HURST, J.
This action involves the validity of a resale tax deed conveying certain land in Carter county to Laurence E. Beat-tie, the defendant below. The plaintiffs are subsequent grantees of the original owner. The land was first sold in 1925 for payment of the 1924 delinquent taxes, and, as no one offered to bid, the treasurer bid it off in the name of the county. The owner did not redeem the property within two years and it was put up for resale on April 16, 1928. Again there was no bidder and the treasurer bid it off in the name of the chairman of the bo'ard of county commissioners, and issued a deed to him. The deed was recorded on May, 1928. On July 7, 1928, the chairman of the board of county commissioners, after advertising as required by law, sold the property to the defendant, who recorded his deed on July 9, 1928. There was an oil well on the land, which had been producing since prior to 1924, and which was making five or six barrels per day at the time the deed was issued and about two and a half at the time of trial. Apparently, the production was accomplished by the plaintiffs as owners of the fee, for no severance of ownership by oil or gas lease or mineral deed appears, from the record. The gross production tax on the oil thus produced was paid during the year 1924 and at all other times referred to herein.
In November, 1928, a short time after the tax deed was issued to him, the defendant went into possession of the land through a tenant, and ¡about two years later, on July 10, 1930, this action was commenced by plaintiffs to recover said land on the theory that the tax deed 'and subsequent deeds are void.
Since more than one year had elapsed from the recording of defendant’s tax deed and his entry into possession, the action is barred by the statute of limitations, unless the tax deed complained of is void on its face or for jurisdictional defects. Section 12763, O. S. 1931.
1. The resale tax deed under discussion is in the form prescribed by the State Examiner ankd Inspector, and it is contended that it is void on its face for the reason that the State Examiner is not authorized by statute to prescribe a brief form of tax deed stating conclusions rather than ultimate facts. But the deed was issued in 1928, and the same form has been held valid by this court in Hatchett v. Going, Co. Treas. (1926) 121 Okla. 25, 246 P. 1100, and Winters v. Birch (1934) 169 Okla. 237, 36 P. (2d) 907. The deed used in the instant case is identical to the one held valid in Hatchett v. Going, supra, except that the county is the purchaser at the sale herein. It is contended that the statute does not authorize such a deed where the county is the purchaser. But the form prescribed by the State Examiner and Inspector has also been held valid in such case in Fullerton v. Carlock (1937) 179 Okla. 230, 65 P. (2d) 464. The first two cases cited are also decisive of the contention^ that the form of the deed does not meet the requirements of section 9752, C. O. S. 1921 (sec. 12762, O. S. 1931). We, therefore, hold that the form of the deed used in the instant case is sufficient.
2. It is further contended that the failure to file the return of sale 'as required by section 9735, C. O. S. 1921 (sec. 12745, O. S. 1931), is a jurisdictional defect rendering the deed void. It is admitted that no
such return was made, but it is held in Jepeway v. Barrett (1933) 165 Okla. 220, 25 P. (2d) 601, that the deed is not thereby rendered, void. Plaintiffs rely on several cases which were expressly overruled in the Jepeway Case.
3. It appears from the record th'at the treasurer failed to indorse on the tax receipts, issued before the resale, to the owners of the land, the amount of the delinquent taxes as required by section 12620, O. S. 1931. put it is held in the Jepeway Case, supra, that this does not render the tax deed void.
4. As a final proposition, it is contended that even if the iras deed is valid, it in no event operates as a conveyance of the oil, gas, or mineral rights in the land. The reason given is that plaintiffs paid the gross production tax on oil and gas produced from the land and that was in lieu of all other taxes, creating a separate taxable estate which cannot be included in a tax deed issued because of nonpayment of the ad valorem fas.
It appears from the record that the gross production taxes were in fact paid during the time of the delinquency in payment of the ad valorem tax. It is contended by the defendant, however, that, by virtue of section 9746, C. O. S. 1921, as amended by section 6, chap. 158, Sess. L. 1923, “such deed shall vest in the purchaser and grantee of said real estate an absolute and perfect title in fee simple to said land.” It is contended that this has been construed to vest title in the purchaser free and clear from any former right of any owner, relying on Swan v. Kuehner (1931) 157 Okla. 37, 10 P. (2d) 707. To the same effect is Taylor v. Lawrence (1930) 176 Okla. 75, 54 P. (2d) 634.
But in Meriwether v. Lovett (1933) 166 Okla. 73, 26 P. (2d) 200, where the party who defaulted in payment of the ad valorem tax owned the surface rights only, and other parties owning mineral rights had paid the gross production tax on oil from producing wells on the premises, it was held that the district court properly enjoined the county treasurer from issuing and delivering a tax deed which would attempt to convey the mineral rights. Plaintiffs cite eases of similar import from other jurisdictions.
