Mangold v. Bacon

GRAVES, J. — This cause has been so much discussed and written upon that I am impressed with the idea that a further and fuller statement of the'pleadings and evidence should be made. Plaintiff, who was successful below, lodged his petition with the circuit court of Butler county, the substantial allegations of which are as follows: He avers (1) that on February 12, 1902, he was the owner of the land involved in this suit; (2) that on February 13, 1902, he conveyed the same to William L. and Frances C. Hogan, husband and wife, for the price of nine hundred dollars; (3) that such-grantors paid $100 cash and executed their notes and deed of trust for the balance; (4) thereupon Hogan and wife entered into possession of the property; (5) that on September 10, 1903, the collector of revenue for the county of Butler instituted suit against plaintiff, the two Hogans, Daniel Cochran, S. W. Foster and E. E. Pennington, the purpose of which suit was to enforce the State’s lien against the land involved in this case for bach taxes then delinquent for the years 1900 and 1901; (6) the petition then alleges due service of process upon the plaintiff Mangold and others; (7) that Mangold, with a view of stopping further proceedings as against the land in which he was interested as a beneficiary in a deed of trust, wrote to Souders, collector of revenue for Butler county, to obtain a statement of the amount of taxes due on the land in question; (8) that in December, 1903, said Souders did send to plaintiff Mangold a statement of the full amount of taxes due on the land in question, together with penalties, fees and costs; (9) that said Mangold upon receipt of a letter from the collector, sent to the collector the taxes, penalties, — 465 — fees and costs on the land involved in this suit for the years 1900 and 1901, in the sum of fifteen dollars; (10) that upon the payment of the sum aforesaid to said collector, Souders gave to the plaintiff Mangold a receipt for the taxes and penalties due on said land for the years aforesaid and marked the same paid npon the books of said collector’s office, and that by so doing said land became fully discharged of the State’s lien for back taxes for the two years aforesaid; (11) that after due service of process npon the' two Hogans, as well as upon the plaintiff, and on the 31st day of December, 1903, said Hogan conveyed the land in question back to the plaintiff Mangold.; (12) said Mangold then avers in Ms petition that he relied upon the fact that he had paid the taxes, together with the penalties, for the years 1900 and 1901, on said land, and therefore paid no further attention to the tax suit instituted against him and others, aforesaid; (13) he also alleges that it was his belief that said suit would be dismissed at the proper time by the said collector Souders, and for that reason paid no further attention to the suit, but he fails to allege that there was ever any payment of accrued costs in the suit or any agreement that the suit would be dismissed without payment of costs by him; (14) that after due service of process, under the facts above detailed, judgment was taken against the defendants in said tax proceeding, not only for the costs of the proceeding, but for the taxes for the two years of 1900' and 1901, together with the penalties accruing by virtue of law upon said taxes; (15) that in pursuance of such judgment, regularly entered by the circmt court as aforesaid, and without any charge of fraud in the petition as against the collector or his attorney, execution was issued and the land sold to defendant Bacon for the aggregate sum of $12.50. — 466 — There is a statement in the petition thus reading: “Plaintiff further states that pursuant to said advertisement, as áforesaid, the sheriff of Butler county, Missouri, without the knowledge or 'consent of this plaintiff or either of his co-defendants, did on the 6th day of October, 1904, sell said land at public outcry to the highest bidder.for cash, and that this defendant, Ernest Bacon, did then and there bid in said land for the price and sum of twelve dollars and fifty cents, which amount plaintiff now and here tenders and offers to refund to said Bacon, and plaintiff says that said land was then and there well worth the sum of one thousand dollars.” This is the only allegation in the petition with reference to the value of the land or with reference to the sale thereof at an inadequate price. Theré is no charge in the petition from beginning to end that the land sold for an inadequate price by reason of anything occurring from the date of the tax judgment to the date of the sale. In other words, the petition is clearly based upon the idea that the mere fact of the taxes having been paid between the time of service in the tax suit and the time of judgment, rendered the judgment void. Not only so, but it was void notwithstanding there was no