I respectfully dissent from the reasoning and result of the principal opinion. The plaintiffs-appellants in this quiet title, ejectment and partition suit challenge the validity of a subrogation decree in the chain of title to the 120 acres of land in Pike county here involved, rendered 57 years ago. The question is whether their interests in the land were duly protected in those proceedings under the equitable doctrine of virtual representation.
It is unnecessary to restate all the facts. All that need be remembered is that the common source of title is R. who through a conduit of title. E, quitclaimed the land to his wife, M. remainder to "her bodily heirs by (R) and assigns forever." R died survived by his widow, M, who was life tenant under the deed, and their two minor daughters, who were M's heirs apparent and consequently contingent remaindermen of the fourth class under R's deed, the contingency being whether they survived their mother, M. and became her heirs.
In that legal situation R's bondsman, D, having a claim of $290, brought the subrogation suit in 1890, to be subrogated to the rights of the holder of R's sole note and a deed of trust on the land, which R and M had given to secure the note before he executed the quitclaim deed. The petition joined as defendants R's widow, M. life tenant under the quitclaim deed, and her two minor daughters. It alleged the two daughters were her "only bodily heirs." A guardian ad litem was appointed for the two daughters, who filed answer describing himself as their representative. *Page 161
The court's decree for D followed the petition and found that the two daughters were "the only heirs" of M;1 rendered judgment against the three defendants for the debt; decreed subrogation; and ordered the issuance of a special execution. The land was sold thereunder to M, the life tenant, for $415.55, or $3.46 per acre, and distribution of proceeds was ordered. The sheriff's deed followed the decree and recited the interests sold were "all right, title, interest and estate" of M and the twodaughters, naming them. The mother, M, lived until December, 1943. Her two daughters predeceased her leaving five children, two of whom are plaintiffs and three defendants in the instant suit. Consequently they became M's bodily heirs. But they were only contingent remaindermen until their grandmother M died, when their interests vested.
The trial court in connection with its judgment in the instant case filed a written opinion which stated: "It is the opinion of this court that the uncertainty of the persons that would take in remainder by reason of said deed from (E) to (M) vanished at the death of (R) in 1888, and it could then be told who would be the bodily heirs of (M) by (R), to-wit: [the two daughters of M by R]; therefore the judgment and decree of the Circuit Court of Pike County in 1888 against [M and her two daughters] was binding upon the children of [the two daughters] and plaintiff's interests were properly represented by the holder of the first estate of inheritance to the real estate, to-wit: [the two daughters of M]."
The rule followed by the learned trial judge — that the representative of the interests of the unborn must, himself, have an estate of inheritance — has been said to be the general rule.2 But his opinion erred [378] in holding M's two daughters had an estate of inheritance in the land. They had only contingent remainders of the fourth class [dependent on whether they survived M], and such a remainder is not an estate of inheritance.3 It has been said that strictly speaking a contingent remainder is not an estate at all but merely a chance of having one.4 It is an interest in land,5 and is alienable, at least by force of our statute.6 But the fee or reversionary interest in the land remains in the grantor, his heirs, assigns or devisees pending a *Page 162 determination under the original grant of its vesting or failing for want of takers as "bodily heirs."7
If the unborn heirs of M were virtually represented in D's subrogation case, it must have been by M, the life tenant, or her two minor daughters through their guardian ad litem. But the case was expressly brought, tried and decided on the theory that there were no such outstanding interests to be represented. The guardian ad litem of the two daughters owed his first duty to them, and could not represent the unborn heirs, for D's suit conceded the two daughters had the whole remainder. The sheriff's deed did not even purport to convey more than the interests of the living defendants. No party defendant in the subrogation suit had an estate of inheritance. The mother, M, had only a life estate; her two daughters had only contingent remainders; and the reversionary interest [in case M died without bodily heirs] was not brought in at all. This necessitates a broader examination of the doctrine of virtual representation.
[6] The doctrine requires the legal position of the actual parties to the suit, or at least some one of them, to be so nearly like that of the unborn persons, that self-interest will prompt the former adequately to represent the latter in representing himself.8 The rule is born of convenience or necessity, as where the parties are too numerous to be brought in except as a class; or where it is necessary to prevent stagnation of titles and other interests when some of the interested parties cannot be reached. And yet nothing is more repugnant to our jurisprudence than the taking of a man's property without a hearing in court. Hence it is required that he be "virtually" represented by some other interest so like his own that he will be protected, as near as may be.
