(dissenting). — I respectfully dissent from the conclusion reached in the above opinion.
The majority opinion holds that, under the facts of this case, the trustee was not a necessary party to the original action to set aside the deed of trust and the trustee’s deed thereunder; and that the trial court erred in vacating and setting aside the default judgment in question. The judgment was vacated by the trial judge on the theory that the failure to join the trustee was an irregularity patent upon the face of the record and was a sufficient irregularity to sustain a motion based on such ground.
As applied to the facts of this case the opinion holds that the grantor in a recorded trustee’s deed conveying title to real estate *946is not a necessary party to an action to set that deed aside for fraud in the foreclosure sale prior to the execution and delivery of the deed; and that, although such facts are pleaded and clearly appear on the face of the record in a default case, it is not such an irregularity as will sustain the trial court’s action in setting the default judgment aside, on motion, filed within three years.
As stated, the original action not only sought to set aside a deed of trust, but to set aside the trustee’s deed thereunder. Appellant alleged the execution and delivery of the trustee’s deed by J. E. Smith, trustee, “whereby he purported to transfer to the defendant the above described real estate.” It was charged in the petition that “the foreclosure sale aforesaid was fraudulently and unlawfully conducted by defendant and by said J. E. Smith, who was acting at the instance of defendant,” but J. E. Smith was not named as a defendant in the action.
Cases holding that a trustee in a deed of trust is not a necessary party to a proceeding to have the deed of trust declared to be a prior lien (Rogers v. Tucker, 94 Mo. 346, 7 S. W. 414); or that the trustee is not a necessary party to a court action to foreclosure of the deed of trust (Sidwell v. Kaster, 289 Mo. 174, 232 S. W. 1005) or to determine the priority of a deed of trust as to other liens (Badger Lumber Co. v. Goodrich, 353 Mo. 769, 184 S. W. (2d) 435, 440) are not controlling.
The default judgment entered in the original cause expressly ordered and adjudged “that the foreclosure sale made on February 13, 1942 by J. E. Smith, as Trustee, pursuant to a Deed of Trust from plaintiff to J. E. Smith as Trustee, and recorded in Book 71 at Page 362 of the Deed of Trust Records of Scott County, Missouri, at which said foreclosure sale defendant was the purchaser for the sum of Two Hundred Twenty-five Dollars ($225.00), and at which sale defendant received a Trustee’s Deed from the said J. E. Smith to said real estate, which is recorded in Book 126 at Page 618 of the Deed Records of Scott County, Missouri, be, and the same hereby is, set aside and for naught held; * * * and * * * that the Deed of Trust dated December 19, 1940 and recorded in Book 71 at Page 362 of the Deed of Trust Records of Scott County, Missouri, has been paid and discharged * * *” (by the accounting covered by the judgment).
The majority opinion concedes that it is well settled that an irregularity for which a judgment may be set aside “need not be one which would render the judgment absolutely void and therefore subject to be defeated on collateral attack.” It further concedes that, “particularly, since the petition alleged that the foreclosure sale was fraudulently conducted by respondent and the trustee, it would have been proper and, perhaps, customary to join the trustee as a party defendant.” Nevertheless this court has ordered the judgment vacating the default judgment reversed.
*947Respondent, within the time fixed by Sec. 511.250 filed his motion to vacate and set aside the judgment for irregularities patent on the face of the record. This was a direct and not a collateral attack upon the judgment. Ray v. Ray, 330 Mo. 530, 50 S. W. (2d) 142, 143; Reger v. Reger, 316 Mo. 1310, 293 S. W. 414, 421; Crabtree v. Ætna Life Ins. Co., 314 Mo. 1173, 111 S. W. (2d) 103, 106; Jefferson City Bridge & Transit Co. v. Blaser, 318 Mo. 373, 300 S. W. 778, 780-781; Shepard v. Shepard, 353 Mo. 1057, 186 S. W. (2d) 472, 475.
