TOPEKA COMMERCIAL SEC. CO. v. McPHERSON

TOPEKA COMMERCIAL SEC. CO. v. McPHERSON
1898 OK 105
52 P. 395
Case Number: ___
Decided: 02/18/1898

Supreme Court of Oklahoma

TOPEKA COMMERCIAL SECURITY CO. et al.
v.
McPHERSON et al.

SYLLABUS

¶0 The law of this territory which provides for the taxation of lots not deeded, which is held to designate that species of property which an occupant of a lot upon a government town site in this territory has in the lot and its improvements, after entry of the land at the government land office, and its segregation from the public domain, is not in violation of those parts of the organic act of this territory which provides that no law of the territory "shall be passed interfering with the primary disposal of the soil," and "no tax shall be imposed on the property of the United States," and such property is subject to taxation under the territorial law, and the holder of a valid tax deed, transferring to him the property, in payment of delinquent taxes levied upon such lot, holds title paramount to that granted the heirs of the occupant whose property has been sold and conveyed for taxes.

Tarsney, J., dissenting.

Error from district court, Oklahoma county; before Justice J. R. Keaton.

Action was brought by the Topeka Commercial Security Company against J. B. McPherson and others, as heirs at law of Samuel McPherson, deceased, to recover lot 29, block 23, in Oklahoma City, plaintiff alleging title under tax deed. The right to tax the property being disputed, the board of county commissioners of Oklahoma county was made defendant. Judgment was awarded Mrs. J. B. McPherson and the other heirs, quieting their title, and declaring the tax deed void, and in favor of this security company for taxes paid, with interest. Costs also were assessed against the company. From this judgment plaintiffs in error appeal. Reversed.

J. Milton, for plaintiff in error Topeka Commercial Security Co.

W. R. Taylor, Co. Atty., for plaintiff in error board of county commissioners. H. H. Howard, T. J. Chambers, and Selwyn Douglass, for defendants in error.

BIERER, J.