Sometimes the unknown or unborn interests may be represented by a trustee, executor, administrator, guardian ad litem or an attorney appointed by the court. But when the representation depends only on affinity of interests, the degree of similarity of the respective interests becomes very important. If the interests are not so nearly identical as to assure adequate representation of unknown, unborn or incompetent parties, then they are denied due process. Hansberry v. Lee, supra (marginal note 8). For instance, if the subrogation case 57 years ago had been a partition suit and the interests of the life tenant M and her bodily heirs had been in an undivided share of the land. *Page 163 which was set off to them in kind, there would have been (ordinarily) complete harmony of interest.
But here, the plaintiff D in the subrogation case was seeking to and indirectly did foreclose a deed of trust on the land, selling out all underlying interests. If the land sold too cheap it was to the interests [379] of the life tenant M to bid it in, which she did, for $3.46 per acre. True, as the principal opinion holds, she had the right to do that under Souders v. Kitchen, 345 Mo. 977, 137 S.W.2d 501. But that means she had the right to act in a manner hostile to the interests of her heirs. Bragg v. Ross, 349 Mo. 511, 518, 162 S.W.2d 263, 266(2). Neither am I saying that there was any fraud: the evidence does not show what the land was worth. I am speaking only of harmony of interest.
And on the other hand, whatever the land sold for, the way the subrogation suit was brought and decided [that there were no other bodily heirs] the life tenant M and her two minor daughters would get all the surplus to the exclusion of the unborn heirs, who were rightfully entitled to it as matters eventuated. The land did sell for $415.55, whereas D's claim was only $290. What became of the surplus, if any, the record does not show. The effect of the difference between a partition in kind and one by sale is pointed out in two Federal decisions cited below.9 In my opinion there was not in this case such similarity between the interests of the living defendants and the unborn heirs, as to make the former fair representatives of the latter.
[7] Furthermore, it has been said that the interests of the unknown or unborn parties, if any, must be considered andprotected in the judgment.10 This does not necessarily mean the living parties must be designated as representatives of the unborn heirs, but the interests of the latter must berecognized. As said in the McClelland case just cited below: "In order for a judgment or decree in a suit to be binding upon others than those who are brought before the court, it should be made to appear from the record in the case that such a result iscontemplated; that there are persons not before the court having an interest in common with those who sue or defend, and why such others are not brought in; . . ."
That requirement was wholly ignored in the instant case. The principal opinion holds the trial court was sufficiently advised because the plaintiff's petition alleged that R's quitclaim deed conveyed the land to M "and her bodily heirs by (R) forever." I disagree on that point and think it is the principal issue in the case. It is not the law that a mere descriptive allegation in the petition will cure a jurisdictional *Page 164 defect in the judgment. The petition also alleged there were no heirs except the two living daughters, and the court's decree sofound — holding, in other words, that there were no other interests to be represented and protected.
While the authorities cited in marginal note 10, supra, holding the interests of unborn parties must receive actual consideration, are from other jurisdictions, their doctrine was expressly followed in the Acord case, infra (marginal note 12), which the principal opinion cites. And our statutory and judicial policy always has been to recognize and protect unknown interests. Ever since statehood we have had a statute like the present Sec. 897 down to the first proviso, applicable to civil actions in general, which requires the plaintiff's petition to allege unknown persons, if any, are interested in the litigation, and to describe their interests so far as known. This obviously would cover unknown heirs and "heirs of heirs."11 A notice by publication to the unknown persons also is required.
Since 1909 the statute has further provided that if the action affects the interests of such unknown persons in the title to any property acquired by deed, will, inheritance, etc., and the unknown parties do not appear, the court must appoint anattorney to represent them. And while it may be an idle ceremony to publish a notice to unborn persons; and conceding tentatively that their interests may be protected under the doctrine of virtual representation by qualified persons appearing; still the statute shows their interest must be recognized and brought to the attention of the court.
Sec. 1687, authorizing suits to perfect the [380] title to the land, expressly includes unknown heirs, and by reference requires a procedure like that under Sec. 897. Likewise, Sec. 1715 in the Article on partition, provides that if any of the parties or their shares or interests in the land be unknown to the plaintiff, or if their interests be unknown, uncertain or contingent, the same shall be stated in the petition. Sec. 1710 in the same Article, and mentioned in the principal opinion here, permits the holder of a particular estate of present enjoyment in land to sue in equity to have the land sold, whenever such particular interest is rendered burdensome and unprofitable by uncertain or contingent future interests. And while Sec. 1711, next following, provides the doctrine of virtual representation shall apply to unborn persons in such cases, yet it further provides that when such future interests may vest in an unborn person not representable by living persons in the same class or related interest, a disinterested attorney shall be appointed torepresent the unborn person. All the foregoing, under the several statutes mentioned, shows the interests of the unborn persons must be pleaded and considered. *Page 165
That was done in all of the decisions cited in the principal opinion and below.12 The Beinders case was a partition suit. The petition alleged the life tenant had "ostensible" (presumptive) heirs, and the appeal was from an overruled demurrer to the petition, which challenged the plaintiff's right to maintain partition until the contingent remainders had vested. The rights of the unknown heirs were squarely raised. TheSikemeier suit was the same. In fact the petition there prayed that the rights of the contingent remaindermen be ascertainedand determined. The Sparks case was an ejectment suit turning on the validity of a prior partition suit brought by a single woman who was life tenant of an undivided fourth interest in land, remainder to her heirs. The court ordered her share set off to her and her heirs. But it was found the land could not be divided in kind, and it was then ordered sold, her share of the proceeds being allotted to her "and her heirs." In the meantime the plaintiff had married and had a child, for whom a guardian ad litem was appointed. It will be seen the interests of the unborn heirs were sedulously protected throughout the litigation.
