269
This disposes of every question raised in the pleadings or involved in the stipulation of facts, the findings, conclusions and the judgment of the trial court, the errors assigned or discussed in the briefs or in the oral argument. We therefore pursue the inquiry no further.
From what has been said it follows that the tax title claimant, Miller, does not acquire a lien on the property for the monies he paid to remove the county's tax lien, and the court was in error in declaring a lien and ordering a sale of the property to satisfy the same; it also follows that the court should not enter the decree quieting title in the owners (Reeve et al.) until they repay to Miller the full amount paid to the county on account of its tax claims, with interest; that the judgment of plaintiffs against Blatchley cannot be off set against the claims of Miller for taxes paid.
The action is remanded to the District Court of Weber County with directions to set aside the decree heretofore entered, and to enter an order and decree in harmony with the views herein expressed.
Each party to bear their own costs.
McDONOUGH, J., concurs.