¶1 This case was tried upon an agreed statement of facts, from which it appears that Samuel McPherson settled upon and occupied the lot in question, which is a part of the government town site of Oklahoma City, in Oklahoma county; that on the 1st day of October, 1890, the lands comprised within the Oklahoma City town site were conveyed by patent to three town-site trustees for the use and benefit of the occupants of said town site, as provided by the act of May 14, 1890; that Samuel McPherson made an application for a deed to this lot, which was contested by one John Patterson, and this contest was not finally disposed of until in January, 1896; that on the 31st day of January, 1896, Samuel McPherson having in the meantime died, the trustees of the town site executed a deed to said lot to the heirs of Samuel McPherson, deceased; that on the 31st day of October, 1892, this lot was sold for taxes for the year 1891, and the plaintiff the Topeka Commercial Security Company became the purchaser at said tax sale; and that on the 26th day of December, 1895, the lot was, by the treasurer of said county, deeded to the plaintiff for the taxes of the year 1891, and subsequent taxes for the years 1892 and 1893. It was further stipulated in the agreed statement of facts that the only question to be determined by the court was as to whether said lot was subject to taxation during the year 1891 and during the pending contest, and this is the only question that is presented by counsel in the case in this court. The question as to whether town lots in a government town site, which had been duly entered at the land office by the trustees, but where the trustees' deed had not been issued to the beneficiaries under the trust, were subject to taxation, was before this court in the case of Territory v. Clark, 2 Okl. 82, 35 Pac. 882, and there it was held that by virtue of the statutes of this territory such property was subject to taxation. It was there said: "These lots are private property. They are liable to execution for debt. They are a valuable property of which the occupant under the land laws is the owner, but has not the legal title. Why should such property be exempted from taxation? We can see no reason, nor do we believe the legislature saw any, or intended so, for their enactments exhibit an entirely different intent." It is true that in that case the specific argument now urged upon us was not presented to the court, and what was there said was stated in support of the decision of the court that the legislature, in the statute which we were construing, meant to tax this species of property. What was there said by the court was supposed then to be so well understood by the bench and bar, as being the law, as to require no authority to support the declaration. The trial court has, however, in this case, taken a different view of the law, and has held adversely to the conclusion of the court reached in that case, and it is now urged that that case only determines the proper construction that should be placed upon the sections of the revenue law of this territory under consideration, and that this revenue law which provides for taxing these lots is void, because in contravention of portions of section 6 of the organic act of this territory. The portions of the organic act which it is claimed this revenue legislation violates are: "That the legislative power of the territory shall extend to all rightful subjects of legislation, not inconsistent with the constitution and laws of the United States, but no law shall be passed interfering with the primary disposal of the soil; no tax shall be imposed on the property of the United States." We are not shown, either in the brief or argument of counsel for defendants in error, in what way the taxing of these lots by the authorities of the territory has interfered with the primary disposal of the soil of these lots, nor how the enforcement of the revenue law of this territory has imposed a tax on the property of the United States. It does not appear that what has been done by the territory in this regard has in any way interfered with the government's disposal of this soil, nor that the government has paid, or been asked to pay, any tax whatever upon this lot, or any government property therein. The only complaint that is made against the taxation sought to be enforced is presented by those who, under the law, have succeeded to the property rights of Samuel McPherson, deceased, the original occupant of the lot, and they complain, it seems to us, not because, indeed, any rights of the government, which the territory, in the organic act, was denied the right to infringe, have been interfered with, but because their property has been taxed; and even while asserting this claim they assert that they and their ancestor have been the owners of this property by virtue of settlement, occupancy, and improvement, and the grant of the United States, since long prior to the time the taxation which resulted in the tax deed was begun. But it is strenuously contended, however, by counsel, that the law of this territory providing for the taxation of these "lots not deeded" upon a government town site does interfere with the primary disposal of the soil by the United States, and, if valid, it imposes a tax upon the property of the United States, and they base this contention on the authority of the following decisions: McDaid v. Oklahoma, 150 U.S. 209, 14 Sup. Ct. 59; Railway Co. v. Prescott, 16 Wall. 603; Railroad Co. v. McShane, 22 Wall. 444; Northern Pac. R. Co. v. Rockne, 115 U.S. 600, 6 Sup. Ct. 201; Oklahoma City v. Hill, 6 Okl. 114, 50 Pac. 242. These are all the authorities cited by counsel in support of their claim. Counsel assert that the McDaid Case has settled the question of the relation of the government to these town sites, and that, although the government has issued its patent to the trustees, the title still remains, in a manner, in the government; and that, applying the principle declared in these three railroad cases, until the trustees deed to the occupants the lots cannot be taxed. Whether the decision in the McDaid Case does settle the question of the government title to the land embraced within the patent to the town-site trustees, which under the act of May 14, 1890, conveys the title of the United States to the trustees "for the several use and benefit of the occupants thereof," need not now be discussed, for it is not necessary to the disposition of this case, and this decision is not to be taken, to any extent, as an authority on the question, for, even conceding that the trustees hold the title to the land of the town site for some purpose, or in some subordinate manner, for the government, while held in the larger and more comprehensive sense, as the law provides, for the use and benefit of the occupants, does this exempt the property of the occupants in the lots from territorial taxation? The three railroad cases cited from the United States supreme court all arose upon attempts of the states of Kansas and Nebraska and the territory of Dakota to tax the lands granted by the United States to the Kansas, Union, and Northern Pacific Railway Companies, and the grants contained conditions that the lands should not be conveyed to the companies until they had paid the costs of surveying, selecting, and conveying the lands into the treasury of the United States, and that, if the lands were not sold by the companies within three years, they became subject to pre-emption; and these cases hold that, where the patents were not issued, and the costs of surveying, etc., not paid, the states and territory could not tax the land so as to devest the government of title. The holding in the Prescott Case that this state taxation was illegal because it would defeat the purpose of congress to reopen the lands to pre-emption settlement on the contingency of the failure of the companies to make sale thereof within three years after the completion of the roads was overruled in the McShane Case, and the Rockne Case affirmed the law as declared in the other two, after the modification as made in the McShane opinion.

