Concurring Opinion
Kelley, P. J.In concurring in the majority holding in this case, it seems fitting that my reasons therefor *630should be emphasized. The main opinion sets forth the agreed facts upon which the parties tried the cause and it is unnecessary to re-state them here.
Although this is the second appeal to us of this action, the prior decision, found in Juday, Executor of Last Will and Testament of Pence, Deceased et al. v. Lantz et al. (1954), 124 Ind. App. 552, 117 N. E. 2d 382, did not establish the law of the case since it went off on a ground not now before us and no opinion was therein expressed by us upon the precise question here involved. “ ... a decision is a precedent for the doctrine necessarily involved in it and not necessarily a precedent for the pronouncements of the judge or judges who wrote it. . . . it is proper to ascertain the exact point or points before the court for adjudication and seek, in the opinion, the doctrine announced or followed by the court . . . All else in the opinion is merely the reasoning or explanation of the court and attains the dignity of neither doctrine nor precedent.” Hahn, Traeger v. Moore (1956), 127 Ind. App. 149, 134 N. E. 2d 705, 706 (Transfer denied). The doctrine adhered to in the aforesaid Juday, etc. v. Lantz et al., supra, and one of the grounds upon which a reversal was predicated, was simply that evidence tending to show fraud in the procurement of the judgment of the Elkhart Circuit Court on January 31, 1922 was erroneously admitted by the court because there was no special plea of fraud and such evidence constituted a collateral attack on the judgment of January 31, 1922. No opinion was there expresed, either directly or by implication, upon the contentions now advanced by appellants in the pending appeal. It follows that consideration of the present matter may be pursued freely and unharried by the ghost of prior announcements.
It is well in all things, to begin in the beginning. Doing so, we find, by the agreed facts, that John A. *631Pence was the owner of the real estate here involved. He made a will, effective at his death in 1918, devising one-half of the land to his daughter, Pearl, and the other half to his son, Samuel, with the stated provisions which have been the source of the controversy resulting in the exposed litigation. Other than to mention it, Pearl’s partition deed to Samuel is without consequence here.
At this point it seems appropriate to call attention th the fact that, upon the record before us, whatever title Samuel acquired to the real estate and which he held on January 19, 1922, he acquired by virtue of and through the said will of his father. No other source of title in him is shown. The same may be said of his sister, Pearl. Samuel and his wife, Fern, were divorced and thereafter on January 19, 1922 Samuel brought his action to quiet his title to the real estate, joining, as defendants, his sister and her husband and their two children, the latter being the appellants in this appeal. The complaint asserted that Samuel was the owner of the real estate in fee simple and that the said defendants claim title to and “an interest” in the land, which claims were without right and “unfounded.”
Now at the time Samuel brought his action to quiet his title, a Declaratory Judgment Act had not been enacted in this State and a quiet title proceeding was then the usual and most appropriate method resorted to for obtaining judicial construction of instruments, wills, and other sources of title as a basis for determining the validity or invalidity of an asserted legal title. Such was the remedy apparently pursued by Samuel for the determination of the validity and tenure of his asserted title. The aforesaid defendants were served, appeared to the action, and pleaded the adults, Pearl, her husband, and her daughter, Vera, disclaimed any “right” or “interest” in the land. The minor, Velma, *632appeared by guardian ad litem, and filed answer demanding strict proof of the material allegations of the complaint. It must be assumed, of course, that the court properly performed its judicial duty and required “strict proof” of the complaint allegations. In order to make strict proof of the basis and source of his title, Samuel was required to put in evidence the will of his father. In the absence of any showing to the contra, we must also assume, in favor of the decree, that the will was put in evidence and submitted to the court for construction thereof. This must be so for the will, insofar as is disclosed by the present record, was the only evidence of the source of Samuel’s asserted title in fee simple.
It cannot now be assumed, upon the record before us, in dispute of the judgment rendered therein, either that the defendants to said quiet title proceeding were not apprised of their rights and interests under said will or that they were not obliged to tender and assert any present or potential rights or interest in and to the real estate which they may have had or which was revealed by the provisions of the will. And it certainly must be assumed that the answer of the guardian demanding strict proof put in issue all the rights and interests in the land of the minor child under whatever construction the court then placed upon the will. Thus it is apparent that the court was not relieved of the duty of construing said will even though disclaimers were filed by the other three defendants. “A complaint to quiet title challenges the defendants to present their claims, and directly gives them an opportunity to assert their interest or title, and if they fail to do so they are concluded. This doctrine is as old as this court — indeed, it is much older. (Our emphasis). Davis v. Lennen (1890), 125 Ind. 185, 188, 24 N. E. 885. As against one claiming an estate in fee, an assertion of a *633future or contingent interest is sufficient to constitute an adverse claim. 74 C. J. S., Quieting Title, page 63, §39.
It is now suggested that at the time the court entered its decree, on January 31, 1922, adjudging all claims of said defendants to be without right and unfounded and declaring Samuel to be the fee simple owner of the land and quieting his title thereto, the said defendants, including Pearl and her two children, appellants here, had no ascertainable title under the will to the real estate. But it seems to me that we are now in position to make such determination. It appears more logical to me and more in accord with the consistent legal principles established by our courts safeguarding and stabilizing titles to real estate, to recognize that the Elkhart Circuit Court, in the said 1922 quiet title action, was required to and did construe the will and determined therefrom that the claims of the defendants were unfounded and that Samuel O. Pence was the fee simple owner of the land. Whether such construction was, as may be now thought, right or wrong is of no moment. The court had jurisdiction of the parties, the will was construed by a court of competent jurisdiction, the rights of the parties were determined, a final decree was entered, and there was no appeal therefrom. All the parties thereto were concluded: “It matters not how many or how great the errors of the court in the course of the suit, the decree is not void, and if not void no collateral attack can be availing.” Davis v. Lennen, supra.
