JACKSON, Justice.
This is an appeal by plaintiff from order of the trial court granting new trial to defendants in a quiet title action tried to the court. Plaintiff’s title is based on a deed from the County Commissioners of Tulsa County, Oklahoma, dated May 20, 1935, and filed of record June 8, 1935, and actual possession by plaintiff since that date. The land in question had been acquired by the county in 1927 by resale tax deed covering allegedly delinquent ad valorem taxes for the years 1912-1926, inclusive.
Plaintiff’s action was commenced on January 28, 1950.
A cross-petition was filed on March 24, 1950, by certain defendants, as sole surviving full-blood Creek Indian heirs of Eliza Tiger, a full-blood Creek Indian allottee who died before receiving the allotment covering the land in question. The position of these defendants is that the land was restricted and non-taxable, during the years 1912-26, and that, therefore, the aforementioned tax resale deed and the County Commissioner’s deed under which [575]*575plaintiff claims title are void, and should-be cancelled.
The trial court rendered judgment for plaintiff in 1955, and in 1957 granted defendants a new trial, from which order plaintiff appeals. In the order granting new trial appears the following:
“ * * * the court announced that its judgment had been rendered upon a question of fact as to the statute of limitations, but since said judgment the court in the interim had reviewed the record upon the point and had concluded the court was in error upon such point as a question of fact, and for such reason desired to hear argument first from counsel for plaintiff and interve-nor, and having heard argument of counsel for the parties present and being fully advised in the premises concludes and determines as a question of fact that statute of limitations applicable had not run, * *
The questions presented on this appeal are:
1. Was the land in question restricted Indian land and non-taxable during the years 1912-26?
2. Did the trial court err in holding that defendants’ cross-petition attacking plaintiff’s deed and the tax resale deed was not barred by limitations ?
The determination of the first question hinges upon the interpretation of two Congressional enactments, the Act of April 26, 1906, 34 Stat. 137, and the Act of May 27, 1908, 35 Stat. 312.
Section 22, Act of April 26, 1906, 34 Stat. 137, 145, provides:
“That the adult heirs of any deceased Indian of either of the Five Civilized Tribes whose selection has been made, or to whom a deed or patent has been issued for his or her share of the land of the tribe to which he or she belongs or belonged, may sell and convey the lands inherited from such decedent ; and if there be both adult and minor heirs of such decedent, then such minors may join in a sale of such lands by a guardian duly appointed by the proper United States court for the Indian Territory. And in the case of the organization of a state or territory, then by a proper court of the county in which said minor or minors may reside or in which said real estate is situated, upon an order of such court made upon petition filed by guardian. All conveyances made under this provision by heirs who are full-blood Indians are to be subject to the approval of the Secretary of the Interior, under such rules and regulations as he may prescribe.” (Emphasis added.)
Section 9, Act of May 27, 1908, 35 Stat 312, 315, provides:
“That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee’s land; Provided, That no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee: * * *." (Emphasis added.)
The United States Supreme Court, in considering the Act of May 27, 1908, in Parker v. Richard, 250 U.S. 235, at pages 238-239, 39 S.Ct. 442, at page 443, 63 L. Ed. 954, said:
“By the act of 1908, which imposed the restrictions on alienation and contained the leasing provision, Congress further declared, in section 9, ‘that the death of any allottee * * * shall operate to remove all restrictions upon the alienation of (the) allottee’s land: Provided, that no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee.’
“In the absence of the proviso it would be very plain that, on the death of the allottee all restrictions on the [576]*576alienation of the land allotted to him were removed. But the proviso is there and cannot be disregarded. It obviously limits and restrains what precedes it. In exact words, it puts full-blood Indian heirs in a distinct and excepted class and forbids any conveyance of any interest of such an heir in such land unless it be approved by the court named. In other words, as to that class of heirs the restrictions are not removed but merely relaxed or qualified to the extent of sanctioning such conveyances as receive the court’s approval. Conveyances without its approval fall within the ban of the restrictions. * * *.
“In cases presenting the question whether lands inherited from allottees by full-blood Indian heirs are freed from restrictions by section 9, and thus brought within another provision in the same act declaring that land ‘from which restrictions have been or shall be removed’ shall be taxable and subject to other civil burdens, the Supreme Court of the state and the federal court of that district have both held that under the proviso such land remains restricted in the hands of the full-blood heirs, and so is not within the taxing provision. Marcy v. Seminole County, supra; United States v. Shock, 10 Cir., 187 F. 870.
“Entertaining a like view of the proviso, we conclude that the land covered by the lease is still restricted land.”
We held, in Tiger v. Lozier, 124 Okl. 260, 256 P. 727, that the County Court, in approving such alienation, acts as a Federal instrumentality.