The Acord case, already mentioned, was an ejectment suit challenging a prior voluntary partition in kind by deeds, of land held jointly by five life tenants, remainders severally to their respective heirs. After the death of one of these life tenants his sole heir and vested remainderman brought the ejectment suit. The opinion held she was virtually represented by her parent in the partition in kind, but quoted from Freeman on Cotenancy Partition (2 Ed.) Sec. 482, cited supra in marginal note 10, as follows:
"But in order to bind the interests of persons not in esse the proceeding must be adapted to that purpose. If no mention ismade of such interests, and the pleadings and judgment arefounded upon the theory that the persons in being before thecourt are the only persons having any estates or interests in theproperty, then no interests are affected except those vested in the parties before the court. Whenever it is sought to bind the interests of persons not then in being, the judgment must be onewhich `provides for and protects such interests by substituting the fund derived from the sale of this land in place of the land, and preserving it to the extent necessary to satisfy such interests as they arise.'"
The opinion in this Acord case went on to point out that in the mutual partition deed there involved, the rights of the parties not in esse were recited. Note the difference between that case and this — *Page 166 where both the petition and judgment in the subrogation case affirmatively declared there were no other heirs.
[381] The Edwards case, which the instant principal opinion stresses, was an action for the specific performance of a contract for the sale of land, which turned on the validity of a prior action to determine title. The title involved the construction of a will, which had devised land to a trustee for the use and benefit of the testator's daughter for life, and at her death the land was to be conveyed by the trustee to the bodily heirs of the daughter, or in default of such then to the testator's other heirs. The daughter brought the title action joining as defendants, all the testator's children (but not their children) together with her own two children and the testamentary trustee. She obtained a decree vesting a fee simple title in her. It was contended in the later specific performance suit that the decree in the prior title suit was not binding on the unborn contingent remaindermen (either her descendants or her father's). But this court's decision pointed out that all such interests were represented by the testamentary trustee, who was a party to the suit and charged by the will with the duty of making the conveyance of the remainder interests to the parties eventually entitled thereto.
In the White and Jackson cases, chiefly relied on by the principal opinion, the suit was to set aside a deed in toto. The interests of all the contingent remaindermen were in fact identical: if the plaintiff won both the living and unborn must lose. But more important, in both cases the living contingent remaindermen were expressly sued as a class with the unborn, thereby putting the interests of the latter directly in the litigation.
On the other hand, in the subrogation case here involved the plaintiff D brought his suit on the theory that the mother, M, and her then living two minor daughters were the only persons interested in the land — evidently on the assumption that they would outlive her. His petition alleged they were her only heirs; that was the theory of trial; the decree so found; and the sheriff's deed pursuant thereto did not attempt to convey more than the interests of those three defendants. To say the word "heirs" meant "children" would only worsen matters, for it would imply the interests of M's after-born sole heirs were consciously ignored. We are not concerned here with some instrument crudely drawn by a layman, but with formal court proceedings which involved the legalistic phrase M's "bodily heirs (by R) and assigns forever," used in R's deed. This put everyone on notice as to the technical intent. Nevertheless, the instant principal opinion holds the after-born sole heirs were bound by the proceeding. But in the foregoing circumstances how can it be said they were represented? If they were accorded due process I am unable to see it.
[8] Other decisions in harmony herewith are cited and discussed in the instant dissenting opinion of Hyde, J. and the opinion of Bohling, *Page 167 C., quoted therein, particularly the Heady and McConnell cases cited below.13 The facts in both resembled those here nearly enough to make their rulings apposite. They held, in substance, that where the ultimate contingent remaindermen in whom title vests, take by purchase in their own right (as in this case), and not by inheritance from a party to the suit — in other words, where there is no privity of title — the doctrine of virtual representation ought not to apply, except in case of necessity. Both decisions further held, in effect, that in any such instance where the rights of the unborn may be affected prejudicially, the court should look into the merits and protect their rights; and both did do that.
