I concur in the result of this opinion and in much of the reasoning. There are parts which I think unnecessary or statements with which I cannot agree or in regard to which I entertain doubt. I shall advert briefly to these statements in specifying the grounds on which I base my concurrence.
I agree that the chancellor will ordinarily, as a condition to quieting title, require the owner to pay all taxes which the owner should have paid had the tax procedure required by the statutes been correctly followed. I am not prepared to say that the chancellor "must" require reimbursement by 1-3 the owner. It depends on the equities of the situation and the chancellor may have some discretion. In some situations the owner may honestly contend *Page 270 that the property was overassessed and that he had no opportunity to contest it. In such case the chancellor might perhaps himself determine what the lawful tax should have been or refer it to a master. Ordinarily the county, having received the taxes, would not be interested in reassessing it, but I would not want to go so far as to say that the county could not "go back and reassess it," although I cannot at present conceive of a situation in which it would or could do so. However, to say in this decision that it could not do so is unnecessary.
It appears to me that the statement reading "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" gives a wrong implication and is inconsistent with other parts of the opinion. The property is free of taxes. The tax title purchaser has paid them. The opinion itself sets out direcelty under the above statement the following:
"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 tax lien."
I agree with that statement. The opinion then reads:
"What the court of equity does is to impose upon the owner the duty of himself paying the amount of the taxes before it willenter a decree establishing in effect that there are no claimsagainst the property for such taxes." (Italics added.)
Here again the idea creeps in that there is a claim for taxes against the property and that equity performs the function of declaring it "free and clear of such taxes." The real situation is reflected by what next follows in the opinion reading:
"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 *Page 271 claimant, nor does it enter a 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." (Italics added.)
With the above observations, I agree with the reasoning of the opinion in its answer to the first question propounded.
In its treatment of the second question I again sense confusion. I place my concurrence on the simple grounds that a court of equity in a case where an owner sues to quiet title will not go outside of matters arising out of and after the purchase of the tax title. Everything else is 4, 5 irrelevant. It is a fair intendment from the record that the judgment for $999 was for detainer before the tax title was purchased; therefore it does not arise from, out of, or after the tax title purchase. I think the opinion correctly states the ground in the part where it sets out that:
"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."
"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 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 *Page 272 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."
After setting out such proper grounds a treatment of what is counterclaimable under the statute seems confusing and unnecessary if not inconsistent.
For the same reasons, to wit that "the chancellor should confine his inquiries to the transaction which resulted in the title conflict and the benefits and detriments ensuing therefrom," all discussion as when a set-off is allowable in law or equity is irrelevant and confusing because the judgment did not concern the "title conflict."
Another minor inaccuracy occurs: The opinion says
"Miller took without actual knowledge of any defenses as between his assignor and appellants." (Emphasis added.)
From the opinion it appears that this is not a case which involves a defense by the appellant against the assignor, Blatchley, which under Sec. 104-3-2, the assignee Miller would be subject to, because it is a matter of doing equity and equity does not recognize a matter not arising after or out of the title purchase, nor do I think would equity in any case be bound to follow that statute. Section 104-3-2 covers the case where one has a claim or right against another which he assigns to a third. In this case there was no contractual relationship between the plaintiffs and Blatchley as far as Blatchley's interest in the property was concerned.
For the reasons herein stated, I concur in the result and in the reasoning supporting that result insofar as I have indicated. *Page 273