(dissenting). I think the judgment of the trial court should be affirmed. It appears to me the majority opinion is in grievous error in the *287statement “This case cannot be properly disposed of without the presence of Texas county herein.”, and cites as authority 12 O.S. 1941 §236, which provides as follows:
“The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in.”
So, it is plain to see that said section, supra, is not applicable to the facts in this case, for the reason a full and complete determination of the controversy between the parties can be determined without prejudice to the rights of others.
12 O.S. 1941 §237 provides:
“When in an action for the recovery of real or personal property any person having an interest in the property applies to be made a party, the court may order it to be done.”
There was no suggestion made to the trial court by either the plaintiff or the defendant that Texas county be made a party. And there is no contention in this court by either party in their briefs that Texas county is a necessary party. Any interest Texas county has in said royalty would not be prejudiced nor foreclosed by an af-firmance of this judgment. Texas county would be in the same legal position it occupied, as to any interest it owned in said royalty before the state brought the quiet title action.
It is stated in the majority opinion:
“Inasmuch as the Commissioners of the Land Office never acquired title to the one-half of the royalty formerly owned by Southland, their secretary had no authority to certify to the county treasurer of Texas county that the Commissioners were the owners thereof, and said county treasurer had no authority or right to strike said property from the taxable-property list and strike all delinquent taxes assessed and charged against said land, and all tax certificates and tax deeds based upon such delinquent taxes, insofar as this one-half of the royalty is concerned; so sec. 151, Title 64, O.S. 1941, has no application.”
The county treasurer would be required, under said section, supra, to make cancellation of all tax certificates and tax deeds on, as least, the land and mineral interest covered by the mortgage. The Legislature has not enacted a law subjecting royalty to taxation.
We may sometime be presented with this identical question, to wit: When the State forecloses its mortgage on land, with outstanding royalty, that a county is holding a resale tax deed to, can the county cancel the resale tax deed to the land and royalty covered by its mortgage and retain the outstanding royalty?
If this question was made an issue in the trial court (in this case it was not), then on appeal to this court we would be confronted with a serious problem, in face of 64 O.S. 1941 §151, which is as follows:
“Upon the acquirement of the legal title of any lands by the Commissioners of the Land Office, either by cancellation of the Certificate of Purchase, foreclosure of mortgage, warranty deeds, or otherwise, the Secretary of the Commissioners of the Land Office shall certify such fact to the County Treasurer of the county in which such lands .are situated, and upon such certification it shall be the mandatory duty of the County Treasurer of such county to remove said lands from the taxable property list, and to strike from the record or make proper notation upon the books and records of such County Treasurer that all delinquent taxes assessed and charged against said lands and all tax certificates and tax deeds based upon such delinquent taxes, are canceled and nullified. Any County Treasurer of this State who fails and refuses to comply with the requirements and provisions of such certification by the Secretary, and of this Section, shall *288render himself subject to ouster from office and shall be liable upon his official bond for any damage that may be caused by the State by his neglect and omission. The recordation in the office of the proper County Clerk of any Sheriff’s Deed to the State of Oklahoma as grantee or of any Warranty Deed given to the State of Oklahoma in settlement of mortgage indebtedness or the cancellation of any Certificate of Purchase, when certified by the Secretary to the Commissioners of the Land Office to the proper County Treasurer, shall ipso facto cancel all delinquent taxes on the real estate involved, and shall likewise cancel all outstanding tax certificates or tax deeds based upon taxes levied subsequent to the recordation of the mortgage to the Commissioners of the Land Office, or subsequent to the issuance of the canceled Certificate of Purchase by the Commissioners of the Land Office.”
This court should withhold its decision on the question until a case is presented, at which time it would have the benefit of briefs and oral argument, if it so desired, by interested parties.
Regardless of the caution used by this court in preparation and adoption of its opinions to keep it free from dictum, the same has eked in, in a few instances. However, this is the first instance wherein this court has reversed the judgment of the trial court with its decision based solely upon dictum. This is also the first time this court has reversed the judgment of the trial court because he did not require, on his own motion, an additional party to be brought in, when there was no indication that the third party has any desire to be'brought in, or that either party to this action has any view or made any request that the third party should be brought in.
Dictum is defined to be a statement or holding in an opinion not responsive to any issue, and not necessary to the decision of the case.
The trial court no doubt had well in mind that the State of Oklahoma and the defendant, ‘Royalty Company, were the only parties to the suit and the only parties to be considered. He also was informed, as shown by the stipulation, that all tax proceedings had been canceled; whether rightfully or wrongfully, was not án issue before him, therefore, under the above facts and circumstances, rendered the following judgment, to wit: “The title of the Southland Royalty Company to a one-half interest in the oil, gas and other minerals in and under the above described land should be quieted as to any claim of the State of Oklahoma”, thus leaving untouched any claim of any other party to any part of the minerals.
Regardless of the tax sale transacted by the county, the mortgage of the State was not affected and its security neither increased nor decreased.
The State cannot acquire title in a foreclosure sale to more land, or interest therein, than was actually covered by its mortgage, in the absence of a special pleading and proof showing a subsequent transaction wherein •the omitted interest was added.
The result of the majority action is to add cost and expense to some party, perhaps to all parties, and to cause further delay to the School Land Commission in obtaining the relief and title settlement to which we all agree the Commission is entitled. This delay of justice is not only unnecessary, but wholly wrong in my view. The law is too well established to require citation that matters not presented to the trial court will no be considered by this.court on appeal, and no judgment of the trial court will be reversed on an issue not presented to the trial court.
Whether Texas county is the owner of said royalty was not an issue in the trial court, and, therefore, is not a proper issue for this court to decide.
I therefore respectfully dissent: