DISSENTING- OPINION.
VALLIANT, C. J.The points on which this case turned in the majority opinion of the court are of so much importance that I deem it my duty to signify the reasons for my dissent.
I. The petition is criticised and is condemned as failing to state facts sufficient to constitute a cause of action. It does not appear to have occurred to the defendants that there was any defect in the petition until they reached this court. There was no demurrer filed or other challenge of the sufficiency of the petition in the circuit court. Of course, if the petition is fatally defective, if it states no eáuse of action, its infirmity may be shown at any stage of the litigation, but if it is only clumsy, or not clear in its statements, yet on a liberal construction the court can see with reasonable-certainty a cause of action stated, it is the duty of the court so to do. That is what section 1831, Revised *380Statutes 1909, requires. When an objection to the sufficiency of a pleading is made for the first time in an appellate court it ought not to be sustained unless it must be sustained. There is also another rule of pleading that should not be overlooked in this case, that is, that if the answer gives aid to the petition the aid will be taken into account.
a. It is said that this petition does not state that the plaintiff held title to the land at the date of filing the petition. It states that he held title on the day of the sheriff’s sale under which the defendants claim. It is a rule of evidence that a condition once shown to exist will be presumed to continue until the contrary is shown. Besides, the plaintiff could not say with truth that he held the title to this land on the day he filed this suit, because the title was then in the defendants, and the purpose of the suit was to vacate that title. The petition says it was the plaintiff’s land September 11, 1897, that it was then sold for taxes and struck off to a person from whom the defendants purchased and under whom they claim and that for certain reasons that sale was illegal and the prayer is that the deed which is the source of defendant’s title be can-celled. That would be a sufficient showing of the plaintiff’s title even under the common law contra proferentem rule of construction.
b. It is also said that the petition fails to state that the defendants had notice of the illegal acts of the sheriff in making the sale. It does not clearly appear from the petition whether the defendants were the purchasers at the sheriff’s sale or purchased from the purchaser at the sale, except in that part of the petition where the plaintiff offers to pay to defendants “the amount paid by them or their grantor” at the sheriff’s sale, together with taxes, etc.,* the words “or their grantor” might imply that the defendants were subsequent purchasers. But if there was a defect in the petition in this respect the answer came to its aid *381and cured the defect; it set out just how the defendants acquired title, namely, by purchase from Stacey, the original purchaser. And they aver that “the sale was made by the sheriff in manner, mode and fo"rm as prescribed by law,” and that they bought relying on the recorded deed to Stacey which did not show that the land was not sold in small- subdivisions, that they paid in full value for the land “without any knowledge of any irregularity of the sheriff in making the sale of said land.” Thus the defendants by their answer tendered the issue of innocent purchasers for value, and the plaintiff joined the issue in his reply of general denial. Therefore the plaintiff had the right at the trial of that issue to prove, as he did prove, that the defendants were not innocent purchasers for value, because they had bought under a quitclaim deed, stood in the shoes of Stacey and were charged with knowledge of what he knew, and he being present at the sale, knew just what was done, knew that the 160' acres were sold in one body without having first been offered in the smallest legal subdivisions.
c. It is also said that the petition is defective because it does not state that the plaintiff was injured by the sale of the land in a body. It states that the 160 acres were worth $1200 at the date of the sale, that the amount of the judgment for taxes was $9:87, that the land was susceptible of being divided into separate subdivisions of 40 acres each, either of which would have brought, more than the amount of the taxes with interest and costs, that the whole 160 acres were sold in a body for $115, no part of which was ever paid to plaintiff. Was there any use in his adding that he was injured thereby?
d. It is also said that the petition ought to have said that the sheriff in selling the land in bulk abused the discretion that the law confided to him. The argument treats the statute in question, section 3185-, Revised Statutes 1899, now section 2206, Revised Stat*382utes 1909, as if it imposed no obligation on tbe sheriff at all, saying to him in effect, You may or may not, as you please, divide the land in small lots and sell no more than is necessary to bring the amount called for in the execution, or you may sell the whole tract in bulk, if you so prefer; and that seems to have been the sheriff’s opinion in this case, as we shall presently see. But I do not so understand the statute, nor the decisions referred to in the opinion. The statute is: “When an execution shall be levied upon real estate, the officer levying the same shall divide such property, if susceptible of division, and sell so much thereof as will be sufficient to satisfy such execution, unless the defendant in the execution shall desire the whole of any tract or lot of land to be sold together, in which case it shall be sold accordingly.”
In Shelton v. Franklin, 224 Mo. 342, l. c. 361 and following, eases are referred to holding that that statute is directory. I do not understand when a court says a statute is directory that it means to say that the officer to whom it is addressed is at liberty to disregard it, nor. do the cases cited in that opinion so hold; if that is what the court means when it says a statute is directory, it might as well repeal the statute or adjudge it to be of no force or effect. In Shelton v. Franklin there was no occasion to say what would be the effect if the sheriff should abuse the discretion allowed him in the performance of the duty imposed by that statute, because there was no evidence in that case that the sheriff did not obey the direction given in that statute. The contention there was that the sale was void because the sheriff’s deed did not recite that the land was divided and so offered for sale as the statute-required, but the court held that the absence of such recital in the deed did not render it void. The court said l. c. 364: “There is no oral proof as to the sale being in solido and there is a presumption that the officer did his duty in conducting-the sale.” Therefore *383Shelton v. Franklin is no authority for saying that it devolves on the plaintiff in this case, not only to show that the sheriff disobeyed the law, but also that he abused the discretion given him by the statute; there are expressions in that opinion to that effect, but they were mere obiter dicta. Assuming that there is a discretion in the sheriff to be exercised when the circumstances justify a departure from the direction prescribed by the statute, it does not devolve on the injured party to prove that the officer not only violated the law but abused his discretion also; it is sufficient to show that he violated the law, and it then devolves on the party who would justify the unlawful act to show that the circumstances justified it. But the cases cited in Shelton v. Franklin do not in my opinion go to the extent of holding that the sheriff may at his pleasure disobey the statute. The first case cited, Rector v. Hartt, 8 Mo. l. c. 461, says: “We regard this statute-as directory. A violation of its injunctions will not make a sale void, although it may be good cause for setting it aside on proper application. . ... All that is intended to be said is, that a sale in mass by a sheriff, of distinct parcels of real estate, is not ipso facto void.” None of the cases following have gone farther than that. They all say that the failure of the sheriff to obey the law in this respect does not render the deed void so that it may be attacked in a collateral way, but that it is voidable in a direct proceeding to set it aside. [Morrison v. Turnbaugh, 192 Mo. l. c. 444.] None of the decisions cited say that the sheriff has a discretion to violate the law or that it devolves on the injured party, when he comes into a court of equity to complain of the violation of the law, to show also that the sheriff abused his discretion. But assuming that the sheriff had a discretion’ and that it devolved on the plaintiff to show by his pleadings and proof that the officer abused his discretion, the plaintiff’s pleading and proof, in my opinion, amply show that. Here are *384160 acres of land, which the petition says are easily susceptible of division, sold in mass under an execution calling for $9.87; what more could be said to show a gross abuse of the official power? The act speaks for itself; circumstances to justify it can scarcely be imagined. The sheriff as a witness in the case said: “I sold them that way (that is, in mass) because they were advertised in that shape. I had no particular reason for selling that way, any more, than there was a certain piece of land that taxes was due on and we wanted the taxes, we wanted all that could be made off of the land.” There we have a display of the discretion which the officer exercised. I cannot bring my mind to justify such a wanton abuse of power in direct violation of law whereby a citizen is deprived of 160' acres of land for $9.87 when, if the law had been obeyed, he would in all probability have lost only forty acres or even less.
II. The deposition of the plaintiff was taken and in it he made certain statements to the effect that he knew that the taxes had not been paid on this land, he had stopped paying them because the taxes increased from year to year, "and I had so many other uses for the money 1 had, I stopped paying the taxes, and the lands were sold for taxes.” On cross-examination as to why he had delayed so long bringing suit, he said he paid very little attention to the Pemiscot county lands. "Q. You did not consider the Pemiscot county lands as assets of your estate? A. That was about the way of it.” Much is made of that admission as showing a purpose to abandon the land, also as bearing on the question of laches, to which question I will return later.