¶2 It will be observed that what the state and territorial governments sought to do in these cases was to tax the lands granted to railroads to which the government had issued no patent. The railroads had no possessory interests in the lands to be taxed, and the equitable and legal estate of the land itself, which was sought to be taxed, had its title in the government. Here an entirely different thing is sought to be done by the territory. It seeks to tax the "lots not deeded," which expression must be taken to mean, as the court has already taken it to mean, the property of an occupant of a lot in a government town site, entered under the act of congress of May 14, 1890, but to which the rightful occupant has not received his trustees' deed. The expression used by the legislature in designating this class of property is "lots not deeded," but it does not require any legislative declaration to inform the courts what that expression means. They are terms of common use, and designate a class of property that is common to the town sites of this territory, which have been entered under the town-site act of May 14, 1890. We must understand that the legislature did not mean that such lots were real estate, within the literal meaning of those words, otherwise there was no need of using this s?eparate designation for that class of property. We must also understand that the legislature did not mean, by declaring that "lots not deeded" should be subject to taxation, that the property of the United States might be taxed thereunder, for the very section preceding that in which these words are used declares that "property of the United States" shall be exempt from taxation. We must understand this language in the revenue law to comprehend the private property-the individual ownership-which the occupant of a town lot has in the lot, with its improvements and everything there unto pertaining, where the land embraced within the town site has been segregated from the public domain by an entry at the United States land office. The question, then, is, is the law which declares such property subject to taxation, and which provides the manner of the levy, and the method of the enforcement of the tax, void because in contravention of the provisions of the organic act above referred to? That the fact that title to lands which have been segregated from the public domain, and have become the subject of private entry and ownership, remains in the government, does not exempt such lands from state taxation, is not disputed by counsel. That question has been so often determined in favor of the validity of such a tax as to have long ago been put beyond dispute. See Carroll v. Soffard, 3 How. 441; People v. Shearer, 30 Cal. 645; Ross v. Supervisors, 12 Wis. 29; Stone v. Young, 5 Kan. 229; Witherspoon v. Duncan, 4 Wall. 210.

¶3 But it is contended that, inasmuch as the supreme court of the United States held in the McDaid Case that, while the title to the town site is conveyed by the government to the trustees for the occupying claimants, as the supervisory control of the lands is still in the government, to be exercised through the trustees, who are government officers, the property of the occupant in a town lot cannot be taxed. This contention is untenable, for the reason that it is the property of the occupant in the town lot, and not the title, which is taxed. The private property of the citizen may be taxed, even though the legal title to the land out of which he derives his property, or upon which his property may be located, is in the government. The question is not, what is his title? but what is his property? and may that property be made the subject of taxation? The property or right of an occupant of a government town site has several times been declared and defined by the supreme court of the United States. The town-site act of May 14, 1890, gives to the occupant of a lot on a town site the same right of property as was granted under the act of March 2, 1867, which was subsequently incorporated into section 2387 of the Revised Statutes. In both cases the land was to be entered for the several use and benefit of the occupants thereof, and it is specifically provided, among other things, in section 1 of the act of May 14, 1890, that the entry is "to be made under the provisions of section 2387 of the Revised Statutes, as near as may be." The difference between the act of May 14, 1890, and the prior town-site laws, contained in sections 2387, 2388, Rev. St., is not in the property interest of the occupant of a town lot, but in the manner of executing the trust which the grant provided for, the right of the occupant being in both cases the same. In the case of Hussey v. Smith, 99 U.S. 20, it appears that the lot in controversy was a part of Salt Lake City, the lands of which were entered under the act of March 2, 1867, as a town site. Smith had been for many years an occupant, and in September, 1868, mortgaged the lot. The entry of the lands was made by the mayor, under the law of Utah, in 1871. The mortgage given by Smith was foreclosed, and both he and the purchaser applied for a deed, and the supreme court held that the title was in the United States until the entry of the land, but that Smith could sell and convey the premises, and that Hussey, the grantee of the purchaser at the foreclosure sale, was entitled to a deed to the lot. The court there, in support of its holding that Smith had an equitable interest in the lot, which he could sell and convey, cited the case of Thredgill v. Pintard, 12 How. 24, the syllabus of which states: "Where a settler upon the public lands had a pre-emption right to them, and sold them to a person who again sold them to a third party, the original vendor has a lien upon the lands for the balance of the purchase money still due, and can enforce it by a bill in chancery, notwithstanding the vendee has taken out a patent in his own name under a subsequent pre-emption law." In the case of Stringfellow v. Cain, 99 U.S. 610, the right of the occupant of a town lot under section 2387 again came before the supreme court of the United States, which held that the right of the occupant descended, under the Laws of Utah, to his widow and children, and that it might be sold to pay the taxes which accrued after the death of the occupant, and to pay his debts incurred for improvements after his death, and also that the occupant of the lot could sell and convey his possessory rights therein before the lands were entered, and that the purchaser of the right of the deceased occupant from the administrator of his estate was entitled to a conveyance from the mayor, who held the title in trust for the occupants. In the case of Smith v. Sheely, 12 Wall. 358, Mr. Justice Davis, speaking for the court, used this language in describing the property right of an occupant of a town lot to which he had no deed: "It is insisted in behalf of the plaintiff in error that Reddick had no authority to make this deed in Mitchell's name, because the power under which he acted directed him to convey such title as Mitchell then had, which was only a possessory right. It is true that in February, 1857, when the power of attorney was given, Mitchell had not the legal title to the lot, but, as the mayor of Omaha conveyed it to him a short time afterwards, it is a fair presumption that he was, at the date of the execution of the power, one of the class of persons who were entitled to a deed from the mayor under the provisions of the town-site act of 1844. If so, he was to all practical purposes the real owner of the property, and intended that Reddick should sell and convey something more than a 'mere uncertain and shadowy right,' as the plaintiff in error claims." In the case before us, the land has been entered, and the law recognizes the property right which the occupant has therein, and declares that that property shall be subject to taxation.