Defendant argues that the instant case is distinguishable in that here the surface and mineral rights were all owned by the same person, 'and the whole estate was united in the person against whom the taxes were assessed. But it will be noted from a careful reading of Meriwether v. Lovett, supra, that the reason for excepting the mineral rights from the contemplated tax deed was not because of the severance of the title, brit because of the severance of the two estates for tax purposes, with the gross production tax becoming a substitute for an ad valorem tax on the mineral rights as long as oil or gas is being produced in sufficient quantities to warrant the payment of such tax.
In Carpenter v. Shaw (1929) 280 U. S. 363, 50 S. Ct. 121, 74 L. Ed. 478, and other cases cited in Meriwether v. Lovett, supra, it is pointed out that by the holding of the Supreme Court of the United States and of this court the gross production tax is not a tax on oil and gas severed from the realty, but is a tax upon the mineral rights in the land, and that it excludes the assessment of a tax on ¡ad valorem basis on the mineral rights as long as oil or gas is being produced. It is further held in Kenoyer v. Board of Equalization, etc. (1928) 130 Okla. 3, 264 P. 891, that an added value for the purposes of taxation on an ad valorem basis should not be given land because of aetuqj or prospective minerals beneath the surface, provided such minerals would be subject to gross production tax when extracted from the earth. This is said to apply as well where the undeveloped minerals remain the property of the owner of the surface as when they are separately owned.
The ultimate basis of a tax deed is a valid assessment and a lien. The lien can be no broader than the assessment, and the tax deed can be no broader than the lien.
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HURST, J.
This action involves the validity of a resale tax deed conveying certain land in Carter county to Laurence E. Beat-tie, the defendant below. The plaintiffs are subsequent grantees of the original owner. The land was first sold in 1925 for payment of the 1924 delinquent taxes, and, as no one offered to bid, the treasurer bid it off in the name of the county. The owner did not redeem the property within two years and it was put up for resale on April 16, 1928. Again there was no bidder and the treasurer bid it off in the name of the chairman of the bo'ard of county commissioners, and issued a deed to him. The deed was recorded on May, 1928. On July 7, 1928, the chairman of the board of county commissioners, after advertising as required by law, sold the property to the defendant, who recorded his deed on July 9, 1928. There was an oil well on the land, which had been producing since prior to 1924, and which was making five or six barrels per day at the time the deed was issued and about two and a half at the time of trial. Apparently, the production was accomplished by the plaintiffs as owners of the fee, for no severance of ownership by oil or gas lease or mineral deed appears, from the record. The gross production tax on the oil thus produced was paid during the year 1924 and at all other times referred to herein.
In November, 1928, a short time after the tax deed was issued to him, the defendant went into possession of the land through a tenant, and ¡about two years later, on July 10, 1930, this action was commenced by plaintiffs to recover said land on the theory that the tax deed 'and subsequent deeds are void.
Since more than one year had elapsed from the recording of defendant’s tax deed and his entry into possession, the action is barred by the statute of limitations, unless the tax deed complained of is void on its face or for jurisdictional defects. Section 12763, O. S. 1931.
1. The resale tax deed under discussion is in the form prescribed by the State Examiner ankd Inspector, and it is contended that it is void on its face for the reason that the State Examiner is not authorized by statute to prescribe a brief form of tax deed stating conclusions rather than ultimate facts. But the deed was issued in 1928, and the same form has been held valid by this court in Hatchett v. Going, Co. Treas. (1926) 121 Okla. 25, 246 P. 1100, and Winters v. Birch (1934) 169 Okla. 237, 36 P. (2d) 907. The deed used in the instant case is identical to the one held valid in Hatchett v. Going, supra, except that the county is the purchaser at the sale herein. It is contended that the statute does not authorize such a deed where the county is the purchaser. But the form prescribed by the State Examiner and Inspector has also been held valid in such case in Fullerton v. Carlock (1937) 179 Okla. 230, 65 P. (2d) 464. The first two cases cited are also decisive of the contention^ that the form of the deed does not meet the requirements of section 9752, C. O. S. 1921 (sec. 12762, O. S. 1931). We, therefore, hold that the form of the deed used in the instant case is sufficient.
2. It is further contended that the failure to file the return of sale 'as required by section 9735, C. O. S. 1921 (sec. 12745, O. S. 1931), is a jurisdictional defect rendering the deed void. It is admitted that no
such return was made, but it is held in Jepeway v. Barrett (1933) 165 Okla. 220, 25 P. (2d) 601, that the deed is not thereby rendered, void. Plaintiffs rely on several cases which were expressly overruled in the Jepeway Case.
3. It appears from the record th'at the treasurer failed to indorse on the tax receipts, issued before the resale, to the owners of the land, the amount of the delinquent taxes as required by section 12620, O. S. 1931. put it is held in the Jepeway Case, supra, that this does not render the tax deed void.
