DocketNumber: No. 39614.
Citation Numbers: 201 S.W.2d 370, 356 Mo. 148
Judges: <bold>[372]</bold> CLARK, J.
Filed Date: 3/10/1947
Status: Precedential
Modified Date: 1/12/2023
I cannot concur in the majority opinion herein. The opinion proceeds on the theory that it makes no difference that there were no allegations in the petition in the 1890 suit to show that the living children of the life tenant were made parties as representing the whole class of bodily heirs, as well as in their own right as presumptive bodily heirs, as was true in both of the cases cited as authority for affirming the judgment herein, namely: Jackson v. *Page 168
Miller,
[9] I think the failure of the petition in this respect makes just as much difference as would the failure to make a living person (with an interest) a party to such a suit. The purpose of requiring such allegations to be made is to give notice that the suit is intended to affect such interests. How can they be foreclosed without any notice in the petition that they are to be affected and without any provisions of the decree even purporting to affect them? One cannot sue a defendant individually only and then claim that the judgment affects him in some capacity as trustee, executor or guardian when there has been no intimation either in pleadings or judgment that any rights in a representative capacity were to be affected. I do not see how the doctrine of virtual representation can apply when it is not invoked.
[10] I think it is clear that the 1890 suit proceeded upon a theory exactly the opposite of virtual representation, because it proceeded on the theory that everyone who had an interest was in court and that there were no other interests involved. The petition alleged (and the decree found) that the two daughters of the life tenant (named as defendants) were the only bodily heirs of the life tenant. This was not true then and never became true, but there was no suggestion in the petition that relief was sought against anyone other than the named defendants and there is likewise no provision in the decree showing any intention to affect any other interests. Thus we have a case which is completely different from Jackson v. Miller, supra, and White v. Campbell, supra, relied upon in the opinion. I think they are the strongest kind of authority against the result reached by the opinion herein, because they clearly show that it is necessary to recognize and describe the interests sought to be reached in order to give the court any authority to affect the interests of any unknown or unborn contingent remaindermen who may be the ultimate takers of the estate created by such a deed; and how to invoke the doctrine of virtual representation so that they will be bound by a present suit.
It begs the question to argue that the kind of suit used here must be upheld because living parties are entitled to have their rights adjudicated immediately without waiting for the time when the ultimate takers are made certain by the death of the life tenant. Of course, they are entitled to an immediate adjudication but they are not entitled to have it without due process of law. Therefore, they are not entitled to have it without stating fully in the petition the interests they seek to affect and describing the persons who will own such interests so they may be adequately represented and protected by the court as the circumstances may require. Nor can such interests be affected (in my view) by a decree [383] which does not even recognize that there could be such persons and does not purport to affect the interests of anyone except the three named living defendants. It *Page 169 must not be overlooked that plaintiffs take as purchasers from the original grantor and not by inheritance from anyone. I think that the opinion of Bohling, C. in Division No. 2, correctly applies the controlling legal principles, and I adopt the same as part of my dissenting opinion, as follows:
[11] Missouri Statutes on Foreclosure. The Federal and State constitutional provisions guaranteeing against the deprivation of property without due process of law most generally preclude depriving citizens of rights in property without their consent in the absence of a judgment of a competent court having jurisdiction and power and affording the citizen an opportunity to appear and be heard. (U.S. Const., Amends., V, XIV; Mo. Const., 1875, Art. II, Sec. 30.) In conformity, the owner of the equity of redemption is a proper and, in some jurisdictions, a necessary or indispensable party to any court proceeding having the object of foreclosing the equity of redemption, the judgment being conclusive on the persons joined but a nullity as to the equity of redemption of those not a party.1 This is the announced law of Missouri. R.S. 1939, Secs. 3447 and 3460, the latter (Sec. 7089, R.S. 1889 derived from Laws 1845, p. 751, Sec. 16) providing that purchasers under executions in the article treating of "Mortgages and Deeds of Trust" (Ch. 23, Art. 2). ". . . shall not be permitted to set it (his title) up against the subsisting equities of those who are not parties thereto." See Hull v. Lyon (1858),
[12] The general situation. We think that absent these statutory provisions the result would have to be the same. Respondents, without discussing the effect of the Missouri statutes mentioned in the last paragraph, seek the application of the doctrine of virtual representation,2 one of the situations in which class actions are permitted, citing as authority 34 C.J. 1000, Sec. 1421, and the four cases next mentioned, which, insofar as they bear on the instant issue, proceeded on the theory a class action was involved. Consult Restatement of the Law, Judgments, p. 563, Sec. 116; p. 426, Sec. 86, h; p. 428, Sec. 87.
