Brown v. Bibb , 356 Mo. 148 ( 1947 )

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. Miller, 288 Mo. 232, 232 S.W. 104; White v. Campbell,316 Mo. 949, 292 S.W. 51.

[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 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), 27 Mo. 570, 576; McCauley v. Brady (1907),123 Mo. App. 558, 100 S.W. 541; Coffin v. Damon (1940, Mo. App.), 139 S.W.2d 563, 564(1). The judgment of 1890 was rendered in a suit to reinstate and revive a satisfied and released deed of trust, to subrogate the plaintiff, a stranger to the title, to the rights of the owner of the deed of trust, and to sell the land under the authority of the deed of trust to defeat the title of those acquiring the equity of redemption subsequent to the execution of said deed of trust. We think this could have been accomplished; but for some reason (perhaps plaintiff thought the life interest and a chance at the fee would satisfy his debt) no person holding the inheritance was sued as such nor was any effort made to bring the interests of any possible unknown or unborn person before the court. Consequently, only the equity of redemption of the life tenant, Maria A., and the chance of Maggie and Carrie Roberts acquiring title upon qualifying as Maria A.'s "bodily heirs by Jo H. Roberts" on the death of Maria A. was foreclosed. The title thus acquired can be set up "against the parties" to that suit but under the words of Sec. 3460 that title cannot be set up against the equities of others not parties to that suit.

[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), 316 Mo. 949, 951(I),292 S.W. 51(I), sought enforcement of the payment of a balance due on a land purchase contract, the issue being the vendor's "good, merchantable" title according to the contract. The vendor [384] acquired the land upon the distribution of his father's estate. The father also had executed a deed conveying the land to the vendor for life, "with remainder to the heirs of his body." This deed had always remained in the father's possession, had never been delivered, but his executors had it recorded. The son, to quiet his title, sued his brothers and sisters and hischildren, his petition alleging he sued each individually andas representatives of the class to which they belonged,especially his children, as representatives of any "unbornchildren" of the grantee in tail. He brought the inheritance before the court. The court considered the decree cancelling the deed and quieting the title in the son binding on any children of the son thereafter born.

Jackson v. Miller (Div. I, 1921), 288 Mo. 232, 233,232 S.W. 104, was to cancel two deeds. Plaintiff, a widow in moderate circumstances, soon after widowhood deeded land to her sister's husband, upon his advice, and he immediately deeded the property back to her for life with remainder to the heirs of her body. Plaintiff had left the entire transaction to her said brother-in-law. Upon definitely learning of the estate thus created, she sued the brother-in-law, her sister and herchildren to cancel both deeds; suing the children as individuals "`and also as representing the whole class of the"heirs of the body"'" of plaintiff. (Italics ours.) The court set aside the deeds.

In King v. Theis (Div. I, 1917), 272 Mo. 416, 422, 199 S.W. 183, 184(3), the plaintiffs were actual parties to the two previous suits — one in partition, the other to quiet title (Sec. 2092, R.S. 1889) in which Theis' predecessor in title prevailed. The facts take it out of the instant issue.

Souders v. Kitchen (Div. I, 1940), 345 Mo. 977,137 S.W.2d 501, did not involve representation. It held a remainderman may lose his rights, for instance, by laches or adverse possession, in the event the life tenant acquire the land under an outstanding paramount incumbrance and the remainderman fail to contribute his just portion of the price within a reasonable time or within the limitation period. The court had before it vested remainders, subject to a husband's curtesy; not remainders contingent as to the person who might take as in the instant case. The application of that rule here begs the instant issue, for unless we determine that the equity of redemption first acquired on Maria A.'s death in 1943 by the grandchildren was sold under the judgment of 1890, there would be no occasion for contribution on their part.

