The opinion
HALLEY, Justice.
I dissent to the majority opinion in this case for the reason that I think it is in conflict with decisions of this Court.
Parties will be referred to as in the trial court.
No one questions the fact that the plaintiff retained twenty-five per cent of the minerals in the NE14 and Wj4 of SE}4 and the EJ4 of the SW14 of 9-2-27, Beaver County and he has never conveyed that interest to anyone. All of the surface and the balance of the minerals in the above-described land he conveyed to the Devores who gave him a mortgage back on the entire tract. He assigned this mortgage to C. L. Leiter.
When the Pioneer Mortgage Company filed suit to foreclose the mortgage on the NW}4 °f 9-2-27, no mention was made of the quarter mineral interest because it was in no way involved in that foreclosure. C. L. Leiter without any authority whatsoever after answer day in the Pioneer Mortgage case filed a cross-petition to foreclose the mortgage that had been assigned to him. This mortgage could only cover the land deeded to Devore, which did not include the quarter mineral interest. Leiter did not serve notice of any kind on Curtis, the plaintiff here, informing him that a cross-petition was being filed to foreclose his mineral interest and all of the surface.
The judgment against the plaintiff Curtis was void under our holding in Wood v. Speakman, 153 Okl. 180 , 5 P.2d 121 .
We have held many times that a void judgment may be attacked at any time. Pettis v. Johnston, 78 Okl. 277 , 190 P. 681 .
The defendants contend that they should recover because of our opinion in Littlefield v. Brown, 68 Okl. 144 , 172 P. 643 , which held that a defendant who was served with a summons in an action was in court for all purposes and that a codefendant could maintain a cross-petition against another co-defendant without giving him any notice. This case was specifically overruled by Wood v. Speakman, supra.
We said in Texas Co. v. Oklahoma Tax Commission, 207 Okl. 385 , 249 P.2d 985 , 988:
“It seems established as a general principle that a decision of a court of last resort overruling a former decision by that court is retrospective in its operation, the theory being that the former decision so overruled never was-the law. 14 Am.Jur. p. 345, Sec. 130; 21 C.J.S., Courts, § 194, p. 326. * * ”
This is what 21 C.J.S. Courts § 194 says:
“The overruling of a decision generally is retrospective and makes the law at the time of the overruled decision as it is declared to be in the last decision. The overruled decision as a precedent is thereby destroyed, but it remains the law of the particular case in which it was rendered.”
14 Am.Jur., Courts, § 130, puts it this way:
“The general principle is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former decision is bad law, but that it never was the law. * * *»
1 like the language of the Supreme Court of Wisconsin on this point as expressed in Laabs v. Wisconsin Tax Comm., 218 Wis. 414 , 261 N.W. 404, 405 , which is:
“The Blackstonian doctrine, which is generally held, is that the later decision is retrospective in operation for the reason that courts declare, but do not make, law. In consequence, when a decision is overruled, it does not merely become bad law; it never was the law, and the later pronouncement is regarded as the law from the beginning. * * * ”
The courts have some difficulty in certain cases as to whether the rule shall always be retrospective in operation. The great bulk of cases are to the effect that the *625 overruled case is simply wiped out and was never the law. Decennial Digest’s Courts, Key No. 100(1).
In the case at bar the effect of Woods v. Speakman, supra, is that one codefendant could not sue another codefendant on an entirely separate claim (here the foreclosure of a mortgage on different piece of land) without serving notice on the interested co-defendant. The majority recognizes that the holding in Littlefield v. Brown, supra, is wrong and that this Court was correct in overruling it.
It must not be overlooked that the situation of an overruled decision and that of a repealed statute is not the same. The statute was the law until repealed but the overruled decision was never the law.
In considering this question before us it becomes not so much a matter of whether an opinion overruling a decision shall be given retrospective effect but really that the law never was what the overruled case said it was.
When Ralph E. Barby bought the land in question on the 29th of April, 1941, he should have been aware of plaintiff’s right to this quarter interest in the minerals. The deed to Devore from Curtis had been of record for years. Barby’s grantor had received only a quitclaim deed to the land from his grantor F. P. Thorne who was not a stranger to this title.
The two Missouri cases which gave rise to the quotation from 21 C.J.S. Courts § 194 in the majority opinion have no effect in this case. There the Missouri Court held that its holding should be prospective and not retrospective which can be and is done. Barker v. St. Louis County, 340 Mo. 986 , 104 S.W.2d 371 ; Koebel v. Tieman Coal & Material Co., 337 Mo. 561 , 85 S.W.2d 519 .
According to the overwhelming weight of authority, logic and sound reasoning it is my opinion that when Littlefield v. Brown, supra, was overruled, it was never the law in this State. I say that one codefendant cannot take a judgment against another co-defendant on a separate unrelated claim not set up in the original action without service of summons or some like notice.
As to the second proposition in the majority opinion, I think it is fundamental that only that property under the mortgage that mortgagor owned can be foreclosed. The purchaser at sheriff’s sale can only get the property that the mortgagor actually owned and any interest owned by a person not properly made a party to the foreclosure will not be affected.
I dissent.