First, the plaintiff’s wilful abandonment of the land. Does the motive which actuates a man in failing to pay the taxes on his land affect the consequence of that act in anyway? Suppose two- men each owning 160 acres of land lying side by side, one does not pay *385his taxes because he does not care for the land, or has other use for his money, the other does not pay his taxes because he is poor and has not the means, both are sued for the taxes, both make default and a judgment is rendered against each, an execution issues on each judgment, the sheriff sells each 160-acre tract in mass and each brings a suit in equity to set aside the sale for the failure of the sheriff to obey the statute, would there be any difference between them as to the right to have the sale set aside? Could the court say to the poor man, We will set aside the sale in your case because your failure to pay taxes was owing to your poverty; but to the other say, We will not set aside the sale in your case, because you were amply able to pay your taxes but thought you had better use for your money? Or suppose it should appear that the sheriff at the sale had said: “Whereas the statute says I shall divide this 160 acres into the smallest parcels into which it is susceptible of division, and so offer it for sale, but it has been held that the statute is only directory and that I have a discretion in the matter, therefore because this 160-acre tract is owned by a rich man who could well have paid his taxes if he would, but who has manifested an indifference to the land, I will not divide it, but offer the whole tract for sale to satisfy the $9.87 judgment.” Would any court listen to that statement as a lawful exercise of official discretion? Yet when reduced to plain English that is all the significance that can be attached to the evidence tending to show the motive that actuated the plaintiff in failing to pay the taxes on this land.
Assuming, for the argument, that the sheriff has discretion to violate the-law under circumstances that would justify it, there are no such circumstances in this case.
*386III. The testimony shows that this land, the whole 160-aere tract, was sold in mass, and that fact makes the wide distinction between this case and Shelton v. Franklin on which the majority opinion herein rests. It is said in the Opinion that the testimony on this point is not very clear, but I think it is as clear as can be. The sheriff who made the sale testified: “If I sold that piece of land I sold it in one body. During the time I was sheriff making sales for taxes, the land was sold in lots as advertised. ... If a lot was advertised as 160 acres it was sold all at once, it was not divided.” The uncertainty in the testimony referred to in the opinion is in the words, “If I sold that piece of land.” The only question left open by that testimony is did that sheriff sell that land? 'The sheriff’s deed in evidence under which the defendants claim answers that question, and with that question answered there is no uncertainty as to the fact that the land was sold in mass.
IV. I will now pass to what seems to me to be the main point on which the majority opinion rests, that is, that the plaintiff should be turned out of court because he has slept too long; he has been guilty of laches. It is not claimed that the plaintiff is barred by the Statute of Limitations. The sale was made September 11, 1897, the suit was brought April 12, 1906, leaving the plaintiff a margin of five months in which to bring his suit.
Laches is an equitable defense, it is allowed under equitable principles, but only under equitable principles. In a sense it is in derogation of the rights of the party under the Statute of Limitations, and therefore only allowed when right and justice call for it. Equity, even under the ancient practice, when it was not bound by the Statute of Limitations, conformed to a large extent to the terms of the statute, under the maxim, equity follows the law, and it did not refuse to *387follow it unless there were circumstances that appealed to a court of conscience to interpose its beneficent power. Sometimes eases arose when it would be inequitable to allow a claim because of the lapse of time, though short of the period prescribed by the statute, and in such cases equity closed its doors to the claimant. That was the origin of the doctrine of laches. Laches is not mere delay, it is prejudicial delay, the party pleading the defense must show not only the delay, but that owing to changed conditions which have taken place during the delay he has been injured.