The beneficiaries under the will, all of whom were made parties to the quiet title action, may not have then possessed an ascertainable “title” but most certainly the will disclosed the possibility of an “interest” in the land and it was for the court in the quiet title action in 1922, under the issue raised by the answer of the guard*634ian ad litem, to determine what that possibility was and the nature and kind of any interest the defendants may have had under the will. In fact, executory interests are not mere possibilities but are certain interests and estates, sometimes referred to- as possibilities coupled with an interest. 31 C. J. S., Estates, page 136, §122 a. The court, of necessity, must have found that they possessed no interest or possibility coupled with an interest for it concluded that “all” claims of the defendants were “unfounded” and quieted the title in Samuel as a fee simple title. “If she (in this case he) was, in fact, the sole owner in fee, the defendants could not possibly have any title whatever, for the existence of a fee simple is always and absolutely exclusive.” Davis v. Lennen, supra.
Further, in my opinion, the court, in the quiet title action of 1922, in order to arrive at the conclusion it expressed, must have interpreted the will as providing that if Samuel survived the relationship of husband and wife existing between Samuel O. Pence and his wife, Fern, at the time of the testators death, the fee simple title, under the wording of the will, would vest in Samuel absolutely. In such event, the executory devise, if such it be, was not destroyed; it never came into being, for the contingency upon which it was predicated was rendered impossible of occurrence by Samuel’s survival of the then existing relationship of husband of Fern. The fee title having vested in Samuel absolutely, under the terms, provisions and conditions expressed in the will, was properly so confirmed by the court. While the court did not employ the word “absolute” in its decree, such, nevertheless, was the true tenure of title held by Samuel, for he held the title given him by virtue of the will and not by virtue of the confirmation of his title by the court decree. If, by reason of the circumstances, Samuel took a fee simple title *635under the will, then he took a fee simple absolute, for that is what the will provided and that was the devise made to Samuel. The fact that Samuel thereafter remarried his former wife could not, in my opinion, resurrect and re-establish the already foreclosed contingency of the will, for the husband and wife relationship which existed between Samuel and Fern at the time of decedent’s death was survived by Samuel and that is the only relationship which, by the terms of the will, Samuel was to survive in order to acquire the absolute fee simple title to the land. And I think that is the construction the court confirmed by its decree quieting Samuel’s title and holding the defendants’ claims unfounded. It may be well noted here, also, that by the will the original or first devise to Samuel amounted only to a term or limited estate in the rents, profits and income of the land leaving the fee in suspension and unvested until one of two alternate contingencies should occur. The first alternate contingency was that if Samuel survived the then existing relation of husband to his wife, Pern, the fee would then vest in Samuel, absolutely. Said first provided contingency was the one which first came to pass, and thereupon a fee simple absolute vested in Samuel. In my opinion the second contingency, upon the happening of the first contingency, became void for it was then in derogation of and repugnant to the fee simple absolute title held by Samuel. See 31 C. J. S., Estates, page 137, §122,b. (2) (a).
Whether we would now so construe the will, if we were entertaining the quiet title action of Samuel at this date, is of no consequence. If it were otherwise, there would be no stability of real estate titles and the purchase and alienation thereof would be a hazardous venture, to say nothing of the effect upon the com*636mereial world in attempting to utilize real estate as security for loans and advancements.
A judgment in an action to quiet title is final and conclusive not only as to all issues actually involved and determined but also as to such matters as should have been litigated and determined. 50 C. J. S., Judgments, page 241, §738. “The statute providing for an action to quiet title was intended to secure repose and to settle in one comprehensive action all conflicting claims; and a decree in an action to quiet title, . . . cuts off all claims of the unsuccessful party which are not saved by the decree.” (Our emphasis). Central Federal Savings & Loan Association v. Cummings et al. (1940), 216 Ind. 636, 639, point 2, 25 N. E. 2d 638. “All persons who were made parties to the action or are in privity with such persons and who failed to appeal or take other proper steps to vacate the judgment, are bound by that finding. No matter how erroneous the finding and the judgment of the court based thereon may have been, such finding and judgment can not be attacked in a collateral proceeding by one who was a party to said judgment or by one in privity with such a party.” Grantham Realty Corporation v. Bowers, Jr., Trustee et al. (1939), 215 Ind. 672, 679, 22 N. E. 2d 832.
Unless we are now ready to abrogate and renounce the long list of cases, extending back to the very first of our judicial expressions, holding that in an action to quiet title, all matters affecting the title of the parties may be determined, that the decree effectually adjudicates all claims to an interest in the land, whatever their form or character, existing at the time the decree is rendered, and that the judgment is conclusive on the parties, (The Indiana Bloomington and Western Railway Company v. Allen (1887), 113 Ind. 308, 15 N. E. 451), it seems to me that we must conclude that the decree of the Elkhart Circuit Court, rendered January *63731, 1922, is decisive of this action and that the judgment appealed from in this cause must be affirmed.