Downey v. . Seib

Vann, J. John Scott, Sr., probably could not write, for he signed the conveyance in question as a marksman, and perhaps he could not read. At all events, he did not understand that cumbersome and complicated instrument, which, with its parties of the first, second and third parts, its reversions, remainders and wealth of technical words, doubtless reflected the learning of the scrivener better than the instructions of the grantor. The unfortunate result is a title in the air and unmarketable perhaps for a generation. ' There would be little difficulty were it not for the action, unselfish and well intended but not well advised, of the remaindermen in conveying to the life tenant before the judgment of reformation was rendered. While they wished simply to correct the mistake of their father so far as they *432 could and to give their sister a good title, they created such, a Situation as to leave no one to be made a party to the action to reform the deed, who represented unborn children and who through his own interest would, be presumed to see that there was a fair trial and a just disposition of the case. It is well settled, as stated by Judge Earl in a recent case, that “ where an estate is vested in persons living subject only to the contingency that persons may be born who will have an interest therein, the living owners of the estate, for all purposes of any litigation in reference thereto and affecting the jurisdiction of the courts to deal with the same, represent the whole estate and stand not only for themselves, but also for the persons unborn. This is a rule of convenience and almost of necessity.” (Kent v. Church of St. Michael, 136 N. Y. 10,17.) After distinguishing Monarque v. Monarque (80 N. Y. 320) upon the ground that the court took jurisdiction of that action only by consent, and that, therefore, its adjudication bound only those who consented "and could not bind persons not in being, the learned judge continued : “ That case did not determine .that in a proper, action for the construction of a will persons not in esse could in no case be concluded by the judgment rendered therein. That they could be concluded I have no doubt, if the parties to the action properly brought were vested with the whole title, subject merely to the contingency that it might open and let in persons thereafter to be born.” So Mr. Freeman, in his valuable work on Judgments, said in section 172: “ If several remainders are limited by the same deed, this creates a privity between the person in remainder and all those who may come after him; and a verdict and judgment for or against the former may be given in evidence for or against any of the latter.” (See, also, Black on Judgments, § 554; 24 Am. & Eng. Encyc. [2d ed.] 759.) The principle upon which the rule above stated rests is that the tenant of the first estate virtually represents the subsequent estates, because he has a common interest with the other parties in defending. Mere privity in blood does not author *433 ize one party to defend the interest of another. Thus, again referring to Mr. Freeman, we find that “ Kinship, whether by affinity or consanguinity does not create privity, except where it results in the descent of an estate from one to another. Therefore, there is no privity between husband and wife, or parent and child, or other relatives, when neither of them lias succeeded to an estate or interest in property formerly held by the other.” ' “ It is essential to privity, as the term is here used, that one person should have succeeded to an estate or interest formerly held by another. He who has so succeeded is in privity with him from whom he succeeded and all the estate or interest which he has acquired is bound by the judgment recovered against his predecessor while he held such interest or interests.” (Freeman on Judgments, § 162.) “ If a person is bound by a judgment, as a privity to one of the parties, it is because he has succeeded to some right, title, or interest of that party in the subject-matter of the litigation and not because there is privity of blood, law or representation between them, although privity of the latter sort may also exist.” (Black on Judgments, § 549.) While the learned authors, who are well supported by authority, may refer particularly to. cases where the successor has taken the very title of the party against whom the judgment is recovered, we cannot see why the principle is not equally applicable to the case of the holder of one estate and the tenant of the subsequent estate. The case of McArthur v. Scott (113 U. S. 340) is instructive, if not controlling on the subject. There after-born remaindermen were allowed to enforce a trust in lands devised by their grandfather under a will, -which was adjudged void in an action brought and decided before their birth. Mr. Justice Gray, speaking for the court, recognized the general rule as to parties not in being, but he said: “ In every case there must be such parties before the court as to insure a fair trial of the issue in behalf of all.” The parents of the plaintiffs in that action were parties, but as stated .by the court, ' *434 had no interest to support the will though they had an interest to destroy it. There were charges in the complaint that the suit was fraudulent, but these were denied by the answer and the court held' that they should be considered as disproved. The decision rested on the ground that there was no real representation in the action of the subsequently accruing interests. Tliis is made plain in a later case where Mr. Justice Bbadley, in commenting upon McArthur v. Scott, said: “ There wras no party in the case t.o represent the will, or the interests created by it, or the legal estate which supported those interests. This was the special ground on which the decision in McArthur v. Scott was placed, as is fully expressed in the opinion.” (Miller v. Texas & Pac. Ry. Co., 132 U. S. 662, 671.) In the present case, by the conveyance from her brothers the plaintiff had acquired the first freehold estate, namely, the remainder in fee after her own life estate, subject to be divested by her leaving issue before her death. Therefore, she held the estate which in the ordinary course of things would make it to her interest to uphold the deed, but she was the very party who was trying to destroy it. She could not be plaintiff and defendant in the same suit. She in fact represented herself only and could not represent her after-born children or those of her brothers. The interest of her brothers was the same as her own, because they had their warranty of title to protect. We are inclined to the opinion, therefore, that the judgment recovered by her did not bar the title of persons born after the judgment was rendered who were not represented by any party to the action. At least, the question is too doubtful to warrant-the courts in compelling the purchaser to take title under such circumstances, for the pei’sons entitled to raise the question are not parties to this controversy. As, since the date of the judgment of reformation, children have been born, it may be that the plaintiff can bring a. new action, and by making them parties clear the title. In such an action those children would represent all who might be born thereafter, for they would *435 have a common interest. That remedy, however, can have no effect on this action, and our present duty is to affirm the judgment appealed from. While in this case, as we feel well assured, there was neither furtive motive nor evil result in the judgment of reformation, still, if we sustain the position of the plaintiff, our adjudication will declare the law to govern all cases of like character arising hereafter and the next to come before us may involve the robbery of children by a judgment rendered before they were born, with no one to - represent or defend them. A general rule, established by the decision of a question of law, is much more important than the effect in a particular case. The judgment should be affirmed, with disbursements, but, under the circumstances, without costs. ■ Cullen, Ch. J., O’Brien, Haight, Werner and Hiscock, JJ., concur; Willard Bartlett, J., not sitting. . Judgment affirmed.