¶4 This court has recognized the doctrine that an individual may have a beneficial interest in lands to which the government holds not only the legal, but the equitable, title. In the case of Bank v. Maddox, 4 Okl. 583, 46 Pac. 563, it was held that the relinquishment of a preference right of entry on public lands, and an agreement to sell personal property, such as a house, fences, and other improvements thereon, constituted a good and valuable consideration for a contract. In the case of Crocker v. Donovan, 1 Okl. 165, 30 Pac. 374, it is held that, under the section of the revenue act of the territory providing for the taxation of improvements upon the government lands, improvements made by homestead settlers on their claim may be taxed, and that this law of the territory does not violate the provision of the organic act now under consideration, prohibiting the taxation of property of the United States. And in the case of Bellinger v. White, 5 Neb. 399, it is decided that a homestead is liable to taxation as soon as the owner has a right to make final proof and complete his title, even though no final proof has been made, and no certificate issued. We cite this case to show how far the courts have gone in upholding the power of the state to tax the property of the citizen, where he may have no legal title to the property. We do not, however, mean to be understood as approving that case to the extent to which it goes, for the reason that there is nothing in this case that requires that. That question may be determined when it arises, if it ever does. The learned chief justice who wrote the opinion in the case of Crocker v. Donovan, supra, cited in support thereof the case of Forbes v. Gracey, 94 U.S. 762. This case was in point in principle there. It is squarely in point in principle and by analogy here, and must be taken as a judicial opinion of the highest character and of controlling importance in support of the right of the territory to tax the property of a town site in "lots not deeded." In that case the tax was, by the state of Nevada, imposed upon the proceeds of a mine, but it was resisted on the ground that the title to the land from which the mineral was taken was in the United States, and for that reason not liable to state taxation. The claim was made there, as it is made here, that the tax sought to be imposed upon the property was void, because levied on property of the United States. The tax was assessed quarterly upon the proceeds of the mine, and the law of the state provided that the tax should be a lien on the mine or mining claims. In deciding the case in favor of the validity of the state law authorizing such taxation, the court said: "The use of the words 'mines or mining claims' is evidently intended to distinguish between the cases in which the miner is the owner of the soil, and therefore has perfect title to the mine, and those in which the miner does not have title to the soil, but works the mine under what is well known in the mining districts, and what is, as we have said, recognized by the act of congress, as a mining claim. In the first case the statute makes the tax a lien on the mine, bec£use the title to the mine is in the person who owes and should pay the tax. In the other the tax is a lien only on the claim of the miner; that is, on his possessory right to explore and work the mine under the existing laws and regulations on the subject. Those claims are the subject of bargain and sale, and constitute very largely the wealth of the Pacific Coast states. They are property in the fullest sense of the word, and their ownership, transfer, and use are governed by a well-defined code or codes of law, and are recognized by the states and the federal government. This claim may be sold, transferred, mortgaged, and inherited without infringing the title of the United States. Why may it not also be made subject to a lien for taxes, and the claim, such as it is, recognized by statute, be sold to enforce the lien? We see nothing in principle, or in any interest which the United States has in the land, to prevent it." All the language used there with reference to the property of one working a mining claim and the right of the state to tax it may be repeated here with reference to the right of an occupant of a lot not deeded, upon a government town site, and the right of the territory to tax his property. It is property; it may be inherited; and has been so held by the courts. And it seems to us, too, very clear, that under a territorial statute specifically providing for the taxation of that kind of interest of the occupant in the lot, his right and his interest therein may be sold and transferred and disposed of, without impairing the title of the United States, and without laying any tax upon the property of the government. That private interests in government land may be taxed has also been affirmed by a uniform line of decisions in the state of California. In the case of State v. Moore, 12 Cal. 56, it is stated in the syllabus of the opinion that: "The interest of the occupant of a mining claim is property, and, under the constitution, it is in the power of the legislature to tax such property. The whole course of legislation and judicial decisions in this state, since its organization, has recognized a qualified ownership of the mines in private individuals. The term 'property in lands' is not confined to title in fee, but is sufficiently comprehensive to include any usufructuary interest, whether it be a lease-hold or a mere right of possession. Several persons may have in the same land a property which is subject to taxation." That case was one where the state sought to tax the interest of occupants of mining claims. The question later, however, came before the same court with reference to the right to tax the property of an occupant of agricultural lands under the laws of the United States, and in the case of People v. Shearer, supra, a very able and exhaustive opinion on the subject was delivered by Judge Sawyer, and approved by all of the other judges of the court except Judge Shafter, who, being interested in the question, did not participate. In that case it did not appear that the occupants had made payment for the lands, but it did appear that they had erected improvements upon the lands, and had been in the exclusive possession and enjoyment thereof for from 6 to more than 10 years, and that they were still in the poss¨ssion and enjoyment of the lands and the improvements, and exercising the act of dominion over them. The court said: "Does this relation to the land disclose any subject to taxation? The possession itself of the public lands and the improvements thereon, whether by naked trespassers or those who claim in addition a right of pre-emption as to everybody except the United States, have always in California, and in most, if not all, of the new states, been regarded as valuable property interests. The transfers of such possession and improvements have always been held to constitute a valuable consideration for a promise. The possessors often derive and enjoy large revenues from them. Contracts for such possession, and rights growing out of them, are constantly recognized, protected, and enforced by the courts, and in this state a very large share of the litigation in the courts maintained by means arising from taxation grows out of this very class of rights. The possession and interest of the possessors, whatever they may be, are constantly sold under execution, and under judgments foreclosing mortgages, and other liens; and the purchasers are put in possession, and protected in the enjoyment of the rights thus acquired. Such possession of the public lands and the improvements put upon them are, therefore, recognized and protected as a valuable species of property in the possessor." The court then proceeded to refer to decisions in other states, and quoted from the decision in Turney v. Saunders, 4 Scam. 531, and recurred to its own decisions, citing the case of State v. Moore, supra, and declared that the tax there held valid upon the possessory right in a mining claim did not conflict with the provisions of the act admitting California into the Union, which provided that the state of California "shall never lay any tax or assessment of any description whatever upon the public domain of the United States"; and the court then further said: "If that case was correctly decided, it must govern this, for there can be no distinction taken between the possession of a mining claim upon the public lands and the possession of a claim for agricultural purposes. The mining land and agricultural lands equally belong to the United States, and constitute a part of the public domain. *** This provision can have full effect by confining its operation to an exemption of the property interest of the general government itself, and it cannot be construed to limit the exercise of a sovereign power of the state over a citizen, or any property of a citizen, unless the intention to so limit it is clearly expressed." The court concluded the case by saying: "Thus we see that all property of every kind, nature, and description, both real and personal, within certain specified exceptions, is to be taxed. We have before seen that the possessions and claims of occupants of the public lands is a species of property having a real, substantial, and salable value, and many of them a very great value; and this act further expressly declares the possession of land to be property for the purposes of taxation, and that the claim by or possession of any person, etc., shall be listed under the head of real estate. It should doubtless be listed as 'the possession, interest, and claim of A. B. of, in, and to the tract of land described as follows,' etc., giving the appropriate description of the land. And the value of the possessory right should be set down, and not the value of the land itself. But the value should be estimated upon the same principles as the value of other property is estimated. We think the possessory interests of the settlers on the lands in question clearly embraced within the terms of the revenue act, and not included in the exceptions, and that it was the duty of the assessor of Marin county to enter them upon the lists."

