Franklin Building & Loan Co. v. Peppard , 97 Utah 483 ( 1939 )

I concur, but I think the result may be reached by holding that after respondents' interest in the Workman mortgage was foreclosed in 1928 without redemption as found by the court, and which finding is conclusive, the respondent was a stranger to the title. Hence, payment of taxes, while a stranger to the title, cannot be recovered. I think it unnecessary to enter into the question of whether the Workman mortgage was valid, or not, or what were respondents' rights under it, if any, in the foreclosure of the mechanic's lien suit. It will be noted that Section 18-8-5, R.S.U. 1933, does not forbid an unqualified corporation from defending, except where the defense involves asking for something on a counterclaim or cross complaint, themselves a species of suing, prosecution, or maintaining an action or proceeding. There is nothing in the section which prevents a non-qualifying corporation from defending in an action where another seeks recovery on an interest, claim or demand arising out of a contract, agreement or transaction made with such corporation, excluding of course the right to defend on the ground that the contract was void because one of the parties was a non-qualifying corporation. The statute was meant to withhold from non-qualifying corporations the right to use the courts to enforce or assert a claim. Although the non-qualifying corporation may not resort to the courts to enforce a claimed right, it still may defend itself against such claim by another, except that it may not set up its own failure to qualify as a basis of its defense. But I think any exploration into the effect of Section 18-8-5 unnecessary. It is only because the opinion states that respondent "could not set up in any court of this state or sue or defend [italics added] on such mortgage or on any claim, interest, or demand arising, or growing out of, or founded on such mortgage or contract", that I make the above observations.

While I think in this case the respondent was a stranger to the title in 1931 and 1935 when it paid the taxes and thus paid them as a volunteer, at this time I would not like to commit myself as to whether a party in the position of Westover in case of Stanley v. Westover, 93 Cal. App. 97, 269 P. 468, considered in the case of McMillan v. O'Brien, 219 Cal. 775,29 P.2d 183, 91 A.L.R. 383, and quoted from in the main opinion would be entitled to reimbursement. While one paying taxes under a pure misapprehension or mistaken idea that he was owner would be paying as a volunteer, I had the idea that one paying under color of title or right would be protected in payment of taxes where ousted by another, even though it turned out that the former had no right whatsoever. I do not care at this time to say whether the case of Stanley v. Westover, supra, is law in this jurisdiction because I do not think it necessary. While I doubt if the main opinion intends to lay down any law in respect to the matter touched on in the reservations of this concurring opinion, I write it for the purpose of stating my position quite plainly.