dissenting.
I dissent. What can be more firmly established than the rule that negligence is a fact issue subject to the constitutional right of trial by jury? A jury by its verdict has found that Private Purchaser Moss was not guilty of a lack of diligence (not negligent) in failing to redeem within the statutory two year period. Most certainly, there was considerable evidence from which the jury, in its wisdom, could have found to the contrary, but that does not by any means establish “as a matter of law,” as the majority has declared, that she failed to prove herself not guilty of lack of diligence.
At the most, this court could only declare the evidence insufficient and remand for a new trial, because there was some evidence to support Private Purchaser’s claim. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). She testified that her grantor represented that there were no past due taxes and further testified that her business experience was limited. This testimony created a disputed fact issue.
Although the specific jury finding was that Private Purchaser was not guilty of a lack of diligence, the only difference between the issue submitted and a classic negligence issue is in form rather than substance — in other words, the distinction is but verbiage. Perhaps the majority feels that juries are apt to be unduly swayed by sympathy for those who lose their property at tax sales. Any such argument reduces to nothing beyond a general attack on our entire system of trial by jury. Are juries not just as apt to be unduly swayed by sympathy for persons with grievous personal injuries? Most certainly, the fact that a jury may have been sympathetic for a personal injury claimant is no grounds to declare the non-existence of negligence “as a matter of law.” 1
However, the writer is not to be construed as urging that the case should be remanded for new trial. The case should be affirmed on strength of Shaffer v. Schaleben, 236 S.W.2d 234 (Tex.Civ.App.—Waco 1951, writ ref’d n.r.e.). That court affirmed a judgment granting relief from a tax foreclosure declaring “we have carefully reviewed all of the evidence tendered and our view is that it is sufficient to sustain the trial court’s implied finding that ... [the private purchasers] were not guilty of laches in bringing a direct attack on the original judgment.” 236 S.W.2d at 238. As before, it is suggested that the distinction between lack of diligence and laches is gossamer.
If anything, Shaffer presented a stronger case for those tax purchasers than the case presented by Tax Purchaser Fender.2 *414That private purchaser was an attorney, presumably familiar with tax foreclosure law and its two year redemption period. As here, there was no dispute of the fact that the taxes were actually due and owing. In Shaffer, suit had already been commenced when the private purchaser acquired an interest in the property, and the private purchaser admitted foreknowledge of the pendency of the tax suit. He also was aware of an amendment naming him as a party, although the trial court found that no citation was ever served on him. Presently, Private Purchaser’s lack of knowledge of any proceedings until shortly before she brought this suit is undisputed. In Shaffer, the tax suit went to judgment on October 12, 1942. The private purchaser alleged that he had entered war service during September 1942, was out of the country when judgment was entered, and was not aware of the entry of judgment until June 1944. From our majority opinion, it could strongly be argued that, having knowledge of the pendency of the suit, he should have anticipated judgment and ensuing sale “as a matter of law,” but the Shaffer court held otherwise. Further, the Shaffer property was not sold by the sheriff until April 4, 1943, meaning that the private purchaser actually knew of the judgment well within the two year redemption period. In the face of all these facts, the Shaffer private purchaser was acquitted of negligence by the trial court although he waited until July 1946 to institute proceedings to set aside the tax sale. His judgment on appeal was affirmed and a like remedy should be applied here.
I dissent from the reversal and rendition of this case. It should be affirmed.
. In addition, the purchaser at judicial sales is in a superior position to the defendant in a personal injury action because it has been consistently held from earliest times that no judicial sale may be attacked without a complete tender back to the judicial sale purchaser of that which he has bid and paid, DeGuerra v. DeGonzalez, 232 S.W. 896, 901 (Tex.Civ.App.—San Antonio 1921, no writ); Dunlap v. Wright, 11 Tex. 597 (1854).
While judicial sale bidders fulfill an essential function, it is nevertheless well established that property rarely brings full value at judicial sales. The principal inducement for buyers to undergo the uncertainties of judicial sales is the opportunity to buy at sacrifice prices. Considering that the judicial purchaser has little to lose but his bargain, any concern for his plight is misplaced.
. The basis for attacks on the judgments in Shaffer and in the case at bar are similar. Private Purchaser Moss here contends that her grantor was not properly served with citation whereas the private purchasers in Shaffer contended that while they were impleaded in the tax suit, they were never served at all. In both cases, the judgments recite proper service. Our majority opinion holds that the recital is conclusive because this action has become a collateral attack rather than a direct attack in that Private Purchase has not, in the majority’s view, shown the requisite diligence. Contrariwise, this court should hold that the case in hand is a direct attack and that the defect in service can be shown because the jury, on adequate evidence has found the requisite diligence.
Shaffer precedes McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1963) (save in extraordinary situations, bill of review is the exclusive means to attack the validity of final judgments) and its progeny. For such reason, the approach by the Shaffer court may differ from later cases, but the methodology is parallel. The Shaffer court recognized that laches would bar relief, whereas McEwen requires a showing of diligence. Finding that the private purchaser was