allegation that any actual fraud was perpetrated by the collector, or any agreement between M'angold and the collector that the tax suit theretofore commenced should be dismissed without cost to Mangold or to those in privy with him. No claim is made that the collector fraudulently procured the judgment. No claim is made that the collector agreed to.see to a dismissal of the tax suit. No claim is made that Mangold had ever paid the accrued costs in the tax suit. No denial is made that the suit was properly brought. In-fact, it. stands admitted that the suit was properly brought, and that the taxes for the two years were due — 467 — at the time. The petition when analyzed from end to end, considering every averment therein, plants plaintiff’s right to relief upon the sole ground that he, as a beneficiary in a deed of trust, had paid the acknowledged taxes and penalties for the two years, after suit had been brought, and for that reason, and for no other, the judgment was void or voidable, and therefore the sale thereafter made was inoperative and conveyed no title. Although he admits he was served with process, he makes no claim that he attempted to pay the costs of the proceeding, or that he had any agreement with the collector, that when he paid the taxes and statutory penalties, the suit should be dismissed. There is no allegation in the petition that the defendant, Bacon, had any knowledge of any irregularity in the judgment. There is no allegation that Bacon knew what occurred between Mangold and the collector. There is not, and could not be under the facts, any question that the judgment was not regular upon its face. The petition does not ask that the sale be set aside on account of gross fraud either in the concoction of the judgment, or by way of collusion or other fraud after the judgment. The petition squarely plants the case on the ground, not that the sale was void by reason of anything done by Bacon, or even after the judgment, but on the ground of proof of the fact that Mangold paid the taxes, interests and costs after suit and before judgment. When we use the words “taxes, interests and costs” in this opinion we do not use them in the sense that there was a payment of any costs already accrued in the circuit court. The evidence is all to the contrary. The statement sent to the collector, and the amount paid by Mangold, only covered the taxes, interest and .county clerk’s costs and so showed upon its face. At least it could be readily determined by Man-gold, who had been served with process, that the statement received only included debt and costs prior to the institution of the tax suit. This much is clear — 468 — from all the pleadings and evidence, and it is further clear that the collector made no agreement with Man-gold as to the disposition of the suit then pending. At this time Mangold filed no answer in the case. By the petition in the present case not an irregularity is charged from the date of the judgment to the date of the sale, except the allegation we have quoted as to the price paid for the land at the sale, and the incidental claim as to the value of the land. In the course of the trial the following occurred: “Q. You may state to the court what you think would he a fair value to place on that land in October, 1904? “Mr. Green: If the court please, we desire to object to that for the reason that it is incompetent, irrelevant and immaterial, and it is tending to establish no issue in this case; the value of the lands has nothing to do with the cloud on the title. “The court: I don’t think it does. “Plaintiff excepts to the ruling of the court. “Mr. Green: We insist on his sticking to one specific matter pleaded; whether the payment of the taxes by Mangold makes the judgment void, or not. “The Court: I don’t think the value of the lands makes any difference in this suit. Of course sales have been set aside when it was shown that inadequacy of price was such as to shock the conscience of the court. I think this a matter as to whether the payment of the taxes renders the judgment void.”- Later there appears the following in the record: “By Col. Phillips: “Q. You say then, Mr. Cochran, that if you hadn’t thought the matter was all settled the land wouldn’t have been sold at the tax sale for the price it did? A. That’s what I said. “Q. Do you know the value of the land at the time it sold? A. Yes sir. — 469 — “Mr. Green: We desire to renew onr objection to this line of evidence, as being incompetent, irrelevant and immaterial, and tending to prove none of the issues in this cause. “The court: I will hear it, subject to your objections. “Mr. Green: We except. “Q. What was the land worth on the 6th day of October, 1904? A. It was worth one thousand dollars. “Col. Phillips: This is our case, your honor.” The testimony of this witness Cochran is of further interest. He had at one time been owner of the land. He was a party to the tax proceeding, but at the date of the suit had no apparent interest. When first placed upon the witness stand he gave some important testimony as to knowledge that Mangold possessed as to the sale of this property. Of course Mangold denies knowledge of the advertised sale, but when the testimony of Cochran, with the dates named, is considered, the reasonable impression is that Man-gold was at all times, as his petition shows, relying npon^he fact that he had paid the taxes, and was disregarding the judgment. This evidence reads. “By Col. Phillips: “Q. State your name please. A. Dan Cochran. “Q. You are acquainted with the southeast quarter of the southwest quarter of section 2-23-5 east, Butler county, Mo.? A. Yes, sir. “ Q. I will ask you if you owned that land at one time? A. Yes, sir. “Q. You were one of the defendants in a tax suit against the land for taxes for the years 1900-1901, were you not? A. Yes, sir. “Q. Tell the court, if you know, about the taxes being paid on that land, and who paid them? A. Mr. Mangold — all I know is that Mr. Mangold told me to come in and pay them. — 470 — “Cross-Examination: By Mr. E. A. Green: “Q. When was that? A. November or December of that year. “Q. What year? — 1903? A. I don’t remember exactly when he told me — paid no attention as to that. “Ré-direct Examination: By Col. Phillips: “Q. And that is the reason yon didn’t pay them? A. Yes sir. “Q. Did you know anything about the sale of the land? “Mr. Green: We object for the reasons mentioned — he is presumed to know. “The Court: Objection overruled. “Mr. Green: We except. “Q. Do you know about it? A. Yes, sir. “Q. What do you know about it? A. It ivas advertised, but Mr. Mangold told me the taxes were all paid and I didn’t pay any more attention to it. It wouldn’t have been sold for the price it ivas if I hadn’t thought Mr. Mangold told me the truth about it. “Re-cross examination: By Mr. Green: “Q. You knew then that the land was advertised? A. Yes, sir.” As indicating the plaintiff’s own construction of his petition the prayer thereof will best serve: ‘ ‘ That said judgment, together with said deed based thereon, constitutes a cloud upon plaintiff’s title to the above described premises, and that by reason thereof, this defendant is asserting title to said premises. Wherefore, the premises considered, plaintiff prays that said back tax judgment rendered as aforesaid be by this court declared to be null, void and of no effect, and that the sheriff’s deed from Hogg, sheriff as aforesaid, to this defendant, be cancelled, annulled and for naught held,” etc. This record will require the consideration of several questions. First the real situation of the tax judgment under the pleaded and proven facts, and — 471 — second, and not the least important, the theory npon which the case was tried below, and therefore the theory upon which it should be tried here. Other questions may have to be discussed, but the two stated have been foremost in our mind. Such others as may be necessary will be discussed, and owing to the importance of the issues, will be discussed without reserve, so far as the individual views of the writer are concerned. I. To our mind the first and most important question involved is the theory upon which the case was tried below. One cannot read the petition and the prayer thereto, without knowing that the idea of the plaintiff, and his distinguished counsel, was .that the mere payment of the taxes due, after suit, rendered the judgment voidable. In other words, that when proof of such ijact was made, the judgment for taxes was void, and for that reason all subsequent transactions, including the sale and tax deed, were void. The petition, elaborate as it is, does not count on fraud in the actual sale. If charges no collusion between the purchaser and the officer conducting the sale. It charges no knowledge upon the part of Bacon that there was even irregularity in the judgment. It does not, except inferentially, charge inadequacy of price. To say that this petition is based upon the idea of mere inadequacy of price at a tax sale, would be to distort the language of distinguished counsel who drew it. In every line of the petition can be read the idea that counsel were of the opinion that the tax judgment was void, and that on the sole idea that the taxes had been paid between the date of the institution of the suit and the date of the judgment. Not a line in the petition suggests wrong upon the part of the purchaser at the tax sale, nor actual fraud, in the concoction of the judgment. The sole idea of the pleader seems to have been that the proof of the fact that the taxes had been paid — 472 — nullified the judgment, and through this nullification of the judgment all subsequent steps failed. In this we think the conclusions of law were wrongly-drawn. Had the petition charged fraud in the very concoction of the judgment, then such