Culley v. Elford , 187 Ala. 165 ( 1914 )

SAYRE, J.

The pleadings and the facts upon which was based the decree under review will be stated in the report of the case. A fair statement of them in a general way will be found in the brief of the guardian ad litem for appellants.

About the propriety of the decree under which appellee claims, to the extent it affected the rights of the parties to the cause in which it was rendered, we have at this -time no concern. To what extent that decree was within the power of the court is not now challenged, and its disposition of the property in question must be respected.—Goodman v. Winter, 64 Ala. 410, 38 Am. Rep. 13.

I>ut the decree in that case went further. It purported to cut off and conclude all persons having an interest in the property under the will. It directed, however, that other property should be purchased in lieu of the property devised, and undertook to create in the devisees interests in every respect the same as those limited to them by the devise of the property sold. The bill in this cause seeks to declare the effect of the decree of sale had in the former proceeding as binding upon the appellant infants, not upon any new consideration now brought into view for the first time, but upon the theory that the court in the former proceeding had jurisdiction to determine, as against the executory devisees and without notice to them, whether a sale for reinvestment should be ordered in consideration alone of the interests of the life tenant and the vested remainder-men. The question then is whether appellants, Avho were not parties to the proceeding for the sale of the land now held by appellee, are bound by the decree in that case.

Though the court is consistently scrupulous of affecting the interest of persons not before it, there are cases requiring a full and final disposition of the estate in controversy, in Avhich the court, proceeding upon the ground that parties before it virtually represent all property and necessary interests, Avill undertake by its decree to bind all persons so represented, though they are not, or cannot be, made parties.—Story Eq. PL 140-147. It would be “unreasonable and unjust that a party having a charge upon an estate affecting the whole fee should be delayed or embarrassed in enforcing it by reason of limitation by Avay of remainders to persons whom it might be impossible or improper to make parties to the cause.”—Baylor v. Dejarnette, 13 Grat. (Va.) 152. Hence in such cases courts of equity have determined, “on grounds of high expediency,” that it is sufficient to bring before the court the person having the vested heritable estate, omitting those who may claim remotely and contingently in remainder. But, where the doctrine of virtual representation is allowed to operate, the relation between the parties present and those represented should be such as to afford reasonable assurance of proper defense; and Judge Story says that:

“If a person is in being, claiming under a limitation by way of executory devise, not subject to any preceding vested estate of inheritance by which it may be defeated, he must be made a party to a bill affecting his rights.”—Goddess v. Williams, 2 Y. & C. 595.

The whole subject may be summed up substantially in the language of the headnote to McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct. 652, 28 L. Ed. 1015:

“All persons interested in a suit in equity, and whose rights will be directly affected by the decree, must be made parties, unless they are too numerous, or some of them are beyond the reach of process, or not in being; and in every case there must be such parties before the court as to insure a fair trial of the issue in behalf of all.” An elaborate discussion of the subject may be found in our case of Shackelford v. Bullock, 34 Ala. 418.

Appellee cites Duncan v. De Yampert, 182 Ala. 528, 62 South. 673, to the proposition that, upon the birth of children to Mrs. Sides, the entire estate in remainder vested in them, and hence that appellants can in no event take anything under the will. But the case does not sustain the proposition, for the reason that here testator went a step further than did testator in that case; she provided a further limitation over; she gave a life estate to her daughter, with remainder “to the issue of her daughter’s body at the time of her death,” and then she provided that, should her daughter die without an heir or heirs of her body, meaning lineal descendants, then over; and appellants claim under this last limitation. Their interest is remote and contingent, and may never, probably will never, come into possession; but it is more than a mere hope or expectancy; it has an existing legal foundation in the will, and is an interest for the protection of which the powers of the chancery court may be invoked.—3 Pom. Eq. Jur. § 1286.

Appellee refers to some of our cases on the subject of partition. They do not reach the question at issue. Partition is a matter of right, and may be compelled by any cotenant having legal or equitable title and actual or constructive possession. “In the case of a strict partition, by division of the land itself, it is sufficient to make the present owner, or, in some cases, the tenant for life of each share, a party, because the interest of those Avho come after him is not otherwise affected than by being changed from an estate in common to an estate in severalty.”—McArthur v. Scott, supra. In the case of a partition by a sale of the land, the rights of remaindermen may.be secured by an investment of the proceeds according to their interests.—Mead v. Mitchell, 17 N. Y. 210, 72 Am. Dec; 455. But the decree Avill not bind remaindermen in existence, unless they have been joined as parties.—Freeman on Coten. § 463. Nor Avill a decree in either kind cut off remaindermen not then in esse from a share in either land or proceeds Avhen they come into being.—Monarque v. Monarque, 80 N. Y. 320; Downin v. Sprecher, 35 Md. 474.

Here the case is different. The proceeding under Avliich appellant claims was not for partition in any kind. It Avas for a sale to enable the life tenant to discharge a lien Avhich she, to the extent of her interest, had fastened upon the property, and for reinvestment for the benefit of her children, the first remaindermen. It properly invoked jurisdiction only in so far as it sought a reinvestment of the interest of the infants.— Gassenheimer v. Gassenheimer, 108 Ala. 652, 18 South. 520. Here the Avill is the law of the estate, and all interests created by it must be respected and preserved. While it is not necessary to deny the court might have changed the investment to meet the necessities of the infants, proceeding with all interests before it, Ave think there was no power to charge the entire title with the incumbrance created, by the life tenant not to change the identity of the property devised as against these appellants in their absence.

Possibly appellee might have some relief from the situation in which she has placed herself by a bill asking the court to elect for the infant defendants whether they will stand by their interest in the property devised or take a like interest in the substituted property. The bill in its present shape, however, cannot be sustained as a bill for that purpose, nor was any evidence taken to enlighten the court as to where the interest of the infant defendants lay or what the election for them should be. The decree in this case will not be taken to prejudice such a bill if filed.

The decree below will be reversed, and a decree here rendered dismissing the bill.

Reversed and rendered.

Anderson, C. J., and McClellan and de Graffenried, JJ., concur.