Brown v. Bibb

*153 CLARK, J. An opinion was adopted in this case in Division Two. After transfer to and reargument in banc, the divisional opinion was rejected and the case reassigned. The writer, after further study of the record and briefs and independent research, believes the divisional opinion reached the right result in affirming the judgment of the trial court. Plaintiffs and one defendant appeal from an adverse judgment in a suit to determine title, ejectment and partition. The facts are agreed. Appellants Brown and Smith are grandchildren, and appellant Norvell is a great grandchild, of Joseph H. and Maria Roberts. On January 5, 1874, Joseph, then the owner of the land, with his wife joining, executed a deed of trust to secure a note signed by him only. On December 3, 1874, Joseph, without his wife, Maria, joining, executed a quitclaim deed to his mother, Elizabeth Roberts. On the same day Elizabeth executed a quitclaim deed to Maria “and her bodily heirs by Jo. H. Roberts and assigns, forever.” Both deeds were subject to the deed of trust. In 1887 Elizabeth Roberts died and Joseph was appointed her administrator. He illegally appropriated money belonging to her estate and used a part of same to pay his note which was secured by the deed of trust above mentioned, and had the same satisfied of record on November 30, 1887. In 1888 Joseph died and his successor as administrator of Elizabeth’s estate sued and recovered the amount of Joseph’s defalcation from the surety on his bond, Walker Davis. Davis then sued Maria Roberts and her two children, Maggie and Carrie, who were the only living remaindermen under the quitclaim deed from Elizabeth to Maria. The defendants were personally served and guardians ad litem were appointed for the two children, who were then minors. Davis procured a decree for the recovery of the money *154 he had been compelled to pay, subrogating him to the rights of the holder of the note and deed of trust and ordering the land sold to satisfy the decree. The land was sold under a special execution and Maria Roberts became the purchaser. In 1937 Maria sold part of the land-to respondents, Bibb and wife, for $1,000.00 and they have made improvements to the value of $1,990.00. In the same year she sold the remaining portion to her grandson, Russell Temple and his wife, and they have made improvements to the value of $310.00. • Maria Roberts died December 3, 1943, her daughters, Carrie and Maggie, having predeceased her in 1934 and 1935, respectively. Maria left no living children. Tier daughter Carrie’s only children are Tom J. Brown and Ellen Smith, plaintiff-appellants. Maggie’s heirs are defendants, Russell Temple, Agnes Louney and Bobby Norvell. Agnes Louney has deeded any interest she may have to the Bibbs and Temples defendants; Bobby Norvell disappeared in 1935 when about four years old and has not been heard of since. He is represented in this suit by a guardian ad litem. The effect of the deed executed by Elizabeth Roberts was to grant a life estate to Maria with contingent remainder to her bodily heirs by her husband, Joseph, living at her death. Appellants constitute such bodily heirs. [Sections 3499, 3500, Revised Statutes Missouri 1939, (Mo. R. S. A.) (All references to statutes herein, unless otherwise designated, are to the revision of 1939 and corresponding sections of Mo. R. S. A.) Davidson v. Todd, 350 Mo. 639, 167 S. W. (2d) 641.] Appellants claim that the purchase by the life tenant, Maria, is presumed to have been for, the protection of the interests of the remaindermen as well as her own, citing Allen v. DeGroodt, 105 Mo. 442, 16 S. W. 494; Herndon v. Yates (Mo.), 194 S. W. 46, and Souders v. Kitchens, 345 Mo. 977, 137 S. W. (2d) 501. The law on this point is well stated in the Souders case, which reviews the other two cases cited by appellants, and does not accord with appellants’ contention, under the facts of the instant case. The claim for which the land was sold was not the debt of Maria Roberts or of the re,maindermen, but, if valid as a lien upon the land, it was superior to the estates of both the life tenant and the contingent remaindermen. As held in the Souders ease, overruling the Herndon case, Maria Roberts, by her purchase, is not presumed to have intended to make an advancement to her children or descendants. She bought at a judicial sale under a decree which she did not procure and which purported to sell the entire title, and she had the same right to buy as a stranger would have had. True, in some circumstances when a life tenant or a tenant in common buys an outstanding title the remaindermen or other tenants can preserve their interests by contributing within a reasonable time their fair share of the purchase price. Appellants, by their pleadings in the instant case, do not raise that *155 issue. They do not claim that the purchase by Maria afforded them any benefit, nor do they offer to make allowance for the amount she paid, or for the enhanced value due to improvements made by her grantees. Their theory is that the 1890 sale was entirely void as to them. If their theory is incorrect, then Maria Roberts took the entire title for herself and not in trust for herself and the remainder-men. [Dudgeon