question would be before us, but such is not the charge, nor can it be read therein. Had the petition charged the payment of the acknowledged debt, by Mangold, and further charged an agreement to dismiss the pending suit, without cost to Mangold, the question here would be different. It is not the province of this court to make and frame issues for litigants. Under the law we determine the question of error or no error upon issues framed and tried below. It would be useless to count the eases wherein we have held that the case must be tried here upon the same theory as it was tried below. In other words, if the parties adopt a theory below, and try their case upon that theory, it must be determined here upon the same theory. A very recent one is Riggs v. Railroad, 216 Mo. l. c. 318. In the case at bar the case was tried upon the theory that the payment of those taxes released the State’s lien upon this land, and a judgment thereafter on such lien was void. The pleader evidently had in view the case of Harness v. Cravens, 126 Mo. 233. That case would be clearly distinguished from this in that the purchaser had knowledge of the facts relied upon to defeat the tax judgment, and in this case there is neither allegation nor proof of such fact. But there is much said in that opinion which has never been approved by this court from the day it was written, and in Hampton v. McClanahan, 143 Mo. 501, Division One of this court practically placed a stamp of disapproval upon the broad language used by the writer of the opinion in the Harness case. In this Hampton case Division One of this court in effect concurred with the views of Gantt, P. J., of Division Two, — 473 — in Ms views expressed in the Harness ease. If the views of Sherwood, J., in the Harness case, have since been recognized by this court, such recognition has escaped my observation. In the very late case of Evarts v. Lumber and Mining Co., 193 Mo. 433, Division No. One again in effect disapproved of the views expressed by Sherwood, J., in the Harness case, supra, and again adopted the views of Gantt, P. J., that a tax judgment must stand upon the same basis as any other judgment of a court of record. Following several previous opinions we then said: “The rule in this State also is that a judgment in a tax suit cannot be collaterally attacked by one who was a defendant in that suit, and who was properly brought in by personal service or by publication,'nor can the title of a purchaser under such a judgment be defeated by showing that the taxes, for which the judgment was rendered, had been paid before the institution of the suit, before the judgment was rendered, or before the sale under the judgment. [Hill v. Sherwood, 96 Mo. 125; Jones v. Driskill, 94 Mo. 190; Gibbs v. Southern, 116 Mo. 204.]” This is certainly true in a case where it is not even charged that the purchaser under the tax judgment had any knowledge of fraud in the concoction of the judgment. There can be no valid reason assigned for a different rule for tax judgments. If a party is duly served with process in a tax proceeding, and fails to exercise diligence in making a proper defense, he is precluded by the judgment, although in fact there has been a payment of the debt and a discharge of the lien. Thus in the late case of Rankin v. Real Estate Co., 199 Mo. l. c. 350, we said: “It is also further contended that at the time the tax proceeding was instituted, by an amendment of the statutes, the lien for city taxes was given to the city of Sedalia, and the suit could not be maintained in the name of the State for city taxes, and for that — 474 — reason the judgment is void. What has been said above as to appellant’s first contention applies with equal force in reply to this second contention. If the suit was for city taxes, as in fact it was, then the defendant in the tax proceeding should have raised by proper plea the question of the right of the State to enforce the lien for city taxes. This was not done, and judgment followed. John Jones may not have a right to enforce a lien against my property, but if he brings suit so to do, and I, after being duly served with process, permit him to obtain a judgment enforcing the lien, I would be in no position to attack the judgment collaterally. This second contention is therefore ruled against the appellant, without however expressing any opinion upon the question as to whether or not suits for city taxes must be brought in the name of the city rather than in the name of the State. It is not necessary for the disposition of the ease at bar to pass upon that point.” These cases and others we may revert to later. At this time we only desire to emphasize the fact that in the trial below the plaintiff was proceeding, both by his petition and proof, to set aside this tax judgment upon the theory advanced in the Harness case, supra, and with no allegation of fraud in the concoction