The opinion
GIBSON, J.
(concurring in result). I concur in the result reached, but not *280 in the reasoning of the majority opinion.
In my opinion the lands in the instant case were nóntaxable prior to the full payment of the purchase price because previous to that time the purchaser, under the terms of the contract of purchase, had no greater right than that of a holder of an option, which right could not ripen into an equitable title before full payment was made. Such being true, the nontaxability of the land turns solely on the question of the existence of an estate which is a condition precedent to any question of the taxability of such an estate.
In the majority opinion what is said to be the applicable doctrine is stated as follows:
“Examination of the cases bearing on that question will disclose that in purchases of land from the United States, a final certificate does not issue until the purchaser has paid the purchase price in full. It is from that time, and that time only, after the purchaser had done everything necessary to entitle him to a patent, and until a patent is issued, that the purchaser holds the equitable title and the United States holds the legal title in trust for the purchaser.”
This pronouncement does not conflict with the law applicable to the instant case, but by reason of its breadth it can and does conflict with the law applicable to cases where equitable title does pass prior to full payment of the purchase price and the question of taxa-bility is to be determined on other grounds.
The rule would negative the existence of an equitable title in purchaser in cases where the sole interest of the United States in the land would be a lien to secure the purchase price, and it is so recognized in the authority quoted by the majority in support of the announced rule. That such does not correctly state the law in light of the most recent decision of the United States Supreme Court is reflected in the holding in S. R. A., Inc., v. State of Minnesota (U. S.) 90 L. Ed. 851 , 66 S. Ct. 749 . Therein it is expressly held that the equitable title may pass under executory contract of sale prior to full payment, and that in cases, as there, where'the United States merely holds the land as security for the purchase price, the same does pass prior to full payment. And in contemplation of such situation the court indicates that- the authority for the tax is limited only where it impairs the immunity of United States property interest. Under the authority of that case the holding of this court in Bowls v. Oklahoma City, 24 Okla. 579 , 104 P. 902 , to the extent that it found that the equitable title passed to the purchaser, is sound and the criticism thereof by the majority on that ground is not justified. Whether the decision there is wrong because it held such equitable title taxable involves a question not material here, and hence the instant case can afford no justification for questioning the holding there on that ground.
In the cited United States Supreme Court case, the court, while declaring the situation where equitable title passes to the purchaser, recognized that there are sales where the equitable title remains in the United States and cites cases arising under the Reclamation and Homestead Acts as illustrations. There the court, in construing the contract, said: “In- this instance there were no specific words in the contract with petitioner which were intended to retain sovereignty in the United States.” There the contract provided for repossession by United States upon default in payment, retention of prior installments paid and with authority in United States to resell the property and recover of the purchaser any resulting deficiency. The application of the proceeds of sale to payment of the purchase price is a recognition of a title in the purchaser. Ón the other hand, in the instant case, under the controlling regulations, there was a retention of complete control of .the title without recognition of any right in the purchaser other than a qualified possessory use while not in default. *281 There was no reversion of power to the United States over an estate in a purchaser. The estate and power remained in the United States and the exercise of the power was merely suspended or held in abeyance pending opportunity for compliance with terms of sale which were a condition precedent to the incidence of any recognized estate in the purchaser.
The questions, whether in situations different from the one here involved an equitable estate does or does not pass to the purchaser prior to full payment, and if so whether a tax thereon can be levied in view of the property right in the United States, are foreign to that which is decisive of the instant case, and I feel that the discussion thereof and the review of the earlier decisions on the strength of the declared rule are necessarily misleading.