v. Hackley (Mo.), 182 S. W. 1004; Bragg v. Ross, 349 Mo. 511, 162 S. W. (2d) 263; Owen v. Long, 340 Mo. 539, 104 S. W. (2d) 365; Starkweather v. Jenner, 216 U. S. 524, 30 S. Ct. 382, 54 L. Ed. 602.] Appellants contend that the 1890 judgment was merely a money judgment and did not subrogate Davis to the rights of the person who held the note and deed of trust at the time it was satisfied of record. Their main argument on this point, aside from their claim that the contingent remaindermen were not parties to the suit, seems to be that the judgment did not expressly cancel the record of the satisfaction of the deed of trust. Walker Davis’ petition in the 1890 suit, in substance and among other things, alleged: the illegal use by Joseph Roberts of funds in his hands as administrator' to pay the note and release the deed of trust; the recovery from Davis, as surety on Joseph’s administration bond, of the amount of Joseph’s defalcation; the conveyance of the land by Joseph to his mother in her lifetime and her conveyance to Maria, Joseph’s wife, and her bodily heirs by Joseph, and that this conveyance was subsequent to the exer eution and recording of the deed of trust; that Joseph had died and that Maggie and Carrie were the children of Joseph and Maria and the “only heirs” of Maria. The petition prayed that Davis have judgment for the amount he had been compelled to pay; that the same be declared a lien on the land; that he be subrogated to the rights of the holder of the note before the deed of trust was wrongfully released, and that the land be sold to satisfy the lien. The decree followed the petition, finding all the facts for the plaintiff, Davis, established the lien of the deed of trust and subrogated Davis to the rights of the holder thereof, and ordered the land sold as prayed. Maria and her bodily heirs were not personally liable on the note or for the amount of Joseph’s defalcation and a general money judgment against them would not have been proper, but we do not construe the decree to render such a judgment. It finds that Davis was compelled to pay for Joseph something more than $500.00, then goes on to say that Davis “have and recover” from defendants the sum of $290.00, the amount of the note secured by the deed of trust, and ordered the land sold to satisfy a lien for the latter amount with interest. The return of the sheriff and the sheriff’s deed were in accordance with the decree. We do not agree with appellants that it was incumbent on Davis to pursue some other remedy which he may have had, nor that *156 it was necessary for the decree in express terms to cancel the record of the release of the deed of trust. We hold that the allegations of Davis’ petition and the wording of the decree were sufficient to establish his right to subrogation. [Sections 3324, 3325, 3339; Wernecke v. Kenyon, 66 Mo. 275; 60 C. J., pages 833-5, section 136; 50 Am. Jur., page 774, section 145.] The decisive question here is: Are the. appellants, who were then unborn, bound by the proceedings in 1890 which culminated in the sale to Maria Roberts? The petition and decree in that suit did not expressly refer to unborn persons who might at the death of Maria Roberts qualify as her bodily heirs. If such persons, appellants herein, are bound by that suit it must be because it can be held that they were represented by one or more of the living defendants then in court. The doctrine of representation or virtual representation is well recognized in equity. It does not depend upon a statute] although its application is similar, but not entirely the same, as the operation of our statutory class action. [Session Acts of 1943, page 362, section 19.] Without attempting to give a comprehensive definition of the doctrine, applicable to all cases, we state its application to the instant case as follows: the unborn contingent remaindermen are bound by the decree in the 1890 suit, although they could not be brought into court, if the pleadings and decree were sufficient to reach their interests, and their interests were so represented by others who were before the court as to receive actual, fair and efficient protection. [2 Restatement: Property, sections 182, 193; 30 C. J. S., pages 577-8-9, section 145; 34 C. J., page 1000, section 1421; 39 Am. Jur., page 925, section 51.] In the 1890 suit the defendants were the life tenant, Maria Roberts, and her only living children, Carrie and Maggie, inaptly termed her “only heirs.” Of course, Maria while living had no heirs and it was apparent from the petition, as subsequent events proved, that her then living children might never be her heirs and that other persons might qualify as her bodily heirs at her death. Surely the plaintiff, Davis, did not have to wait until the ultimate takers of the property could be determined, for that would be to deny him all remedy. It must be conceded that there was some method whereby he could presently enforce his remedy. In a statutory class suit where there are or may be living persons, known or unknown, not made parties, it is necessary to state that fact and further allege and prove the reason for their omission and that their interests are properly represented by parties to the suit. But in the 1890 suit it would