¶1 (dissenting). I am unable to agree with the majority opinion.
¶2 Whatever title plaintiff had was acquired through the deed to him from the county commissioners of Tulsa county. Such deed is not a tax deed within the meaning of the statutes relating to certificate tax deeds or resale tax deeds and actions thereon.
¶3 In the instant case the property involved was sold to Tulsa county at tax resale by force of the statute. Title 68 O. S. 1941 § 432d. If the resale and the proceedings antecedent thereto were regular, the county acquired a fee-simple title, a virgin title. The county’s title was what is commonly called a tax title.
¶4 Title 68 O. S. 1941 § 432i provides for the management of real estate purchased by the county at resale, and sec *584 tion 432j, same title, designates the procedure for the sale of such property. The amount for which property may be sold bears no relation to the amount of taxes due thereon at the time of the resale to the county.
¶5 Title 68 O. S. 1941 § 4321 provides that the proceeds of sale of property acquired by the county at resale (whether more or less than the taxes and penalties that were canceled by the resale to the county), and the proceeds from leases, rentals and royalties arising from the management of such property “shall be credited to and accounted for in a special cash fund to be styled the ‘Resale-Property Fund’ of such county . . .” This section further provides that this fund shall be continuous, not subject to appropriation, and shall be distributed to various1 purposes, none of which, however, are the purposes for which the tax was levied. And no part is to be distributed to the person who was owner of the property at the time of the resale, even though the amount received at the commissioners’ - sale should exceed the amount of taxes, penalties, etc., for which the property was sold at resale to the county. Moneys received at resale are deemed collection of a tax (sec. 432e), but not so the proceeds of sale of property by county commissioners.
¶6 A resale is a proceeding to collect delinquent taxes, and the deed given to a purchaser at such sale is a tax deed. The county commissioners’ sale of lands acquired by it at resale is not for the collection of taxes,’ and the commissioners’ deed is no more a tax deed than would be a deed from an individual purchaser at a resale.
¶7 Spencer was not a “tax purchaser” and he was not the “holder of the tax deed.” In my opinion, it was error to require the defendants to comply with the tender statute (68 O. S. 1941 § 453). They sought to show that Spencer had no title to the lots in question, because his grantor, the board of county commissioners of Tulsa county, had no title. To prove that, the defendants sought to show that the resale deed to the county was void. This was not an attack on the resale deed. For want of necessary parties, the trial court could not have effectively adjudicated in this case the validity or invalidity of the resale deed.
¶8 The majority opinion, by its force, applies the tender statute to deeds other than tax deeds. That is a function that appropriately belongs to the Legislature. If the Legislature should extend the provisions of the so-called tender statute to county commissioners’ deeds, it would no doubt provide for the distribution of the proceeds of such tender, that is, what part, if any, should be paid to the purchaser from the commissioners and whether the remainder should be distributed as taxes or paid into the resale property fund.
¶9 Such legislation is necessary if a commissioners’ deed is a tax deed. But obviously the Legislature has not so considered it, otherwise, it would have passed the appropriate legislation.