We think the weight of authority supports the view that J. E. Smith, trustee, as grantor in the trustee’s deed was a necessary and proper.party to an action to cancel that deed. The applicable general rule is well stated in 12 C. J. S. 1028, Cancellation of Instruments, Sec. 52, as follows: “All parties to the instrument sought to be cancelled are necessary parties to the suit for cancellation, either as plaintiffs or as defendants, unless it is obvious that the one not joined has no interest whatever in the subject matter of the suit.” And see 12 C. J. S. 1033, Sec. 54(2); 9 C. J. 1230, Sec. 139; 9 Am. Jur. 395, Cancellation of Instruments, Sec. 54; Kidd v. Schmidt, 345 Mo. 645, 136 S. W. (2d) 72, 74; Davidson v. Gould (Mo. App.), 187 S. W. 591. J. E. Smith was charged with having conveyed the property to respondent in breach of his trust. In such situation it cannot be said that he had no interest whatever in the subject matter of the suit-. In an action to sét the trustee’s deed aside, respondent as grantee in the trustee’s deed was entitled to have the grantor, Smith, made a party defendant in the cause, unless that right was waived by respondent. In a somewhat similar situation in the case of Borth v. Proctor (Mo. Sup.), 219 S. W. 72, 74, this court said: “The trustee should have been a defendant because of his trusteeship and as the person accused of the fraud to be redressed.’ ’ Clearly, we believe that J. E. Smith, trustee, as grantor in the trustee’s deed was a necessary party to an action in. equity for its cancellation on the ground of fraud. Kidd v. Schmidt, supra; Hannibal-St. J. R. Co. v. Nortoni, 154 Mo. 142, 149, 55 S. W. 220; Fairgate Realty Co. v. Drozda (Mo. Sup.), 181 S. W. 398, 399.
Since on the basis of the allegations contained in appellant’s petition J. E. Smith was' a necessary and proper party, his nonjoinder was a defect and an irregularity patent on the face of the record. The record clearly disclosed the want of adherence to some prescribed rule or mode of procedure consisting of omitting to do something that is necessary for the due and orderly conduct of a suit for which relief could be granted, on motion, at a subsequent term and within the time provided by Sec. 511.250. Downing v. Still, 43 Mo. 309, 316; 49 C. J. S. 496, Sec. 276. And see Boggess v. Jordan (Mo. App.), 283 S. W. 57, 59.
We find no waiver by respondent of appellant’s failure to join J. E. Smith as a party defendant. Under the provisions of our *948former Code of Pleading, it was uniformly'held in cases in which the defend/mt appeared'and contested the cause that a defect of parties was waived by a failure to raise the point by demurrer or answer. Rideout v. Burkhardt, 255 Mo. 116, 164 S. W. 506, 508; Eurengy v. Equitable Realty Corporation, 341 Mo. 341, 107 S. W. (2d) 68, 70; Automatic Sprinkler Co. of America v. Star Clothing Mfg. Co., 306 Mo. 518, 267 S. W. 888, 892; Williams v. Hines (Mo. App.), 229 S. W. 414. The provisions of the present Civil Code have hot changed this rule.
The case of Borth v. Proctor, supra, was a suit to set aside a foreclosure sale under a deed of trust and there was a decree 'for the plaintiffs. Upon appeal this court noted the nonjoinder of the trustee as a party defendant, as mentioned supra, but stated (219 S. W. (2d) 72, 74): “No objection having been made at any stage of the proceeding because' of a defect of parties defendant, .we shall dispose of the appeal as we would were all the proper parties on the record.”
The .trial judge, who entered the default judgment, heard the evidence on the motion to set aside and set'the default judgment aside. There was no evidence to support a finding of intentional default on the part of either respondent or his attorney and without an intention to default we believe there was no waiver, unless by the express terms of the statutory provisions.
In Langdon v. Kleeman, 278 Mo. 236, 211 S. W. 877, 878, the court said: “Waiver is essentially a matter of intention. It need not be proved by express declarations, but may be shown by the acts and conduct of the parties, or even, under some circumstances, by their nonaction. Whatever parties 'do or forbear to do, therefore, their acts or omissions, to be construed as waivers, must be so manifestly consistent with and indicative of an intention to relinquish the particular right or benefit that no other reasonable explanation of their conduct is possible.”
In this case it must be remembered that the trial court was considering a default judgment and not one entered after an appearance and contest. In such situation we think the rule stated by the U. S. Supreme Court in Harris v. Hardeman, 14 Howard 334, 14 L. Ed. 444, 446, is properly applicable. There the court said: “In reviewing the decision of the Circuit Court, it should be borne in mind, as a rule to guide and control our examination, that the judgment impugned before that court was a judgment by default, and that in all judgments by default, whatever may affect their competency or regularity, every proceeding indeed; from the writ and indorsements thereon, down to the judgment itself, inclusive, is part of the record, and is open to examination. That such cases differ essentially, in this respect, from those* in which there is an appearance and a contestatio litis, in which the parties have elected the grounds on which they choose to place the controversy, expressly or impliedly waiving all others. *949In support of the rule just stated, many authorities might b.e' adduced
Since respondent made no appearance in the trial court ánd filed no pleadings prior to the entry of the default judgment against him, we think the statutory provisions relied upón,'tó-wit, See.;507.05(> and Sec. 509.340, supra, have no application. .The motion to -set aside for irregularities attacks the default judgment on the record as written without any appearance, pleadings of waivers by respondent. • ' :
The default judgment was subject to being set aside for irregularities apparent on the face of the record and this court should affirm the judgment of the trial court vacating' that judgment.