In United States v. Shock, 10 Cir., 187 F. 870, 872, the court said:
“ * * * the question as to- whether, on March 1, 1909, the lands referred to by the demurrer were taxable, depends upon whether they were alienable without restriction. By section 19 of the Act of April 26, 1906, c. 1876, 34 Stat. 144, all lands from which restrictions were removed were made subject to taxation. By the same act, section 22, the adult heirs of any deceased Indian of either of the Five Civilized Tribes, were permitted to sell lands inherited from such decedent. Full-blood heirs were permitted to sell with the approval of the Secretary of the Interior. This amounted to a removal of restrictions from lands inherited by adult and minor heirs less than full-blood, and such lands thereby became taxable without regard to the degree of blood of the Indian ancestor.” (Emphasis added.)
In United States v. Bean, 10 Cir., 253 F. 1, the United States brought action to prevent the county treasurer of Seminole County, Oklahoma, from selling or conveying certain allotted lands formerly owned by the Seminole Nation or Tribe of Indians, on account of taxes levied thereon for the fiscal years of 1910, 1911, 1912, 1913, and 1914. At page 3 of the opinion, the court said:
“Were these inalienable lands of the full-blood Indian heirs taxable for the fiscal years 1910, 1911, 1912, 1913, and 1914? Counsel for the treasurer of the county argue that they were because Congress provided in section 19 of the Act of April 26, 1906 (34 Stat. 137) that ‘all lands upon which restrictions are removed shall be subject to taxation,’ and by the act of May 27, 1908 (35 Stat. 312), that ‘all lands from which restrictions have been or shall have been removed shall be subject to taxation and all other civil burdens.’ But this contention is overborne by the fact that by these very acts of Congress restrictions upon the alienation of these lands while held by full-blood Indian heirs were imposed, * * *. The lands of the full-blood Indian heirs were not lands from which restrictions had then been removed. They were lands upon which restrictions were imposed by these very acts, and it is not probable that the legislators intended ,to impose taxes [577]*577upon lands of Indians which the United States was holding for them, while it withheld from them the power of disposition, for such a course runs counter to its public policy and practice from the foundation of the government.” (Emphasis added.)
The court held that lands of full-blood Seminole Indian heirs, inalienable without court approval under Act April 26, 1906, c. 1876, Section 22, and Act May 27, 1908, c. 199, Section 9, were not subject to state taxation.
Plaintiff cites the cases of Mullen v. United States, 224 U.S. 448, 32 S.Ct. 494, 46 L.Ed. 834, Skelton v. Dill, 235 U.S. 206, 35 S.Ct. 60, 59 L.Ed. 198, LaMotte v. United States, 254 U.S. 570, 41 S.Ct. 204, 65 L.Ed. 410, and Stewart v. Keyes, 295 U.S. 403, 55 S.Ct. 807, 79 L.Ed. 1507, 1508, in support of his contention that the land in controversy was unrestricted and taxable.
The cited cases do not appear to be in point. In Skelton v. Dill and Mullen v. United States, the court considered acts of Congress, of June 30, 1902, 32 Stat. 500, and March 1, 1901, 31 Stat. 861, which are not involved in the instant case.
LaMotte v. United States, supra, involved Osage Indian land, under provisions of acts of Congress not involved in the present case.
In Stewart v. Keyes, supra, it was held that a conveyance made pursuant to a sale by the guardian of an incompetent full-blood Creek Indian, under the direction and with the approval of the County Court, does not require the further approval of the court having jurisdiction of the settlement of the estate of the deceased allottee.
Plaintiff additionally argues that the land in controversy was unrestricted because it was allotted for the benefit of heirs of a deceased enrollee who died before selection of the allotment.
This question was determined adversely to plaintiff’s contention by the United States Supreme Court in Talley v. Burgess, 246 U.S. 104, 38 S.Ct. 287, 62 L.Ed. 600, wherein it was held that the restric-tions upon conveyances by the heirs of any deceased Indian of any of the Five Civilized Tribes under Section 22 of the Act of April 26, 1906, apply as well in a case where selection has been made by the duly appointed executor or administrator of an Indian who died before receiving his allotment as to a case where the land was selected by the ancestor in his lifetime.
To the same effect, Harris v. Bell, 10 Cir., 250 F. 209; Brader v. James, 246 U.S. 88, 38 S.Ct. 285, 62 L.Ed. 591; David v. Youngken, 10 Cir., 250 F. 208.
In Marcy v. Board of Com’rs, 45 Okl. 1, 144 P. 611, plaintiff a full-blood Seminole Indian heir, instituted action to annul and cancel certain tax sale certificates, and restrain the collection of taxes assessed in the years 1910 and 1911 against non-homestead lands allotted to a full-blood Seminole Indian, plaintiff’s ancestor. Plaintiff contended that the lands were restricted and non-taxable under the Act of May 27, 1908.