of the judgment. Having so proceeded below, such must be the theory of his case here. F'or the present it might be granted that plaintiff might be able to show fraud in the concoction of the judgment, and that defendant had knowledge thereof, and defeat the sheriff’s deed, but such is not the theory of the petition, nor the course of trial nisi. For this error the case will at least have to be reversed and remanded to the end that plaintiff by proper petition and proof may bring himself within the recognized rule in this State. If he desires to plead fraud in the concoction of the judgment and that defendant had knowledge of such fraud he may do so. — 475 — II. In another respect the position -taken here is contra to the theory of the' trial below. Nowhere in the petition is the question of fraud mentioned in connection with the question of inadequacy of price. As to Bacon the most that is charged is that he bought land for $12.50 which was worth $1000. No fraud, collusion or other wrong circumstance is either pleaded or proven. The case was not tried even upon the theory that inadequacy of price was a material element. When the question of the value of the land first came up, the trial court promptly ruled that under the petition such question was not in the case. It is true later one witness was permitted to state the value of the land “subject to the objection,” but the record shows that such objection was never passed upon by the court, and further shows that defendant offered no evidence upon the question of inadequacy of price. It is clear to our mind that the defendant was relying upon the first ruling of the court as to such evidence being incompetent under the pleadings. The judgment and findings of fact in the judgment make prominent the fact that the price paid “was grossly inadequate.” The judgment then proceeds to first declare the tax judgment void, and then the deed made thereafter void. The question of inadequacy of price was never tried out in the court below. Counsel claim in the briefs that they can show that such alleged inadequacy of price was not such as should affect the, sale, and that they could have so shown but for the action of the court. We are of opinion that the trialof this issue, under this record, was precluded by the action of the court, and if it were to be made a determining question in the case, as it was, it should have been tried out •on the facts. We think that a trial of this issue was precluded by the conduct of the trial court, and a judgment largely, or partly, founded upon such issue should not be permitted to stand until the issue is tried out upon the facts. Especially is this true where — 476 — the petition does not in plain terms count upon inadequacy of price as a ground to set aside the sale. As stated before, this petition when properly digested, proceeds upon the theory of the Harness case, supra, which case this court has never since followed. The pleader clearly proceeded upon the theory that the payment of the taxes discharged the State’s lien, and rendered the judgment void, and not upon the theory that inadequacy of price was superinduced by the conduct of any person connected with the case. On the idea that this question was in the case, the cause should be reversed and remanded to the end that such question can be tried upon proper evidence. Here again we áre asked to affirm a judgment upon a theory of the case not adopted nisi. This we have continually refused to do. [Shelton v. Franklin, 224 Mo. 342.] in. If the case is to be retried another bit of evidence deserves some consideration at the hands of the chancellor. Daniel Cochran was a witness in behalf of the plaintiff. His testimony strongly tends to indicate that the plaintiff knew that this land was advertised for sale under a tax judgment. The testimony is not as clear as it might be, but no effort was specially made to develop the point. As we have indicated, the theory of plaintiff seems to have been that when he had shown a payment of taxes prior to the judgment, that of itself voided the judgment, and no further proof or pleading was necessary. This theory is erroneous. So that if upon retrial it should develop, that the evidence, as Cochran’s testimony (fragmentary and incomplete as it is) tends to show, shows that plaintiff in fact knew that the land was advertised for sale under what he (plaintiff) claimed was a voidable judgi ment, and plaintiff with that knowledge stood aloof and gave no notice to protect purchasers under such judgment, there would be no doubt that plaintiff would be estopped from undertaking to attack a title that he thus permitted to pass. At least it would be a serious — 477 — matter for consideration in a fair disposition of the case. There is nothing in the present record to show that defendant had knowledge such as to place him upon inquiry, as in the case of Zweigart v. Reed, 221 Mo. 33.] If