Fisher v. Wright , 101 Utah 469 ( 1942 )

I concur. The result in this case seems inevitable despite the unfortunate position in which Mr. Fisher finds himself. He has purchased land at a tax sale and finds he has acquired no title. In a former suit by the Wrights to quiet title against Fisher, the latter after two amended affirmative answers claiming title in him by virtue of a tax deed, filed a third amended answer in which in effect he confessed the weakness of his tax title and asked for reimbursement for money paid to the county for taxes, interest and penalties. It is alleged that the Wrights then stipulated that their action might be dismissed and Fisher could foreclose "his lien on the said lands for the taxes in the manner provided by law." Fisher is now in this suit attempting to do this. I think the inconsistencies in the complaint adverted to in the court's opinion may be ignored. Both parties treat the action as one to foreclose a lien in favor of the plaintiff for the purchase price he paid to the county for tax deed, plus subsequent taxes paid. I fear he has no lien. If he is attempting to foreclose under Sections 80-10-41 to 46, R.S.U. 1933, the answer is that such right, whichever its nature, is one given only to the county. It is somewhat difficult to see where any action giving the county a right to foreclose a tax lien has any office. Sec. 80-10-1, R.S.U. 1933, provides that a tax shall remain a lien until the tax is paid or "the property sold for the payment thereof." When property is by valid tax sale sold to the county the lien would no longer seem to be in existence by virtue of the very implication of sec. 80-10-1. And the issuance of a valid auditor's deed would not affect the matter of lien if the county already had the title subject to redemption. It may be wondered, therefore, what office has a statute permitting the county to foreclose a tax lien when the county already has the title to the property free of lien. However a situation may possibly arise where the county may have the right to cut the owner's right of redemption. Such may really be the office of sec. 80-10-1. If the proceedings leading up to the sale are invalid there remains the question of whether as of the first day of January of each year there may not at least be an inchoate lien under section 80-10-3, R.S.U. 1933, which blossoms into a full lien, at least on the occasion of a valid tax levy. Therefore, in such case where the tax may not have been valid we have the question of what lien, or in other terms, what right of resort to the property resided in the county which under section 80-10-4 could be foreclosed. In any event, such right as it may or did have was not transferred to the plaintiff Fisher by the sale to him. The lien of the county cannot be assigned.Sorensen v. Bills, 70 Utah 509, 261 P. 450.

Did any lien for purchase price to the county exercisable against the owner arise by reason of his having bought the property from the county and by reason of his having subsequently paid taxes? While some of the states give such lien ours does not. We still have the rule of caveat emptor as applicable to the purchase at a tax sale or at a sale from the county after the county has ostensibly obtained the property. While the getting of tax acquired property back into the hands of taxpayers might be sufficient consideration to induce a policy of encouraging the purchase of such property by assuring purchasers that at least they would be secured in the money laid out to the county and subsequent taxes, such is a matter not for judicial but legislative interposition.

The right of a court to grant relief to an owner suing to quiet his title only if he pays to the purchaser of the tax title the outlays of the latter is founded on the principle that "he who seeks equity, must do equity." See Coughlin v. City ofPierre et al., 66 S.D. 523, 286 N.W. 877, 878; Holland v.Hotchkiss, 162 Cal. 366, 123 P. 258, 261, L.R.A. 1915C, p. 492. In the latter case appears this language:

"The confusion thus apparent seems to have arisen from the failure to observe the difference between the cases where the tax purchaser is the actor and those in which relief in equity is sought against him. If the purchaser, claiming title under his tax deed, sues for possession of the land, or if, perceiving that the deed is invalid, he sues the owner to recover the tax paid, as money paid to his use, the general rule is that he cannot prevail, that the rule of caveat emptor will be strictly applied against him, * * *."

And again:

"The doctrine is thus stated in Cooley on Taxation: `The rule of caveat emptor applies to tax-purchasers. The purchaser at a tax sale will therefore lose what he had paid if his deed is subject to fatal infirmity. This is the rule unless the statute recognizes an equity in him and provides for it. * * * Unless the statute in terms gives it, the purchaser will have no lien on the land for the sum paid on the purchase.' [Vol. 2], Pom. Eq. Jur. p. 1017. The author here speaks concerning rights which the purchaser can enforce by action, not of limitations in equity upon the right of the owner to sue for a cancellation of the sale or deed. As to the latter, he says: `In vacating a tax or a sale for taxes as a cloud upon title, it is proper to require the complainant to pay any sum that is either a legal or an equitable charge against him, and which will be affected by the decree. And this will be required, although an action against him for such sum would be barred by the statute of limitations. If the tax were wholly illegal in its essentials, of course, no such requirement could be made, for it would not be supported by any equity.' 2 Pom. Eq. Jur. p. 1455."

The case of Shipp v. Sheffield, 101 Utah 54, 117 P.2d 996,997, does not hold that the purchaser has a lien. It merely states: "In so far as any tax liens may exist, if there areany," etc. (italics added), thus leaving the matter undecided and in doubt. The Shipp case holds that Fisher, if he concludes to cease paying taxes, cannot, therefore, require payment of that which he has paid, against the Wrights or their grantees. If he concludes to continue to pay taxes he may have to wait indefinitely for the Wrights again to become the actors as they were in the previous suit. His dilemma is perplexing but we are unable to help him. Nor can the fact that the Wrights stipulated that he could foreclose "his lien on said lands, for the taxes in the manner provided by law," help him when he has no lien to foreclose nor any manner provided by law for foreclosing a lien which does not exist. For the above reasons I concur.