In reversing judgment for defendants we said, at page 614 of the Pacific Reporter opinion:
“From the language of the act ‘that all land from which restrictions have been or shall be removed shall be subject to taxation,’ it is clear that the power of the state to tax the lands in question is coincident with and dependent upon the unrestricted right of the owner to sell the same. The power to tax, and right to convey, are granted by the same act, become effective upon the same condition and at one and the same time; the former cannot exist without the latter.
“It follows that restrictions upon the alienation of the lands involved are removed only upon compliance with the terms of the proviso requiring the approval of conveyances of full blood heirs by the county court having jurisdiction of the settlement of the allot-tee’s estate. This is a necessary condition precedent to the power of the state to subject such lands to taxation; and, not having been complied with, [578]*578all proceeding's for the purpose of enforcing collection of taxes on said lands are void.”
Quoting further, from the syllabus:
“1. The words ‘restrictions upon the alienation/ as used in the Act of Congress of May 27, 1908, c. 199, 35 Stat. 312, means those restraints or limitations imposed by law upon the power of allottees of the Five Civilized Tribes and their heirs to voluntarily convey allotted lands free from supervision or control of any federal agency.
“2. The language of the proviso to section 9 of said act (Act May 27, 1908, c. 199, 35 Stat. 315), ‘that no conveyance of any interest' of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee’ excepts lands inherited by full-blood heirs from the general terms of the statute making the death of an allottee operate to remove all restrictions upon the alienation of said allottee’s land.
“3. The power to tax inherited Indian land is coincident with and dependent upon the removal of restrictions upon alienation; and, prior to the approval of conveyances of full-blood Indian heirs under the provisions of said act by the proper court, the power to tax said lands does not exist.”
The rule enunciated in Marcy v. Board of Com’rs was cited and followed in Watkins v. Howard, County Treasurer, 64 Old. 166, 166 P. 706. In paragraph one of the syllabus, we held :
“Following Marcy v. Board of County Commissioners, 45 Old. 1, 144 P. 611, it is held, where the conveyance or deed of the interest of a full-blood Indian heir of the allottee of land allotted in the Choctaw Nation is invalid, unless approved by the Secretary of the Interior or by the court having jurisdiction of the settlement of the estate of the deceased allottee, such interest in the land is not subject to taxation for any year prior to the execution and approval of the conveyance or deed by the heirs.”
In Combs v. Johnson, 92 Okl. 189, 218 P. 1098, the facts were substantially identical to those in the instant case. Therein, the land was a portion of the allotment of ' one Willie Thomas, who was duly enrolled as a full-blood member of the Creek Tribe of Indians, and who died previous to receiving his allotment. Said land was thereafter selected and patented to his heirs, both full-blood Creek Indians. Plaintiff based his title upon a tax deed from the county treasurer, covering unpaid taxes for the year 1909. Defendant was grantee under a deed from the full-blood heirs dated June 15, 1912, which was approved by the county court having jurisdiction over the estate of the deceased allottee.
In affirming judgment on the pleadings for defendant, we held, in paragraph two of the syllabus:
“The power to tax inherited Indian land is coincident with and dependent upon the removal of restrictions upon alienation, and prior to the approval of conveyances of full-blood Indian heirs under the provisions of the act of May 27, 1908, by the proper court, the power to tax said lands does not exist.”
In accordance with the holdings of the above-cited cases, we conclude that the land involved in the instant case was restricted as to alienation by the Act of April 26, 1906, and continued in effect by the Act of May 27, 1908, and, therefore, was not subject to ad valorem taxation by the State of Oklahoma for the years 1912-26.
It follows that the resale tax deed and plaintiff’s deed are void. Theiman v. May, Adm’r, 203 Old. 655, 225 P.2d 356; Squires et al. v. Swanson, 169 Old. 390, 37 P.2d 276; Smith v. Barry, 200 Old. 619, 198 P.2d 400.
We come now to the question, whether the trial court erred in granting a new trial to defendants on the ground that the court had rendered judgment for plaintiff and intervenor based on the erroneous find[579]*579ing that defendants’ right to relief against the tax resale deed and plaintiff’s deed was harred by limitations.
Title 12 O.S. § 93, subd. (3) as amended in 1949, provides that an action for the recovery of real property sold for taxes may be brought within five years after the date of the recording of the tax deed. Subdivision (6) of said statute provides:
“Numbered paragraphs 1, 2, and 3 shall be fully operative regardless of whether the deed or judgment or the precedent action or proceeding upon which such deed or judgment is based is void or voidable in whole or in part, for any reason, jurisdictional or otherwise; provided that this paragraph shall not he applied so as to bar causes of action zvhich have heretofore accrued, until the expiration of one (1) year from and after its effective date.” (Emphasis added.)