have added nothing to expressly allege that there was a possibility that unborn persons might succeed to the title. That was apparent from the petition. Nor would it have added anything to expressly allege that the interests of possible unborn persons were *157 represented by the living defendants. That was a question of fact and law also arising on the petition. The authorities heretofore cited and others to be discussed later announce that the doctrine of virtual representation may be invoked to bind the interests of persons not in being, provided all the interests owned by persons in being are before the court, .and some one or more of them would be adversely affected by .the decree equally with the. class not in being, and would therefor have the same interest and. would be equally certain to present to the court the merits -of the question upon which the decree is sought. In the 1890 suit the only person owning a vested estate, the life tenant, and the only living persons with an expectancy of sharing in the fee were in court. The same deed which granted to Maria Roberts a life estate also granted the fee to her bodily heirs. She could not defend her right to a life estate without defending the interests of the contingent remaindermen. She was represented by able attorneys and there is nothing to indicate that she did not in good faith defend the interests of herself and the contingent remaindermen, even though she bought the land at the sale. There is nothing to indicate that she was guilty of fraud or collusion in procuring the sale. [Edwards v. Harrison, (Mo.) 236 S. W. 328.] Also, the interests of Maggie and Carrie Roberts were identical with'that of any unborn children or descendants of Maria who might thereafter qualify as her bodily heirs. Maggie and Carrie '■were minors, but they were represented by a guardian ad litem who was an attorney, and, being minors, their interests were under the especial protection of the court. They had no vested interest, but they had a possibility and, so far as human wisdom could then foresee, a probability of obtaining an interest in the fee at their mother’s death. They had the same incentive to defend their expectancy as they would have had to defend a vested interest, and they could not defend it without also defending the interests of any unborn children or descendants of their mother. "We are aware that it is stated in 30 C. J. S., page 584, section 145: “Contingent remaindermen without any vested interest cannot represent subsequent remaindermen or tenants in tail,” citing Cannon v. Barry, 59 Miss. 289, and 21 C. J., page 296, which cites Williams v. Hassell, 74 N. C. 434. Cannon v. Barry does contain a statement substantially like that quoted above, but the actual holding is not in point as to representation of unborn persons. That case holds that contingent remaindermen could not recover damages from the life tenant for past waste, [they might never have a vested interest and thus never be damaged] but could enjoin future waste, provided they brought in the trustee holding the legal title and other living contingent remaindermen. , *158 Williams v. Hassell, 74 N. C. 434, and Miller, ex parte, 90 N. C. 625, merely hold that contingent remaindermen cannot compel partition. That ruling accords’ with certain cases, hereafter mentioned, decided by us, the reason being that contingent remaindermen may never have an estate and so have no right to partition. Whatever may be the law in other jurisdictions, this court has definitely taken the position that living contingent remaindermen,, having no vested estate, may represent and bind the interests of unborn contingent remaindermen. Jackson v. Miller, 288 Mo. 232, 232 S. W. 104, so holds on facts quite like those in the instant case. There a woman had been induced to convey her land to her brother-in-law who reconveyed it to her and her bodily heirs. Later she sued to set the deed aside and have herself decreed the owner in fee. The defendants were her brother-in-law and her minor children who were represented by a guardian ad litem. The trial court set the deed aside and the guardian ad litem appealed, contending, in substance, that the decree was invalid because, some or all of the children might predecease the life tenant and other children might be born to her. We held that any unborn children were represented by those in being and the decree was binding on their contingent interests. The only difference between that case and the instant case is that the petition in Jackson v. Miller stated that the living children were made parties in their own right and as representing the whole class of bodily heirs. That is a material allegation in an ordinary class suit where it is claimed that a part of a class of living persons represent the whole class, known or unknown, but we fail to see why such an allegation was necesasary in the case brought by Davis in 1890. The petition there showed the possibility that unborn persons might become bodily heirs of the life tenant. The question of whether such unborn persons were in law and fact represented by living parties to the suit was raised by the pleadings without an express declaration that they were so represented, although a careful