White v. Campbell (Div. II, 1927),
Jackson v. Miller (Div. I, 1921),
In King v. Theis (Div. I, 1917),
Souders v. Kitchen (Div. I, 1940),
In Edwards v. Harrison (Mo. Div. I, 1921), 236 S.W. 328, 330, 331(2), all interested parties, whether in esse or not, were considered to have been before the court in the earlier case; those not in esse, if not otherwise represented, by a testamentary trustee, who held the legal title for all such interested devises, and that judgment was held invulnerable to collateral attack. Jackson v. Miller, supra, was considered authority and in harmony. Trustees, however, represent the trust estate in many matters and may sue and be sued with respect thereto (54 Am. Jur. p. 453, Sec. 585, nn 18, 19); a difference justifying a distinction in some instances. The facts differ from the instant case.
This line of cases in Missouri heads from Reinders v. Koppelmann (1878),
Reinders v. Koppelmann, Sparks v. Clay and Acord v. Beaty have been said to stand overruled. We need not develop this feature here.5
The issue is: Were the rights of the unborn contingent remaindermen of the fourth class docked by the proceedings resulting in the judgment of 1890? The question is not could their rights be affected but *Page 173 were their rights affected. We think they were not affected on at least two additional grounds, viz.:
1st. The bill in the suit of 1890 did not set out the interests of the contingent remaindermen not in esse.
2nd. The judgment did not provide for and protect the interests of the contingent remaindermen not in esse.
Most cases on this issue involve remainders to a class, such as children, nephews et cetera, immediately vesting in all members of the class in existence and opening up to admit the unborn as they come in esse. Those in existence hold the title to the whole subject to being cut down by the birth of others of the class. No member of the class acquiring title as purchasers of the fee was before the court in 1890.
We have held that judicial proceedings and a judgment against only the life tenant [386] for delinquent taxes (a lien against all interests) and a sale under such judgment does not divest the interests of the remaindermen, they not being before the court. Falvey v. Hicks,
The only mention we find that perhaps the interests of the unborn need not be disclosed and their interests protected by parties joined or otherwise brought in through appropriate allegations in the pleadings (although considered the more prudent practice) is a brief article in 2 Mo. Bar Journal, p. 11. The article recognized that Reinders v. Koppelmann, Sparks v. Clay, and Acord v. Beaty, supra, announced the rule in Missouri but overlooked that the reasoning justifying the holding was our statute requiring the pleader to state in the petition the interests of those unknown, or uncertain, or contingent, viz.: "The requisition of such statement implies that the facts so stated shall constitute no bar to a partition." 68 Mo. l.c. 502, being the portion quoted in Sparks v. Clay, 185 Mo. l.c. 409, 84 S.W. l.c. 44. And Acord v. Beaty quotes as good law from Freeman on Cotenancy Partition (2nd Ed.), Sec. 482, the following: "But in order to bind the interests of persons not in esse the proceedings must be adapted to that purpose. If no mention is made of such interests, and the pleadings and judgment are founded upon the theory that the persons in being before the court are the only persons having any estates or interests in the property, 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 one which `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.'"
"Where the suit is brought by or against a few persons in a representative capacity, that fact must be alleged of record . . . and in the absence of such an averment the rights of the other members *Page 174 of the class sought to be represented will not be affected by the proceedings." 30 C.J.S. p. 579, Sec. 145, nn 85, 87. Consult also Id., Sec. 145 b. (3). McClelland v. Rose, 247 F. 721, 724, Ann. Cas. 1918C, 341. In order to bring a suit by or against parties as a class suit or as representatives of a class and have the judgment "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 is contemplated; that is, the suit must be brought as a representative or class suit." 39 Am. Jur. p. 926. Parties, Sec. 53, nn 18, 19. See Id., Sec. 51, nn 12 et seq.
