¶1(dissenting).
¶2The majority opinion goes off on a question that was not raised'in the case and is not in it, that is the question of possession or occupancy. ' The plaintiff in his petition alleged that he was in possession of the land in question and was the owner thereof and proved that his tax deed had been.filed for record' fpr five years prior to the suit. ■. The appealing defendants never denied the possession neither did they raise the question as to how long the plaintiff had been in possession. It has been held in other jurisdictions (I do not find whére this Court has passed on it) that the failure to deny has been held to admit allegations or averments as to ownership and possession of property. Flinn v. Blakeman, 254 Ky. 416, 71 S.W.2d 961; Ohio Sav. Bank & Trust Co. v. Loewenstein Realty Co., 120 W.Va. 216, 198 S.E. 524; Lindenthal v. Northwest State Bank, 221 Ill.App. 145. Undoubtedly we would go along with this rule because Sec. 306, Title 12 O.S.1951 says: “Every material allegation of the petition, not controverted. by the answer, … shall, for the purposes of the action, be taken as true; … Plaintiff was entitled to recover if these allegations were not controverted.
¶3..All the, defendants did .in their..answer was to attack the tax deed .which .they claimed was void-' for. the following, reasons:
*874“(a) For the reason that the land described above was not sold at resale by > the County Treasurer on the date it was advertised to be sold.
"(b) For the reason that the notice of resale was not published for four full weeks, as was required by law, prior to the date of sale.
“(c) For the reason that the above described property was advertised for sale on the second Monday in May, 1941, the first notice of sale having been published on April 10, 1941, and included in the notice of sale all of the ad valorem taxes levied for the year 1940, when the last quarter of the 1940 taxes did not become delinquent until May 1, 1941, after the notice of sale had been run for three weeks.” C. M. pp. 58, 59.
¶4We held in Woods v. Phillips Petroleum Co., 207 Okl. 490, 251 P.2d 505, that even though, the tax deed be void that the statute of limitations in 12 O.S.1951 § 93 would apply and the owner under the. tax. deed would recover when it had been of record for five years.
¶5I do not think this Court should reverse a -case on a point which was not urged in the trial court. This case should be affirmed.
¶6I dissent.