therefore the evidence should turn out that Mangold, following the idea of his petition, to the effect above stated, had actual knowledge that his land was being sold under such alleged voidable judgment, and stood by and permitted one with no knowledge of the things dehors the record which made the judgment void, he would have but little standing in a court of conscience. It is not exactly clear what is meant by the witness Cochran, whose testimony we have copied practically at length. We gather from it the idea that he and Mangold both knew the property was advertised for sale, but that he (Cochran) refused to bid, because Mangold had told him that the taxes had been paid. This theory of the evidence is corroborated by the petition of the plaintiff. For the reasons (1) that the petition is not framed upon the proper theory, and (2) that the theory pressed here to sustain the cause below is totally different from that adopted below, we feel that the cause should be at least reversed and remanded. To this end we have made the suggestion in this paragraph. Other questions involved we take up next. TV. Passing for the moment the question of the sufficiency of the petition as a bill directly attacking the judgment upon the fact of fraud in the concoction of the judgment, and granting it to be true that a charge of inadequacy of price was properly made by the petition and sustained by the proof, yet what further facts have we which would authorize us to set aside this sale? Mere inadequacy of price alone will not do so under a long line of cases in this State. Tax sales, under tax judgments, are not different from other judicial sales. We have at last reached a — 478 — period in Missouri jurisprudence where a tax sale, under the present statutes, has the same status as other execution sales. As to judicial sales in the early case of Hammond v. Scott, 12 Mo. l. c. 11, this court said: “We do not subscribe to the principle contended for by the complainant’s counsel, that inadequacy of price alone is sufficient ground for setting aside a sheriff’s sale. On the contrary, where the sale has been an open, fair and public one, where there has been no act done or superinduced by the sheriff or purchaser to prevent the property from selling for a higher price, public policy would indicate that such sales, although attended with great pecuniary loss, ought to be upheld and sustained. If the principle was recognized, its application would be entirely arbitrary, as no rule could be established to govern the innumerable cases that arise.” So also in Nelson v. Brown, 23 Mo. l. c. 21, wherein a sale was set aside because of irregularities known to the purchaser, we reannounced the same doctrine: “There is no innocent purchaser here. The plaintiff in the execution becomes the purchaser at the sale for his own benefit; is present and privy to all that transpires. Under such circumstances, he is a purchaser with notice in fact, and is affected by the irregularities which occurred. We do not maintain that mere inadequacy of price is sufficient to set aside a sheriff’s sale. But where there is a gross inadequacy of price, courts will require that there be a strict regularity in the proceedings. The irregularities attending the sale in question were such that it must be set aside.” In the case at bar no irregularity is charged or proven as against Bacon or the officers making the sale. No charge is made except as to the method of procuring the judgment and that question we take up later.- — 479 — In the case of Meir v. Zelle, 31 Mo. l. c. 332, we said: “The sale appears to have been conducted fairly and properly in all respects,' and mere inadequacy of price is no ground for setting it aside where this is the case.” In this case the price paid was less than ten per cent of the value of the property. Our court has consistently followed the doctrine of these early cases. See the following: Walker v. Mills, 210 Mo. 684; Derby v. Donahoe, 208 Mo. 706; Welch v. Mann, 193 Mo. 327; State ex rel. v. Elliott, 114 Mo. App. 562; Martin v. Castle, 193 Mo. 183; Cubbage v. Franklin, 62 Mo. 364; Wagner v. Phillips, 51 Mo. 117; Hammond v. Scott, 12 Mo. 8; Gordon v. O’Neil, 96 Mo. 350; Briant v. Jackson, 99 Mo. 585; Cobb v. Day, 106 Mo. 278; Phillips v. Stewart, 59 Mo. 491; Walters v. Hermann, 99 Mo. 529; Landrum v. Bank, 63 Mo. 48; Holden v. Vaughan, 64 Mo. 590; Railroad v. Brown, 43 Mo. 297. This court has never subscribed to the doctrine that mere inadequacy of price alone would vitiate an execution sale. We have been particular to closely scan the record for irregularities and for fraudulent conduct upon the part of the officers and the bidders,' but in no instance have we set aside a sale for mere inadequacy of price. There may be and perhaps there are courts following such rule, but it is a dangerous one. Too many things enter into a sheriff’s sale under execution for a court