"The bill or complaint should clearly and specifically set out the interests of all the parties including those of the remaindermen not in esse, and the contingent interests represented should be provided for and protected by the decree, unless it determines that there is no interest." 1 Freeman on Judgments, p. 1059, Sec. 490, nn 19, 20. See 2 Black on Judgments, p. 1005, Sec. 661, nn. 987, 988.
"It seems to be an indispensable requirement that the adjudication, in order to bind the interests of the unborn contingent remaindermen, should recognize their interests and provide for their protection in the judgment or decree. . . . The doctrine of virtual representation will not be extended . . . to persons not yet born whose interests are not be considered by the court in entering judgment." See Id., p. 748, Sec. 265, nn. 16, 17. To the same effect: 30 Am. Jur. p. 963, Judgments, Sec. 228, nn 19-2.
Section 183 of Vol. 2, Restatement of the Law of Property, insofar as material here, reads:
"A person unborn at the time of the commencement of a judicial proceeding is duly represented therein by a person duly joined as a party thereto, when
"a. . . .; and
"b. The judgment, decree or other result of such proceeding operates with equal regard for the possible interests of the person joined as a party and of the unborn person; and
"c. . . . ."
Our attention has not been directed to the statement of a rule with respect to the [387] pleadings in that work; but from the requirement that the judgment protect the interest of the unborn the issue should be within the pleadings that it be presented for adjudication.
[13] The bill culminating in the judgment of 1890 was styled "Walker Davis, plaintiff, vs. Marie A. Roberts, Maggie Roberts and Carrie Roberts, defendants." The defendants were sued as individuals and not as representatives of a class. There was no plea of any necessity. The bill specifically alleged, after mentioning "defendant Maria A. Roberts"; "That the other defendants herein are the only bodily heirs of said Maria A. Roberts." The suit did not proceed on the theory any defendant or defendants represented the class of Maria *Page 175 A. Roberts' "bodily heirs by Jo H. Roberts." Finding that $290 of the funds of Elizabeth J. Roberts' estate had been wrongfully used by Joseph H. Roberts to discharge his deed of trust against the land, the judgment undertook to subrogate Walker Davis to the rights of the holder of said deed of trust to that extent, necessarily reviving and reinstating a deed of trust that stood satisfied and released of record. There was no effort in the title or the body of the bill to make the decree affect the rights of any possible unborn "bodily heir" of the tenant in tail or any possible reversionary interest in Elizabeth J. Roberts and her heirs or assigns. As to be expected, there was no effort in the judgment to protect such possible interests. In fact they were not mentioned. Witness the Sheriff's deed, which conformed to the proceedings had: It recites, so far as material, that the judgment was in favor of Walker Davis and against "Maria Roberts, Maggie Roberts and Carrie Roberts" for $290; that a special execution issued thereunder and by virtue thereof he did "levy upon and seize all the right, title, interest and estate of said Maria Roberts, Maggie Roberts and Carrie Roberts" in the real estate that he gave notice he would expose for sale at public auction "all the right, title, interest and estate of said Maria Roberts, Maggie and Carrie Roberts" in the real estate; and that he sold to the purchaser, Maria Roberts, "all the right, title, interest and estate of the said Maria Roberts, Maggie Roberts and Carrie Roberts" in said real estate. The proceedings did not purport to affect any interests of any unknown or unborn person. This, no doubt, because the judgment found: "That the other defendants herein (referring to Maggie and Carrie Roberts) are the only bodily heirs of said Maria A. Roberts . . ."; which was not and is not claimed now to be the fact. Under the facts involved, the decree should have directed, first, the sale of the interests of the life tenant, cosigner on the deed of trust, which might have been sufficient to discharge the judgment. The judgment did not do this. Nor did it attempt to preserve any surplus from the sale of the land for those who might eventually qualify as the "bodily heirs." The proceedings, from plaintiff's petition to the sheriff's deed moved solely against the estate of the then defendants (Maria A., Maggie and Carrie Roberts) in the land. It may be in Davis v. Roberts that the interests of Maria A., Maggie and Carrie coincided with the interests of the appellants to defeat Davis' suit. But, if proceedings of that particular nature otherwise be in due accord with law, once the suit was determined in favor of Davis, the interests of the living and the interests of the unborn became antagonistic, in that, for instance, it was then to the advantage of the living to acquire the land at the sale under the judgment freed from all claims of the unborn and to purchase it as cheaply as possible while discharging the obligation due Davis (something easily accomplished in the absence of opposition as a practical proposition whenever desired), whereas it would be to the interests *Page 176 of the unborn, not present and unable to protect their interests by bidding, to have the real estate bring the highest possible price and the court administer any surplus for their protection until distributed according to law upon the death of Maria A.
