McNaughton v. Beattie

I agree with the conclusion that the tax deed is valid, but cannot agree with the rule of law stated in the fourth paragraph of the syllabus, nor with the reasoning in the majority opinion which is relied upon to restrict the estate conveyed by the deeds here involved.

I think the majority opinion and the rule therein stated is in direct conflict with our statute (section 9746, C. O. S. 1921, 12756 O. S. 1931, 68 Okla. St. Ann. 415) which in plain terms fixes the estate which passes by a valid tax deed, and is also in conflict with former expressions of this court in the following cases: Swan v. Kuehner, 157 Okla. 37, 10 P.2d 707; Taylor v. Lawrence, 176 Okla. 75, 54 P.2d 634.

And since the statute so plainly fixes the estate that shall pass by valid tax deed, I think this court exceeds its power in restricting the estate passing by a valid tax deed as is done by the majority opinion. While this court has the power and duty to construe ambiguous statutory provisions, it is my view that we have no duty but to follow an unambiguous provision of the statute.

We have heretofore cited and followed the statutes in the two decisions above cited. In Taylor v. Lawrence, supra, this court considered a title taken by the county at tax resale and thereafter conveyed by deed from the county commissioners as in the case at bar. In that case this court, speaking through Mr. Justice Corn, said:

"The title taken by Creek county under this resale deed was a virgin title comparable to a patent from the government, unaffected either for good or ill by anything pertaining to the former chain of title."

And the following rule was stated in paragraph 2 of the syllabus, to wit:

"The purchaser at a valid tax resale procures a title to the real estate from the government which is free and clear from any former right of any former owner of the real estate."

And after citing numerous decisions from other states, it was further said in the body of the opinion:

"There are no cases to be found taking any contrary view to that expressed above. This court is fully in accord with the rule therein as shown by the following language from Swan v. Kuehner, 157 Okla. 37, loc. cit. 47, 10 P.2d 716: "The purchaser at a valid tax resale procures a title from the government which is free and clear from any former right of any former owner of the real estate'."

The majority opinion relies principally upon the former decision in Meriwether v. Lovett, 166 Okla. 73, 26 P.2d 200. I do not find in that opinion any justification for the conclusion here reached. In that case Meriwether held a tax sale certificate which was issued and came into his hands by reason of the fact that the surface owner failed to pay his ad valorem taxes, while another person by proper conveyance owned the mineral rights and the land was producing oil. Meriwether sought a tax deed and served notices on the delinquent surface owner, and also upon the owner of the mineral rights. It was there held that Meriwether was not entitled to the tax deed as against the owner of the oil rights who had paid his gross production tax. However, it was strongly emphasized that the ownership of the mineral rights was separate from the ownership of the surface or remaining fee title, and it was there apparent that to hold otherwise would result in grievously penalizing the owner of the oil rights for the default of another. While it was held in that case that the tax sale and tax deed would not pass title to the separately owned mineral rights, that rule was made to depend upon a situation of separate ownership as there existing. The rule in that case is stated in paragraph two of the syllabus which opens with these words:

"Where the surface of land and the mineral rights are separately owned and after discovery of oil or gas and while same are being produced therefrom. * * *"

The headnote to that decision prepared by the editorial staff for publication in the Pacific Reporter states the rule of that case in this language:

"Where surface of land and mineral rights are separately owned, tax deed issued pursuant to levy of ad valorem tax on land after discovery and production of oil or gas and payment of gross production tax does not convey mineral rights in land. (St. 1931, sec. 12434.)"

I think it is plain that the separate ownership existing there was the basis for the rule stated in Meriwether v. Lovett, supra, and that every one examining that decision for annotation or publication or for use as a precedent should be led to the same conclusion. There is no such separate ownership in the case at bar, and therefore it is my view that the rule of the Meriwether Case has no application.

Under the rule of the majority opinion the valid tax deed does not convey the fee-simple title as provided by statute, and it is not possible to ascertain from the county records what title is conveyed. The rule in the Meriwether Case, while restricting the estate conveyed by valid tax deed. Yet leaves it possible for one to ascertain from the county records what title is conveyed by the deed, because the county records would disclose the separate ownership of the mineral rights.

In the instant case the one owner of both the land and the oil rights, by payment of a very small gross production tax on oil produced from one very small well, though delinquent in payment of the ad valorem tax on the entire tract of land involved, is permitted to restrict the estate conveyed by valid tax deed, contrary to express statute. I cannot agree that this is correct. I think a landowner who elects not to pay his tax, must suffer the full penalty exactly provided for by statute. If a property owner will not bear his fair share of the cost of government by paying his ad valorem tax, then the person who does pay them in the manner provided by law is entitled to the benefits which are given him by specific statutory provisions, and it is my view that this opinion wrongfully deprives the deed holder of benefits which are so specifically given him by statute. I can find no justification, for the majority opinion in the statutes or decisions cited, and therefore respectfully dissent.