(concurring). Respondent Schnauber’s. tax deed having been treated by the trial court as void on its face, it should be so treated for the purposes of this appeal, not, perhaps, beqause respondents failed to appeal, but because any other course manifestly would be unfair to the plaintiff. The view of the trial court as to the form ojf the deed rendered unnecessary, if not improper any further attack upon the tax proceedings. To- now af firm its judgment against the plaintiff, on the theory that the deed was prima facie sufficient to sustain respondent’s claim of title, would, in effect, be to deprive the plaintiff of her property without any opportunity of litigating the tax proceedings. It is a case which forcefully illustrates the wisdom of the rule requiring an appellate court to adhere to the theory upon which a cause is tried in the court below. In all other respects I concur in the foregoing opinion.