¶5 This question has several times been before the supreme court of Nevada. In the case of Hale & N. Gold & Silver Min. Co. v. Storey Co., 1 Nev. 104, it was asserted that the tax assessed on the possessory right to a mining claim, the title to which was in the government of the United States, and to which the government had steadily refused to grant any kind of an estate to the miner, was void, because it was in contravention of section 6 of the organic act of the territory of Nevada, which, like the provision of section 6 of our organic act, prohibited the imposing of a tax on the property of the United States. Concerning these "mining claims," and the right of the territory to tax them, the court said: "Here the policy of our government has been peculiar. Owning vast bodies of mineral lands, it has encouraged the working of those mines by its citizens, but has steadily refused to make a grant of any kind of estate to the miner. Individuals have made large investments in mines and improvements, whilst the entire estate in the lands remains in the government. The government could not, like an ordinary proprietor, protect its licensees by the institution of suits against trespassers. From the necessity of the case, these licensees (we think they come nearer licensees than tenants) must have legal protection. The courts and the laws adapting themselves to the necessity of the case, and governed by rules of common sense, reason, and necessity, have universally treated the possessory rights of the miner as an estate in fee. Actions for possession, similar to the action of ejectment, actions of trespass, bills for partition, etc., are constantly maintained. Such interests are held to descend to the heir, to be subject to sale and execution, and to be assets in the hands of executors and administrators for the payment of debts. This general proposition will hardly be disputed: that a territorial legislature may tax any species of property, whether real, personal, or mixed, corporeal or incorporeal, so far as they are not restrained by the organic act. It appears strange to us that that which is so far property as to be subject of litigation in an action wherein the judgment, if for plaintiff, is for restitution of possession, is so intangible, when you come to enforce collection of revenue, that it cannot be reached by process of law." In Wright v. Cradlebaugh, 3 Nev. 341, the majority opinion of the court, while holding that the taxation of a town lot, on entered land, in that case was void, because the fee-simple title, which was yet in the government, as well as the possessory right of the occupant, was assessed, holds that: "The government has adopted the policy of throwing open her lands to settlement and occupation by her citizens generally, and has recognized the right of all such settlers to purchase the government title under prescribed rules. Now, although the government title may be free from taxation, it by no means follows that the possessory right of the occupant is also free. Indeed, it has been repeatedly held in this and neighboring states that such possessory rights are subject to taxation. See Hale & N. Gold & Silver Min. Co. v. Storey Co., 1 Nev. 104." And in the separate opinion of Justice Johnson, which is much the more sound and forcible opinion in the case, and in which he held the tax deed void, not because of the technical failure to return in the tax statement that only the possessory claim of the occupant was assessed, but because a lot and a part of another lot were jointly assessed, in violation of a law of that state on the question now before us, he said: "Our revenue laws in no respect contemplate the taxation of the government title to the public domain, but, on the contrary, have expressly forbidden it. Yet the right to impose a tax on the possession of individual claimants to such lands is equally as distinctly asserted by these laws,-a right so universally upheld by judicial authority at the present day as to have become an established and recognized principle of law."