Pomeroy, 5 Eq. Jur. (1 Eq. Rem.), sec. 21, says: "The true doctrine concerning laches has never been more concisely and accurately stated than in the following language of an able living judge: 'Laches, in legal significance, is not mere delay, but delay that works a disadvantage to another. So long as parties are in the same condition, it matters little whether oüe presses a right promptly or slowly, within limits allowed by law; but when, knowing his rights, he takes no step to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as estoppel against the assertion of the right. The disadvantage may come from loss of evidence, change of title, intervention of equities, and other causes; but when a court sees negligence on one side and injury therefrom on the other it is a ground for denial of relief.’ ”
That is the doctrine of this court as well as I have been able to learn it from the decisions. In all the decisions of this court to which the majority opinion refers where the defense of laches has been allowed to prevail, there have appeared not only delay and increased value of the property, but other circumstances which put the defendant at disadvantage in making his defense. For example in Bobb v. Wolff, 148 Mo. 335, l. c. 349, the court said of the plaintiff Bobb: "He *388waits until Wolff is dead and his children are deprived of all the evidence on his side, and stands by and sees Wolff’s estate finally settled without preferring his claim, and sees the real estate, including the land in suit, partitioned, and never once suggests that he has an equity of redemption in the land.” In Rutter v. Carothers, 223 Mo. 631, there is a discussion of the doctrine of laches in which nothing is said contrary to what is above stated as the elements of laches, and it concludes as follows: “The case at bar being barren of essential facts upon which to predicate the defense of staleness or laches, the point is ruled against the defendants.”
In 16 Cyc., pp. 162-163, the law is stated thus: “The most frequent case of laches consisting of delay working prejudice to defendant through change in circumstances is where plaintiff has slept on his rights, and permitted defendant to make valuable improvements on property in controversy, or to make large expenditures in reliance on his title thereto. . . . Where a suitor before proceeding permits such a lapse of time that the evidence has become obscured or lost, relief will be denied because of the difficulty, of doing justice.”
In this case it is true the plaintiff has delayed long in bringing his suit, but he has brought it -within the period allowed him by the statute. Mere delay, as the authorities quoted show, will not preclude the plaintiff on the ground of laches, there must be delay that has worked prejudice to the defendants.
What injury has the delay caused the defendants? No witness has died, no evidence has been lost. It is said that by the plaintiff’s long delay, nearly ten years, these defendants were induced to believe that he had abandoned any claim he had to the land and so believing invested their money in its purchase. But that is a mistake in fact. They purchased within less than three years after the sheriff’s sale and since their pur*389chase they have not spent a dollar in the improvement of the land; it was wild land when they purchased and it is wild land now. They have paid taxes on the land, but that the plaintiff offers in his petition to return to them, together with the amount paid by their grantor at the sheriff’s sale. In their answer they show that they were not influenced in making the purchase by any conduct on the part of the plaintiff, for they expressly say that they relied on the record of the sheriff’s deed to Stacey which was regular on its face.
Having examined the record they concluded to purchase from Stacey and paid him $800 for the land, which they say was its then full value. And .in the transaction they were acting under the advice of a gentleman learned in the law, yet, paying full value, they took a quitclaim deed. They cannot therefore say that they acted unadvisedly and did not know the effect of a quitclaim deed. The deed they took put them in Stacey’s shoes and charged them with knowing what he knew, and he knew that the sheriff in making the sale acted in violation of the law.
But they say that during the delay the land has increased in value, therefore the plaintiff is guilty of laches. If the increase in value had resulted from any improvement the defendants had put upon it, there might be some reason for asking a court of conscience to apply the doctrine of laches to the plaintiff’s suit, although even that may be doubted since they bought with knowledge that the land was sold by the sheriff in violation of law, whereby 160' acres were sold in a body under an execution calling for only $9.87. But the increased value of the land was in no degree influenced by the expenditure of money or labor by the defendants. The answer of defendants itself shows that the increased value was caused by the building of a railroad near the land, and a system of drainage at the public expense.
*390It is true every man ought to pay his taxes to support the State government, and if he fails to do so he ought to suffer the penalty prescribed by law, and the purchaser at a tax sale,, conducted according to law ought to have what the law gives him, but I do not see any reason for making him a special ward in chancery, or for a court of equity in such case to deny the land owner his legal remedy.
In my opinion the judgment ought to be reversed, and the cause remanded with directions to enter a decree in favor of the plaintiff cancelling the sheriff’s deed.
Brown, J., concurs in these views.