I dissent. Plaintiffs, the owners of the property in question, failed to pay the taxes and at the May sale for 1936 the property was sold to the county. At that time Blatchley was renting the property from the plaintiffs and was in arrears in the payment of his rent; instead of paying the rent, he entered into a contract with the county to purchase the tax title to the property and thereafter paid on such contract $450. Later, plaintiffs obtained a judgment in the City Court for $999 for accrued rents and damages. Thereafter Blatchley assigned and quitclaimed his interest in the property and in the contract with the county to Miller who repaid him the $450 and paid the balance on the property to the county, making a total of $1,185.54 paid to Blatchley and the county. Plaintiffs brought this action to quiet their title to the property, and Blatchley disclaimed any interest. Miller asked that plaintiffs be required to repay the money which he had paid to Blatchley and the county before plaintiffs' title to the property be quieted. Plaintiffs asked that their judgment against Blatchley be set-off against Miller to the extent that Blatchley had paid the county. The court refused to allow any set-off against Miller; held that his claim constituted a lien against the property and ordered that the lien be foreclosed in the event plaintiffs failed to pay. After the transfer to Miller, Blatchley remained in possession of the property as Miller's tenant.
I think that the court should have deducted the $450 which Blatchley paid to the county from the amount it required the plaintiffs to pay Miller, and also that the court should have taken an accounting of the value of the use and occupation of the premises during the time that Miller held possession thereof through Blatchley, his tenant. During this discussion I assume that plaintiffs were unable to collect their judgment against Blatchley, otherwise there would be no point in trying to offset it against Miller.
When Blatchley transferred his interest in the contract with the county to Miller he owed plaintiffs $999 on the *Page 274 judgment for the rent of the premises and for damages. Had there been no assignment, it would clearly have been inequitable to require plaintiffs to repay to Blatchley the money which he had paid the county before quieting plaintiff's title, while Blatchley owed on the judgment for the rent of the premises. Yet that is what I understand the prevailing opinion holds to be equitable. Such a rule would pay a premium to those who refuse to pay their honest obligations and attempt to take advantage of such refusal by obtaining the title to their benefactors' property. It might well be that plaintiffs were deprived of the means of paying their taxes by Blatchley's failure to pay the rent. Would it be equitable under such circumstances to require plaintiffs to repay the money which Blatchley had paid to the county, which should have been paid as rent, as a condition of quieting their title? Since the tax title was invalid it is not necessary to determine whether a tenant may purchase a tax title as against a landlord, but clearly when Blatchley assigned to Miller he had no right, title, interest or equity in the premises or against the plaintiffs. Did he by his assignment transfer to Miller a better right than he had?
Did Miller, by his dealings with and payment to Blatchley, place himself in such an equitable position that a court should require plaintiffs to reimburse him for the money which he paid Blatchley before it will quiet plaintiffs' title to the property? If so, then by this attempt to purchase Blatchley's interest he is in a better position than he would have been had he attempted to purchase a chose in action against plaintiff to which plaintiff had a good defense, or had he attempted to purchase real estate or personal property from Blatchley which Blatchley did not own. In either one of those cases he would have received no greater right than Blatchley had even though he parted with his money without any knowledge of any defect or defense to Blatchley's title or right to the property. He was not an innocent purchaser for value because every one who deals with tax titles has notice that he does so at his own risk. He is not in the position of one who purchases a negotiable instrument *Page 275 without notice of defects, because the requirements of trade and commerce or of sound public policy do not make it necessary that such interests be made transferable free from defenses. Nor does the fact that the equitable right to be reimbursed by the owner is limited to a case where the owner seeks to quiet his own title to the property, indicate that the right is so highly equitable that an assignee should take it free from defenses of the owner. Miller did not deal with Blatchley relying on any action of the owner, nor did the owners receive any benefit by reason of Miller's payment to Blatchley, as Blatchley had already paid the county to the extent of that payment.
There is a further reason why equity should not require plaintiffs to reimburse Miller for his payment to Blatchley. Blatchley had been in possession of plaintiff's property as their tenant and was in arrears in the payment of his rent, and while in that condition he attempted to purchase from the county the tax title to the property he was renting; then when plaintiffs sued to recover the rents owing he transferred his interest in the tax title to Miller but still continued to occupy the premises. The court has found that Miller was not a party to any scheme whereby Blatchley attempted to purchase the purported tax title while occupying the premises and owing rent therefor to plaintiffs, and that he had no notice of any defense which plaintiffs had against Blatchley. But the facts of whether such a transaction is bona fide, and whether the assignee has actually paid his money without any knowledge of defenses, are usually of such a nature that they are known only to the assignor and assignee, and the owner has no way of proving them. Under such circumstances it would be fairly easy for the purchaser of a tax title from the county to assign and quitclaim the same to a third person and prove that the transaction was bona fide even though the facts were otherwise. A holding that the assignee takes free from defenses in the owner as against the purchaser of the tax title would invite fraud and underhanded dealings. Thus the court erred in not allowing the debt which Blatchley owed the *Page 276 plaintiff to cancel Miller's equity to be reimbursed for the money which he paid Blatchley.
As to the amount Miller paid directly to the county and which released its claim for taxes he would have been entitled to reimbursement. However, Miller by his pleadings affirmatively alleges possession of the premises by himself since November 6, 1939. Since there is no issue remaining as to the invalidity of the tax title, plaintiffs never lost the paramount title, so they were entitled to an accounting for the value of the use and occupation of the premises while in Miller's possession. As held in Skeen v. Smith, 75 Utah 464, 286 P. 633, 634, the tax title claimant "was bound, when her tax title failed, to account to the paramount owner for the value of the use and occupation of the land while in her possession * * * which exceeded the amount paid on account of taxes." If it is equitable to require the paramount owner to reimburse the tax title claimant whose tax title has failed, for the amount expended to release claims of taxes, in order to prevent unjust enrichment, it follows that it is equitable to require the tax title claimant to account for the value of the use and occupation of the premises while in possession. See also Emery v. Stansbury, 173 Okla. 478,49 P.2d 155, 157, wherein the court aptly stated:
"Also, since the resale tax deed was void the defendant acquired no rights thereunder and was not entitled to collect any rents or profits therefrom and must account to the plaintiff for any rents received by him less the taxes, penalties, interest, and costs justly chargeable on the land and paid by him. * * *
"If the defendant is unable to account for the rents collected by him from the land in question, and if, by virtue of the void deed, he has deprived plaintiff of the use and occupancy of the land, then plaintiff is entitled to recover from him the reasonable rental value of the premises * * * less the taxes, etc., paid by the defendant."
If the use and occupation of the premises had a value during the time Miller has been in possession, he has a duty to account therefor to plaintiffs. If that value was in excess of the amount which Miller paid in taxes to the county, he has no right to be reimbursed for any sum of money he has *Page 277 actually paid directly to the county. If he were not required to account for the value of the use and occupation for the period he has been in possession when he had no title, and also recover from the plaintiffs the amount he paid to the county in taxes, he would be unjustly enriched. The trial court improperly ordered plaintiffs to reimburse Miller for the money paid to the county for taxes without also requiring Miller to account for the use of the premises while in possession.
I, therefore, think that the judgment should be reversed and a new trial be granted, and that the plaintiffs should be allowed to amend their pleadings to ask for an accounting for the value of the use and occupation of the premises during the time that Miller had possession, and that plaintiffs' judgment should be offset against the amount which Miller paid to Blatchley.
MOFFAT, J., participated in the hearing, but died before the publication of the opinion. *Page 278