4. As a final proposition, it is contended that even if the iras deed is valid, it in no event operates as a conveyance of the oil, gas, or mineral rights in the land. The reason given is that plaintiffs paid the gross production tax on oil and gas produced from the land and that was in lieu of all other taxes, creating a separate taxable estate which cannot be included in a tax deed issued because of nonpayment of the ad valorem fas.
It appears from the record that the gross production taxes were in fact paid during the time of the delinquency in payment of the ad valorem tax. It is contended by the defendant, however, that, by virtue of section 9746, C. O. S. 1921, as amended by section 6, chap. 158, Sess. L. 1923, “such deed shall vest in the purchaser and grantee of said real estate an absolute and perfect title in fee simple to said land.” It is contended that this has been construed to vest title in the purchaser free and clear from any former right of any owner, relying on Swan v. Kuehner (1931) 157 Okla. 37, 10 P. (2d) 707. To the same effect is Taylor v. Lawrence (1930) 176 Okla. 75, 54 P. (2d) 634.
But in Meriwether v. Lovett (1933) 166 Okla. 73, 26 P. (2d) 200, where the party who defaulted in payment of the ad valorem tax owned the surface rights only, and other parties owning mineral rights had paid the gross production tax on oil from producing wells on the premises, it was held that the district court properly enjoined the county treasurer from issuing and delivering a tax deed which would attempt to convey the mineral rights. Plaintiffs cite eases of similar import from other jurisdictions.
Defendant argues that the instant case is distinguishable in that here the surface and mineral rights were all owned by the same person, 'and the whole estate was united in the person against whom the taxes were assessed. But it will be noted from a careful reading of Meriwether v. Lovett, supra, that the reason for excepting the mineral rights from the contemplated tax deed was not because of the severance of the title, brit because of the severance of the two estates for tax purposes, with the gross production tax becoming a substitute for an ad valorem tax on the mineral rights as long as oil or gas is being produced in sufficient quantities to warrant the payment of such tax.
In Carpenter v. Shaw (1929) 280 U. S. 363, 50 S. Ct. 121, 74 L. Ed. 478, and other cases cited in Meriwether v. Lovett, supra, it is pointed out that by the holding of the Supreme Court of the United States and of this court the gross production tax is not a tax on oil and gas severed from the realty, but is a tax upon the mineral rights in the land, and that it excludes the assessment of a tax on ¡ad valorem basis on the mineral rights as long as oil or gas is being produced. It is further held in Kenoyer v. Board of Equalization, etc. (1928) 130 Okla. 3, 264 P. 891, that an added value for the purposes of taxation on an ad valorem basis should not be given land because of aetuqj or prospective minerals beneath the surface, provided such minerals would be subject to gross production tax when extracted from the earth. This is said to apply as well where the undeveloped minerals remain the property of the owner of the surface as when they are separately owned.
The ultimate basis of a tax deed is a valid assessment and a lien. The lien can be no broader than the assessment, and the tax deed can be no broader than the lien. Consequently, when the mineral rights are excluded from the assessment of the ad valorem tax because of the payment of the gross production tax, they are excluded from the lien and cannot be conveyed by the tax deed. The fact that the title remains in the same person is immaterial. We, therefore, conclude that the severance of the estate for taxation purposes, when oil and gas is produced, is the reason for excluding the mineral rights in a resale tax deed, and the unity of the title in one party of the estates so severed cannot affect the rule promulgated in Meriwether v. Lovett, supra.
It must be clearly understood that this separate táxable estate in the mineral rights exists only during the time when production is obtained from the property and gross production tax levied and paid thereon. Although the langu'age in Kenoyer v. Board of Equalization, etc., supra, might indicate
that the mineral rights are never subject to ad valorem
tax,
since
they
might be subject to gross production tax in the future, such was not the holding of the court. The facts therein disclose that minerals were being produced and a gross production tax was being paid during the period of time in question, and the holding therein must be limited to such facts. It is true that an added value cannot be given to property for its potential mineral wealth, when the minerals are not actually being extracted, because, as stated by Mr. Justice Kane, such would be merely a tax “upon the illimitable vista of hope”; nevertheless, before oil or gas is discovered, or after such production has ceased, the mineral rights are subject to !ad valorem tax as real property of the owner of the land. (In re I. T. I. O. [1914] 43 Okla. 307, 142 P. 997.)
This view does not conflict with the holding of Swan v. Kuchner, supra, or Taylor v. Lawrence, supra, for the reason that title free and clear from any right of any former owner will vest in the purchaser at the tax sale, but subject to the mineral rights, when minerals are being extracted and gross production tax levied and paid.
We hold that the deeds involved in the instant case operate as a conveyance of the surface rights, but do not convey the oil ’and gas rights. The judgment is reversed, with directions to enter judgment in accordance with the views herein expressed.
OSBORN, C. J., BAYLESS, Y. O. J., and PHELPS, GIBSON, and DAVISON, JJ.. concur. RILEY, WELCH, and CORN, JJ., dissent.