¶6 Another provision of our organic act is that (section 6) "all property subject to the taxation shall be taxed in proportion to its value," and the legislature of the territory has, as the legislature of the state of California had done, provided that this kind of property should be taxed, and the supreme court of that state, in the later case of People v. Black Diamond Coal Min. Co., 37 Cal. 54, affirmed its decision in the case of People v. Shearer, and held that the possession and claim to public lands of the United States are property subject to taxation, without violating the law of congress above referred to, and that an earlier act of the legislature of that state, which exempted such possessory claims and improvements upon the public lands from taxation, was void, because in violation of the provision of the state constitution that "all property of every kind and nature whatever within the state shall be subject to taxation, except" certain specified property, which did not include this class, thus holding not only that such possessory estates were taxable, but that it was unconstitutional to attempt to relieve them from taxation. And we might here suggest that a much more serious question might be now presented if the legislature had failed to tax such property as that possessed by the antecedent of the defendants in error, than that which is now presented by the enforcement of the act of the legislature which does make such property subject to taxation. This class of property being subject to taxation, and the organic act declaring that "all property subject to the taxation shall be taxed in proportion to its value," it might, it seems to us, present, indeed, a very serious question if the legislature had sought to relieve it from taxation. It may be, in such a case, that the payers of taxes upon other kinds of property might urge with much force the claim that they were being unjustly discriminated against by the placing of heavier burdens upon their property by releasing from taxation this species of private property. And this question would not be a mere abstract one, unsupported by the substantial manner in which it would affect the exercise of the sovereign power of taxation, and the enforcement of the other laws of the territory, to give it merit, for this class of property has, during the early years of the development of "Old Oklahoma," and the land embraced in what was the Cherokee Strip, constituted an important part of the assessment for taxation of each year, and large amounts of taxes have been collected on such assessments, and large amounts yet remain to be collected. Of course, we do not decide, and we are not deciding now, that such contentions of such taxpayers would be sustained, but we do suggest the difficulties that might arise by failing to do exactly what counsel for defendants in error contend the legislature had no power to do; and the questions presented by such failure, we believe, would be far more serious than that presented to the court now for its determination.