pleader might make such an allegation. In White v. Campbell, 316 Mo. 949, 292 S. W. 51, we approved Jackson v. Miller, the facts in the two cases being alike. We reached the same conclusion in Edwards v. Harrison, (Mo.) 236 S. W. 328; Sparks v. Clay, 185 Mo. 393, 84 S. W. 40; Acord v. Beaty, 244 Mo. 126, 148 S. W. 901; Reinders v. Koppelmann, 68 Mo. 482, and other cases. In Edwards v. Harrison many cases from other states are cited. Reinders v. Koppelmann, Sparks v. Clay, and Acord v. Beaty have been criticized and partially overruled, but not as to the doctrine of virtual representation, by the following cases: Gray v. Clements, 286 Mo. 100, 227 S. W. 111; Gray v. Clement, 296 Mo. 497, 246 S. W. 940; holding that a life tenant cannot compel partition in a suit against remaindermen; Gibson v. Gibson, 280 Mo. 519, 219 S. W. 561, holding partition cannot bo had contrary to the provisions of *159 a will; Stockwell v. Stockwell, 262 Mo. 671, 172 S. W. 23, partition denied in a suit by a mother and one of her children against her other child, the title being held by the mother for life with remainder to her bodily heirs; [of course, the land could not be divided among such interests and a sale could not be ordered without a showing of necessity as provided in a statute mentioned later;] Hill v. Hill, 261 Mo. 55, 168 S. W. 1165, same holding as in Gibson v. Gibson. Reinders v. Koppelmann and similar eases were cited in the briefs, but not mentioned in the opinion of Heady v. Crouse, 203 Mo. 100, 100 S. W. 1052. There the title to land was held by Mrs. Heady for life with remainder in fee to her bodily heirs. She brought suit against her living children and procured a decree for the sale of the land and reinvestment of the proceeds. We held the decree void because no necessity was shown for the sale, either in equity generally or under a statute-then in force. In the course of the opinion we said that two of the children “never became her heirs because they died before she did and their children who did become heirs of her body were not born until after the decree was rendered. These latter were not bound by the decree, even if the others had been, because they derived their title, not by inheritance from their mother in whom no title ever vested, but directly from the will as being heirs of the body of their grandmother..” We think the quoted statement is somewhat misleading. True, the unborn grandchildren of the plaintiff were not bound by the decree and neither were the living children who were parties to the suit; all because the court was without jurisdiction to render the decree on the allegations of the petition. If the quoted language was intended to mean that the interests of unborn contingent remaindermen cannot be bound by representation by living persons, the statement does not accord with our decisions prior and subsequent to Heady v. Crouse. In McConnell v. Deal, 296 Mo. 275, 246 S. W. 594, the plaintiff, who held title to land for life with remainder to her bodily heirs, sued her children, as living bodily heirs and as representing such bodily heirs as might be subsequently born, and procured a decree for the sale of the land and the appointment of a trustee to manage the fund. Held, that the decree was void because the petition did not show necessity for the sale; also that unborn remaindermen were not represented. The opinion was by Judge Higbee. Judges Walker, Woodson, and D. E. Blair concurred. Judge J. T. Blair concurred in the result, and Judges Elder and Graves dissented, the latter in a separate opinion. What was said in Heady v. Crouse and in McConnell v. Deal, concerning the doctrine of representation, was obiter and not in accord with the later case of White v. Campbell. The latter was a division case, written by Judge White and concurred in by Judges Walker and D. E. Blair, two of the judges who concurred in the majority opinion in McConnell v. Deal. *160 In Boone v. Oetting, 342 Mo. 269, 114 S. W. (2d) 981, the title to land was held by Mrs. Bozarth for life with remainder to her bodily heirs. She and some of her children brought suit in partition against her other children. Judgment was rendered and the land sold. We held the judgment void and so it was because the plaintiffs had no right of action. The plaintiff, Mrs. Bozarth, sole owner of the life estate, had'no interest subject to partition and no right to compel partition among successive owners; and contingent remaindermen are not entitled to partition because they may never have a vested interest. [Dodd v. McGee, 354 Mo. 644, 190 S. W. (2d) 231.] We have a statute, .section 1710, which permits the owner of a vested life estate, under proper allegations, to compel a sale and conveyance of the fee, including the interest of the contingent remaindermen, and the preservation of the fund for all persons interested. Under that statute the interests of unborn persons would necessarily have- to be represented by living parties. From what we have said it follows that the decree of the trial court, vesting title in respondents, must be and is hereby affirmed. Conlding, Douglas and Leedy, JJ., and Tipton, C. J., concur; Ellison, J., dissents in separate opinion; Hyde, J., dissents in separate opinion.