The amendment became effective April 18, 1949. Defendants’ cross-petition, which would have become barred on April 18, 1950, was filed on March 24, 1950, and therefore, is not governed by the 1949 amendment. In Sarkeys v. Martin, Okl., 286 P.2d 727, 728, we held, in paragraph two of the syllabus :
“Where suit was filed and summons issued on April 18, 1950, action was commenced within one year after April 18, 1949, and was not barred by statute of limitations.”
See, also, Bridges v. Stick, D.C., 106 F. Supp. 506.
In Theiman v. May, Adm’r, 203 Okl. 655, 225 P.2d 356, we held that neither 12 O.S. 1941 § 93, subdivision 3 (prior to 1949 amendment), nor 68 O.S.1941 § 455, applies to an' action to cancel a void resale tax deed.
In Whitney v. Posey, 180 Okl. 373, 69 P.2d 335, we held in paragraph one of the syllabus:
“The title of a person in the actual and peaceable possession of land, claiming the same under a tax deed, void upon its face, will ripen into a good ti-tie where continuous, exclusive, adverse, and hostile possession is held thereunder for a period of 15 years.”
It is readily apparent, therefore, that no statute of limitations is applicable to defendants’ cross-petition, and that defendants were properly granted a new trial unless the record establishes adverse possession of the land by plaintiff for a period of fifteen years or more.
In the petition, plaintiff alleges that:
“plaintiff acquired title thereto by deed from Tulsa County, State of Oklahoma, dated May 20, 1935, recorded in Book 1156, page 101, filed ofi record June 8, 1935, and plaintiff has been in possession and ownership ever since said date.”
The period from May 20, 1935, to March 24, 1950, the date defendants filed their cross-petition, is 14 years, 10 months, and 4 days.
Plaintiff testified that prior to 1935 he rented a squatter’s house or homestead house on the land from one Dudley, in 1933. That
“I rented it for a full year or a little bit over a year that I rented it altogether. One spring then I propositioned him to buy the house, — it had a nice garden spot — at the time I didn’t know for sure whose land it was on, but he told me he didn’t own the land, just the house, so I paid him a price for the house and I lived there then possibly six months, maybe longer than that, I forget exactly how long I lived in the house before I dug up the evidence it was up for tax sale and that was at the time Bridges was one of the Commissioners and he was a neighbor. * * *
“Q. You did learn the property had been sold from Bridges and acquired a Commissioner’s deed? A. Yes.
“Q. From 1935 on did you continue to live on the property? A. Yes.”
It is apparent from his testimony that plaintiff’s possession prior to 1935 was [580]*580not of sufficient character or quality to constitute adverse possession. He was not claiming title or ownership ofi the land. Mere possession of land without adverse claim of exclusive title or interest is insufficient to establish title by adverse possession. Melton v. Goodman, Okl., 317 P.2d 244; Cook v. Craft, 207 Okl. 125, 248 P.2d 236.
Plaintiff argues that the period of more than sixty days prior to the date of his deed, during which there were resolutions, notices, appraisals, etc., was “competent evidence of the control and possession, adverse to the world,” and sufficient, when added to plaintiff’s possession under the deed, to amount to more than fifteen years adverse possession.
We find no evidence in the record of actual possession or occupancy by the county prior to the date plaintiff went into possession under his deed. In Morton v. Van Orsdol, 203 Okl. 394, 222 P.2d 520, we held that there was no presumption of possession by the county under a void resale tax deeR. In Sarkeys v. Scott, Okl., 269 P.2d 779, we held that constructive possession by holder of void resale tax deed is insufficient to create a title by prescription, but holder must show recordation of the tax deed and occupancy of the premises of an open, notorious, exclusive; continuous and hostile character for the statutory period. Compare Vaughn v. Town of Maysville, Okl., 295 P.2d 283, wherein we held that the title of a municipality which is in actual possession of land under color of title of a void tax resale deed ripens into a good title where possession is continuous, exclusive, adverse and hostile for a period of fifteen years.
Inasmuch as it clearly appears from the record that the original judgment for plaintiff was contrary to the law and evidence, we hold that the trial court did not err in sustaining defendants’ motion for new trial.
The order sustaining defendants’ motion for new trial is affirmed.
DAVISON, C. J., WILLIAMS, V. C. J., and WELCH, HALLEY, JOHNSON, BLACKBIRD and IRWIN, JJ., concur.
BERRY, J., dissents.