[14] Generally some member of the class acts as representative of the class in class actions. Maria A. was a life tenant. Maggie and Carrie had a mere chance to acquire the fee. No member of the appellants' class, "purchasers of the fee," was before the court in Davis v. Roberts. The plaintiff Davis should not be allowed to select non-members of the class to represent appellants. [388] It would be better practice for the court to appoint a guardian ad litem or some other fiduciary that the unborn receive adequate representation throughout, not merely at the trial, when duly apprised of the situation by the pleadings.
Respondents' cases do not rule the issue. They were class actions and were so considered by the court. Generally judgments outside the issues presented by the pleadings are of no force and effect. We perceive of no sound reason justifying a holding that unborn nonparties, who are powerless to protect their rights, are bound by a judgment while holding all nonparties in being, who could protect their rights if made parties, are not bound where the action is not a class action. Judgments failing to protect the rights of those not in esse as the judgment in Davis v. Roberts failed to do, have been held a nullity with respect thereto. Schmidt v. Jewett,
Maggie and Carrie, the children who as individuals were parties to the litigation of 1890, had died before respondents purchased from Maria A. Respondents knew said Maggie and Carrie never had been and never could be Maria A.'s "bodily heirs by Jo H. Roberts." Nemo est haeres viventis.
This conclusion is well within the reasoning and the holdings of the following cases:
In Boone v. Oetting (Div. I, 1938),
In Heady v. Crouse (Banc, 1906),
In the later case of McConnell v. Deal (Banc, 1922),
Consult Haile v. Hill,
A deed by the life tenant and an heir expectant of an estate tail who thereafter predeceases the life tenant does not dock the title of the "heirs of the body." Nichols v. Robinson (Mo. Div. I, 1919), 211 S.W. 14; Emerson v. Hughes (Div. I, 1942),
We have not overlooked the comment in White v. Campbell,
[15] Privity. Appellants were not privies to the parties defendant in Walker Davis v. Maria A. Roberts et al. They do not take title by representation through their grandmother or through their respective mothers nor do they succeed to the rights of either. Their mothers never had title. They take, according to our statutes, as purchasers in fee simple, as grantees under the deed of Elizabeth J. Roberts to Maria A. Roberts "and her bodily heirs by Jo H. Roberts" as surely as if the fee had been granted to them by name. See McConnell v. Deal (Banc),
I think the judgment should be reversed and the cause remanded with directions to determine the rights and title of the parties in accordance with the views herein expressed.
Dodd v. McGee , 354 Mo. 644 ( 1945 )
Falvey v. Hicks , 315 Mo. 442 ( 1926 )
Norman v. Horton , 344 Mo. 290 ( 1939 )
Souders v. Kitchens , 345 Mo. 977 ( 1940 )
White v. Campbell , 316 Mo. 949 ( 1927 )
Boone v. Oetting , 342 Mo. 269 ( 1938 )
Des Champs v. Mims , 148 S.C. 52 ( 1928 )
Wilder v. Cox , 104 S.W.2d 897 ( 1937 )
Gibson v. Gibson , 280 Mo. 519 ( 1920 )
Jackson v. Miller , 288 Mo. 232 ( 1921 )
Matthews v. Van Cleve , 282 Mo. 19 ( 1920 )
State Ex Rel Mfg. Co. v. Beck , 337 Mo. 839 ( 1935 )
Schmidt v. . Jewett , 195 N.Y. 486 ( 1909 )