The opinion
FLANIGAN, Presiding Judge,
concurring in result.
I concur in the result. Instead of proving, in this action, that Jess Brown was incompetent when he executed the deed of April 15, 1983, to Gary Brown and Donna Brown, the plaintiff merely stipulated with the defendants that the deed “was set aside” in the prior action to which defendants were not parties. I agree that neither the doctrine of res judicata nor the doctrine of collateral estoppel may be invoked, under the circumstances here, in favor of the plaintiff and against the defendants. This is true because, as stated in the principal opinion, a judgment against a mortgagor is not binding on the mortgagee when the proceedings were begun after the execution of the mortgage and the mortgagee was not a party thereto or an active participant therein. See 50 C.J.S. Judgments § 803, p. 348.
The principal opinion mentions “counsel’s preoccupation with McKenzie v. Donnell, 151 Mo. 431 , 52 S.W. 214 (1899) and McKenzie v. Donnell, 151 Mo. 461 , 52 S.W. 222 (1899).” This court is not presented here with the question of whether the last cited McKenzie opinion would have been of aid to plaintiff if plaintiff, in the instant proceeding, had properly proved that Jess Brown was incompetent to execute the deed of April 15,1983, instead of mistakenly relying upon the prior judgment to constitute such proof.