(dissenting): I dissent on the fundamental grounds that since the taxes on appellee’s real estate — an ownership of minerals in place — were at no time delinquent the county and consequently the court had no jurisdiction of the subject matter, as far as such ownership was concerned, and hence could not make a valid order of sale. The result of this decision is that real estate in this state owned by k nonresident may be erroneously bid in for “delinquent” taxes and subsequently sold at foreclosure sale- — - all without the owner’s actual knowledge — even though the taxes have at all times been paid and are shown as paid on the county’s books, and unless the owner learns of the sale and takes action within six months after the sale he is irrevocably divested of all title and interest in the property. I do not think the statute' requires such a result or that the legislature so intended.
It is elementary that before there can be a valid judgment there must be jurisdiction of the subject matter as well as of the parties. As to the parties I am not questioning the sufficiency of service by publication in a case of this kind. But service does not create jurisdiction of the subject matter.
Under the statute, under the general rule and under the logic of many decisions of this court in tax statute cases tax delinquency is a condition precedent to the right of the county to purchase. There being no authority in law to “bid in” property upon which the taxes were fully paid I do not know how the court acquired jurisdiction of the subject matter.
*730The -essential facts, as stipulated by the parties, may be briefly restated. On October 31, 1927, the owners of the land executed and delivered to the appellee a mineral deed conveying an undivided one-half interest in the minerals in place together with certain other property and contract rights as set out in the com-t’s opinion. The mineral deed was duly recorded on January 2, 1928; the mineral interest so conveyed was thereupon separately listed and valued by the county and separately taxed, all in compliance with G. S. 1935, 79-420. Thereafter the taxes so assessed were paid regularly by the appellee each and every year up to and including 1943 and such payments were regularly recorded upon the county’s books. It was stipulated that “no tax assessed or levied against said mineral interest and other contract rights so owned and held by plaintiff has ever become delinquent.” The taxes on the remainder of the fee — surface rights and half interest in the minerals in place — retained by the grantors became delinquent and in due course the county foreclosed the tax lien. Appellee not only owned its mineral interest upon which it kept the taxes paid for 16 years, but also had, under the instrument, some contractual rights — easements or lease rights — as to the remainder of the fee upon which the taxes were delinquent. It was served with notice by publication in the foreclosure sale. There is no contention it had any actual notice of the proceedings. However, I do not contend that service by publication is not good in a case of this sort even though there is a registered agent upon whom personal service can be had. Assuming the service to be good it would follow that appellee was foreclosed as to its easements or other rights incident to the real estate which the grantors retained and upon which the taxes were delinquent. Whatever rights of ingress and egress, leasing rights or other such rights appellee may have lost, that does not however affect its ownership of real estate under the mineral deed.
It is well settled in this state that a conveyance of minerals in place carves a subsurface estate out of the fee, creates a separate freehold estate of inheritance to be classed and taxed as real estate. ( Mining Co. v. Atkinson, 85 Kan. 357, 116 Pac. 499; Mining Co. v. Crawford County, 71 Kan. 276, 80 Pac. 601; Richards v. Shearer, 145 Kan. 88, 91, 93, 64 P. 2d 56; Shaffer v. Kansas Farmers Union Royalty Co., 146 Kan. 84, 69 P. 2d 4.) Such an instrument must be recorded and listed for taxation (G. S. 1935, 79-420) and that *731was done-. The fact that appellee’s deed gave it only an undivided half interest in the minerals in place instead of the entire mineral interest does not change the situation. It was still a real estate interest, separated from the remainder of the fee. (Shaffer v. Kansas Farmers Union Royalty Co., supra.)
I am not unmindful of the' fact that our statutes now provide for judicial sale in tax foreclosures, and that the statute provides for action to foreclose tax liens “in all cases in which real estate has been or shall be sold and bid in by the county at any delinquent tax sale” etc. But certainly this refers only to property lawfully bid in where taxes were delinquent. If the county had no jurisdiction how did the court acquire jurisdiction of the subject matter?
We have repeatedly said that methods of tax collection are to be found exclusively in the statutes and that tax statutes are to be strictly construed in favor of the property owner. And we have repeatedly said that compliance with- the statute is essential to acquisition of jurisdiction (Bryner v. Fernetti, 141 Kan. 446, 41 P. 2d 712; Madigan v. Smith, 137 Kan. 269, 20 P. 2d 825; Crawford (County Comm’rs v. Radley et al., 134 Kan. 704, 8 P. 2d 386). A recent case in point is Morris County Comm’rs. v. Cunningham, 153 Kan. 340, 110 P. 2d 783. The case tested the validity of action by the county commissioners in leasing property previously bid in by the county for taxes as provided for in G. S. 1935, 79-2701. Taxes were delinquent, the property was regularly bid in but the commissioners leased the property prior to the expiration of a three-year period provided by the statute. It was held that compliance with the three-year provision was a condition precedent to the exercise of jurisdiction by the county under the statute. In a later case involving the same property (Cunningham v. Blythe, 155 Kan. 689, 691, 127 P. 2d 489) we again emphasized the proposition that compliance with the statute is essential to the exercise of jurisdiction in the matter.
The Kansas cases referred to and others that might be cited are in line with the authorities generally which hold that in the case of tax foreclosure sales compliance with fundamental requirements is essential to the acquisition of jurisdiction of the subject matter. This rule is not in conflict with many cases which hold that certain procedural defects do not make the sale void, but only voidable. Certainly there is nothing quite so fundamental in a tax foreclosure *732case as tax delinquency. That is the very basis of the whole proceeding.
In 61 C. J. 1120,1121 it is said:
“Before there can be a valid sale of land for taxes it is essential that such taxes should have remained due and unpaid . . .• for the length of time prescribed by the statute; . . . When the taxes upon a particular parcel of real estate have once been paid ... to an officer authorized to receive them, a subsequent sale of land for those taxes is void” (citing many cases from many jurisdictions). (Italics supplied.)
See, also, 51 Am. Jur. 896 where “nonpayment of the tax” is listed as one of the essentials before any procedure for sale of lands for nonpayment of taxes can be regarded as “due process of law.”
There is, I am aware, a class of cases involving controversies over property rights between private parties in which collateral attack upon the judgment has not been permitted, although very serious defects were shown to have existed in the pleadings or in the proceedings leading up to judgment. Such cases are not persuasive here. As between private parties the court may acquire jurisdiction of the subject matter in spite of irregularities which might have been fatal if subjected to timely attack. But a different situation exists in the case of tax statutes where compliance with fundamental requirements is jurisdictional in character. And it should be so. The sovereign owes that to the citizen. Just as the citizen’s property may be taken if the taxes are not paid, the citizen is entitled to immunity from such taking if he keeps the taxes paid. Although the case of Montgomery County v. Wilmot, 114 Kan. 819, 221 Pac. 276, referred to in the court’s opinion turned upon a somewhat different issue the rule of law quoted from the opinion is here pertinent and bears repeating. It was there said; i
“Perhaps it is not stating it too broadly to say that one of the fundamental prerequisites to a valid sale of real property for taxes is that there is a tax due and unpaid at the time of the sale. Not only is this prerequisite essential to fair dealing between a sovereign and its citizens, but it is either specifically or necessarily by implication embodied in every provision for the sale of real property for taxes.” (p. 824.)
That is a sound rule, in line with the authorities generally. It should be followed, and the judgment affirmed.
Burch, J., joins in the foregoing dissenting opinion.