The only discussion in this State, so far as can be found, bearing on the necessity of impleading defendants both personally and as representatives of unknown or unborn interests under the doctrine of virtual representations, is in a Note in 2 Mo. Bar Journal, p. 11, written in 1931. It criticized the Heady and McConnell cases, last cited, and commended the White and Jackson cases. But it called attention to the fact that in both those cases the living contingent remaindermen were made defendants in their own right and as representatives of the unborn; and said the same was [382] "probably" true in the Reinders and Sparks cases. However, it pointed out that in the Edwards case some of the living contingent remaindermen were not joined as defendants, but that the court nevertheless held the omission was not fatal because these contingent remaindermen were represented by the testamentary trustee. The conclusion of the annotator was that "prudent counsel will join all persons in being or who may possibly succeed to the contingent interests . . ."
It is not unfamiliar doctrine that a testamentary trustee represents the unborn who may have a future contingent interest in his trust. Garrison v. Garrison, 354 Mo. 62, 66-7 (1),188 S.W.2d 644, 645(1). And the writer has no disposition to unsettle titles based on judgments or decrees arrived at under the doctrine of virtual representation. But to say that the doctrine applies in a case where the plaintiff alleged there were no interests to be thus represented, and the court so found, seems to me to be going too far.
1 Italics and parentheses in quotations are mine. References to our statutes are to R.S. 1939, and Mo. R.S.A. unless otherwise indicated.
2 21 C.J., p. 295, sec. 294; 30 C.J.S., p. 583, sec. 145(3).
3 21 C.J., p. 917, sec. 7; 31 C.J.S., p. 17, sec. 7; Casteel v. Potter, 176 Mo. 76, 85(2), 75 S.W. 597, 598; Brown v. Fid. Un. Trust Co., 216 N.J. Eq. 406, 436(11), 9 A.2d 311, 327(16); Bunting v. Speek, 41 Kan. 424, 430, 21 P. 288, 290, 3 L.R.A. 690, 693; Smith v. West, 103 Ill. 332, 337(2).
4 21 C.J., p. 984, sec. 137; 31 C.J.S., p. 91, sec. 72.
5 McFarland v. Bishop, 282 Mo. 534, 552(6), 222 S.W. 143.
6 Grimes v. Rush, 355 Mo. 573, 197 S.W.2d 310, 311(3).
7 23 Am. Jur., p. 532, sec. 72; Mattingly v. Washburn,355 Mo. 471, 196 S.W.2d 624, 626(1).
8 Restatement, 2 Property, sec. 182, Comment, p. 730; 30 Am. Jur., p. 962, sec. 228; 33 Am. Jur., p. 646, sec. 180; 39 Am. Jur., p. 919, sec. 45, p. 921, sec. 47; Hansberry v. Lee,311 U.S. 32, 85 L. Ed. 22, 61 S. Ct. 115, 132 A.L.R. 741; Annotation, p. 750(II); Gunnell v. Palmer, 370 Ill. 206, 18 N.E.2d 202, 120 A.L.R. 871, Annotation, p. 876; 2 Black on Judgments, sec. 554, p. 840; Freeman on Judgments (5 Ed.), sec. 436, p. 953; 3 Simes, Law of Future Interests, sec. 675, pp. 95-6.
9 McArthur v. Scott, 113 U.S. 340, 401-2, 28 L. Ed. 1015, 1034-5, 5 S. Ct. 652, 673; Pugh v. Frierson, 221 F. 513, 524(5).
10 30 Am. Jur., p. 963, sec. 228; Freeman on Cotenancy Partition (2 Ed.), sec. 482, p. 641; McClelland v. Rose, 247 F. 721, 724(2).
11 43 Words Phrases (Perm. Ed.), pp. 274-5.
12 Reinders v. Koppelmann, 68 Mo. 482, 483, 501, 30 Am. Rep. 802; Sikemeier v. Galvin, 124 Mo. 367, 370-1, 27 S.W. 551; Sparks v. Clay, 185 Mo. 393, 400, 406-8, 84 S.W. 40, 41, 43-4; Acord v. Beaty, 244 Mo. 126, 130-136, 148 S.W. 901, 904; Edwards v. Harrison (Mo. Div. 1), 236 S.W. 328, 331(2); White v. Campbell,316 Mo. 949, 950-1, 292 S.W. 51; Jackson v. Miller, 288 Mo. 232, 238-40(2), 232 S.W. 104(1).
13 Heady v. Crouse, 203 Mo. 100, 119(II), 100 S.W. 1052, 1057, 1071(3); McConnell v. Deal, 296 Mo. 275, 290-6(II-IV) (4),246 S.W. 594, 596-8 (1-3).