¶7 Counsel for defendants in error further contend that the taxation of such property cannot be permitted, because, when the payment of the tax was enforced by the issuance of a tax deed, the tax deed, if valid at all, must, of necessity, convey the entire title to the property, and that this would cut off the right of the trustees, who are officers of the government, to enforce the payment of the assessment made against the lot to cover the purchase price of the land, and the costs of surveying, and other expenses of administering the trust. The fallacy of this argument is in the assumption that it is necessary that an absolute title be transferred by a tax deed. That is no more necessary than that an absolute title be transferred in conveying any other interest in property by an individual or an officer. It is no more absolutely necessary that a tax deed transfer the entire estate and title in property than it is than an individual transfer an entire interest which he may possess. The territory no more necessarily grants absolute title to real estate to which it conveys an interest than that a sheriff conveys the absolute, unimpeachable title to property named in his deed. A tax deed, if properly executed, conveys only what the law provides shall be conveyed by it. It conveys the property which the law provides shall be sold for the nonpayment of taxes. In this case the law provides that it is "lots not deeded" that shall be assessed, and this must be taken as the interest in the property which the legislature intended should be conveyed by the tax title. The sovereign authority granting a tax title does not warrant the title to land sold for taxes, and the purchaser buys at his own risk. Carroll v. Scoffed. supra. In the case of People v. Commissioners of Taxes and Assessments of City of New York, 82 N.Y. 459, it was held that the foundation, superstructure, and columns of the railroad might, by statute, be assessed as real estate, although the company held no title in fee to the land to which they were affixed. Cooley, Tax'n, p. 367, says on this subject: "When land purchased of the United States or of the state has been paid for, or when the right to a complete title has in any way been acquired, it is proper to tax the party who is then, in contemplation of equity at least, the real owner, for the land as land; but the state may provide by law for taxing improvements as such, though made upon government lands; and it is entirely competent to provide for the assessment of any mere possessory right in lands, whether they be lands owned by private individuals or by the government, as well as any inchoate title to land which has been bought and paid for in part. It is to be understood, however, that, while the statute might treat the interest assessed as either real or personal, no greater interest could be sold for the tax than the person taxed was entitled to." See, also, Black, Tax Titles, §§ 419, 423. This tax deed to plaintiffs did not, in contemplation of law, as it did not in fact, transfer to the holder of it anything beyond the property which the person assessed with this tax possessed: nor did it interfere in any way, in contemplation of law, as it did not in fact, with the trustees proceeding to convey title to the occupant of the lot the same as they would have done had the tax been levied. And there can be no doubt that, before the purchaser of this tax title would have had a perfect title to this lot, it would have been necessary for him, or, in this instance, this company, to have paid the assessment made by the trustees upon the lot. When, however, the heirs of the original occupant, who owned the possessory right and beneficial interest in the lot at the time of the assessment of the taxes, saw fit to take out the trustees' deed, that deed vested the legal title in the party who before had possessed the equitable title in this lot, and that estate had been transferred, by virtue of the sale of the property for taxes, to the plaintiff, who now holds the title by virtue of his tax deed. The result would have been the same, exactly, if the plaintiff had paid the assessment and taken out the trustees' deed instead of the defendants.