to undertake to determine what, under each peculiar case, would be an adequate price. Courts should see that their sales are conducted fairly, and inadequacy of price may be a circumstance tending to show that they were not so made. However, this court has never gone to the extent of holding that mere inadequacy of price alone should obviate an execution sale. Nor do I think we should go so far. Further, I do not think there should be any difference between tax executions and other executions. If the sale is fairly conducted the result — 480 — should he the same in each. If there should be any difference, it should be in favor of the State trying to collect taxes for governmental purposes, but in law there can he no good reason assigned for a difference. Defendants served in tax proceedings should stand just where defendants in other law suits stand. Sales under tax judgments should stand just where other judicial sales stand. The State should stand, in the collection of its tax debts, just where other litigants stand. The conduct of its agents should not affect judgments where the conduct of other litigants would not affect them. Nor should the conduct of its agents as to sales affect sales more than the conduct of other litigants and their agents. Leaving out the question of the alleged fraud in the concoction of the judgment there is not a thing charged or proven to authorize the setting aside of this tax sale. The matter of fraud in the judgment, and defendant’s relation thereto, we take next. Y. It has been suggested in Division that the petition charges fraud in the concoction of the judgment. To this we do not agree, as indicated in the first paragraphs of this opinion. We concede that facts may be alleged from which a charge of legal or actual fraud may be inferred, but the fraud specifically charged or to be inferred must be as to the defendant in the suit. In the case at bar the petition totally fails to charge a fraud, legal or otherwise, as against the defendant Bacon. It does not even allege that Bacon had any knowledge of the fact that taxes had been paid prior to the judgment under which he bought. The regularity of that judgment upon its face is not questioned. It is only by facts dehors the record that such judgment could be impeached. These facts plaintiff knew and defendant did not know so far as the record now shows. Plaintiff by an uplift of a hand could have prevented a judgment. — 481 — Plaintiff could have by a sound of his voice, according to one of his own witnesses, warned defendant of the hidden dangers in the judgment under which he bought. But be this as it may, the plaintiff has not seen fit to charge defendant with knowledge of things which would render a sale to him void under the judgment for taxes before us. Of all things patent defendant must take notice, but all things not patent the petition should charge, and the proof show knowledge thereof. [Shelton v. Franklin, 224 Mo. 342.] As to whether Bacon had any knowledge of the alleged irregularities in this judgment and sale, neither the petition nor the proof shows. The petition does not so charge nor does the proof so show. The record before us would tend to show that Bacon bought without knowledge of the facts dehors the record that would tend to vitiate the judgment. Plaintiff did not see fit to plant his caso below upon this theory. Whether he can show such knowledge upon the part of Bacon, we do not know! At this time it appears that plaintiff was resting upon some of the broad language in the Harness case, which the court has ever since disapproved. We would be justified in reversing the case outright, under Evarts v. Lumber Co., 193 Mo. 452, and the cases therein cited, but in view of the fact that plaintiff may be able to plead and prove such knowledge upon the part of the defendant as would preclude him from the fruits of his purchase, we think the safer plan is to reverse and remand the case. Following the recent Shelton case, supra, the petition should allege, and the proof show, some knowledge on the part of Bacon that there was fraud in the concoction of the judgment or that there was some inadequacy of price coupled with other facts tending to show collusion or fraud in the sale. These facts do not so appear in pleading nor proof, and may never so appear, but as we are impressed with the idea that a wrong theory, as to pleading was — 482 — adopted by plaintiff, tbe safer plan is to reverse and remand the Case. The opinion in Evarts v. Lumber Co., 193 Mo. 452, and the cases prior thereto and cited therein, would really require an absolute reversal of the case. Following the safer plan, let the judgment be reversed and the cause remanded, to be further proceeded with in accordance with the views in this opinion expressed. Fox, C. J., Gantt and Burgess, JJ., concur; Lamm, J., dissents in separate opinion, in which Valliant and Woodson, JJ., concur.