¶8 Counsel refer to the case of Oklahoma City v. Hill. 6 Okl. 114, 50 Pac. 242, decided at the last term of this court, wherein we held that the secretary of the interior must, under section 4 of the town-site act of May 14, 1890, first make an order that undisposed of lots be reserved for public purposes for the use of the city for public buildings or for other public uses, before the trustees would have power to convey the lot to the city for the benefit of the municipality; and counsel state: "Taking that case for an example, would a tax deed issued pending the determination of the appeal have taken away from the secretary the right after having decided that Hill Bros. were sooners, to dispose of the lot for public purposes?" We answer the question, certainly not, for the reason that the tax deed in such a case would have been based upon nothing, of which the tax deed purchaser would, under the law, have been required to take notice, for he, as we have observed, buys at his own risk. In such a case the tax deed would have conveyed nothing, because there was nothing to tax. The secretary of the interior, under section 4, can only convey to the city for public uses undisposed of lots,-that is, lots that have no occupant, or upon which the occupant has failed to perform the things the law requires to be done. If there is no occupant of the lot at the date of the town-site entry, then there is no possessory right of an occupant to a lot, and there is no such property as comes within the specification of the class of property included within "lots not deeded." And, if the municipal authorities attempt to assess property of this character that does not exist, the attempt would be futile, and the effort to create a lien thereon would fail, and the purchaser would take nothing by his purchase. Of course, it cannot be determined, whenever the question is raised, whether or not a person is a legal occupant of a lot, until the matter has been passed upon by the interior department, and a person who takes a tax title to a lot not deeded takes the chance that a vendee would, by any other purchase of such lot, that his title may be rendered worthless by an adverse decision of the tribunal which congress has provided to try such questions; just the same chance the tax purchaser of land entered under the homestead law before any kind of a patent has been issued by the government, by a cancellation of the final entry, and the refusal of the government to patent the land. If it is determined by the secretary of the interior, upon a proper contest, that the occupant, or all the legitimate occupants of a town lot, are incapable of acquiring the government title, that they were not occupants of the lot at the date of the entry, then it is simply determined that there was no occupancy right there to tax, and, the tax proceeding having been a mistake, the tax title has failed by virtue of that mistake, the same as it may, under the law, by virtue of many others. Our conclusion is that the act of the legislature providing for the taxation of lots upon a government town site, after the entry of the lands for town-site purposes, and after they have ceased to be a part of the public domain, is valid, and that the plaintiffs, having a tax title that is unquestioned upon any other ground than the alleged want of power of the territory to tax such property, are entitled to recover the lot in question upon their tax deed, and that the judgment of the court below must be reversed, and remanded, with directions to enter judgment for the plaintiffs upon the agreed statement of facts.

All the justices concurring, excepting KEATON, J., who tried the case below, not sitting, and except TARSNEY, J., dissenting.