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), 68 Mo. 482, 501, 30 Am. Rep. 802, followed in Sparks v. Clay (Div. I, 1904), 185 Mo. 393, 408, 84 S.W. 40, 44; Acord v. Beaty (Div. II, 1912), 244 Mo. 126, 131(II), 148 S.W. 901, 903(2), 41 L.R.A. (N.S.) 400. They may be traced to English cases. Reinders v. Koppelmann and Sparks v. Clay were in partition, instituted during the life tenant's tenure. They involved contingent remainders passing to "heirs." The court held partition would lie notwithstanding the existence of the interest contingent upon who might eventually qualify as "heirs" of the named person. Reinders v. Koppelmann stressed English cases decided in 1801 (Wills v. Stade, 6 Ves. Ch. 498) and 1836 (Gaskell v. Gaskell, 6 Sim. Ch. 643). These and other English cases do not prevail over public policy declared in Federal and State constitutional and statutory enactments. Consult State ex rel. v. Beck (Banc), 337 Mo. 839, 846, 85 S.W.2d 1026, 1029; Sec. 645, R.S. 1939. Estates tail originated under the English Statute De Donis Conditionalibus of 1285 (Stat. West. II, 13 Edw. Ch. I, c. 1), enacted for the purpose of carrying out the expressed[385] intent of the donor or grantor. It was to the effect that grants to one and the heirs of his body vested no power in the donee to alien or defeat the grant but that the land, at the death of the donee, passed to his issue (children, grandchildren and more remote descendants) so long as his posterity endured, and reverted to the donor or his heirs on the failure of such posterity. Numerous objections existed to this type of an estate precluding alienation but it was many years before they commenced to be unfettered. See Taltarum's case (1473), Y.B. 12 Edw. Ch. IV, pl. 19; 31 C.J.S. 37, Sec. 27. In time they became so reduced in England as to approximate even before issue born, the conditional fee (under which the donee might alien the fee upon the birth of issue) which they supplanted. 2 Blackstone *109 et seq.; 2 Minor's Institutes 77 et seq.; 1 Coke on Littleton (19th Ed. 1853) 19a et seq. The tenants in tail could defeat the future interests of estates tail if they chose to take the proper legal steps. There was little if anything for the heirs in tail to protect if parties to the proceeding. Hence, it was considered proper for the tenant in tail to represent the future interests. The rule in Shelley's case³ (1581 — holding in a grant of freehold to one and remainder to his heirs, in fee or in tail, "heirs" was a word of limitation and not of purchase) had its influence. This rule was discarded early as law in Missouri.⁴ Fundamental distinctions exist between the English and Missouri law in that the rule in Shelly's case is not the law of Missouri; that Missouri statutes recognized estates tail for one generation — one lifetime; and that the heirs and heirs of the body in an estate tail in Missouri take as purchasers.

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 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, 315 Mo. 442, 450 (III), 286 S.W. 385, 388(4) citing cases; Bradley v. Goff, 243 Mo. 95, 147 S.W. 1012.

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.'" 244 Mo. 126, 135, 148 S.W. 901, 904.

"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 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 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 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, 195 N.Y. 486, 88 N.E. 1110, 133 Am. St. Rep. 815; Monarque v. Monarque, 80 N.Y. 320, 326; Barnes v. Barnard, 77 Hun. 234, 28 N.Y.S. 400; Des Champs v. Mims,148 S.C. 52, 145 S.E. 623, 626(3); Wilder v. Cox (Tex. Civ. App.),104 S.W.2d 897, 900(5); Annotation, 97 Am. St. Rep. 766(IV). Missouri courts have due regard for the true intent and meaning of testators (Sec. 568, R.S. 1939) and of grantors in deeds (Norman v. Horton, 344 Mo. 290, 296 (3), 126 S.W.2d 187, 190 (4, 5), 126 A.L.R. 531). Estates tail are sanctioned in Missouri for one generation. They are entitled to protection to that extent.

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), 342 Mo. 269, 273(3),114 S.W.2d 981, 983(5), a father devised land to a daughter "and her bodily heirs." She and three minor children (one thereafter becoming the mother of John A. Erdwins), by curators, instituted partition against her other children. She purchased the land at the partition sale. Erdwins' mother received her part of the proceeds but she predeceased the tenant for life. The holding that as to John A. Erdwins "defendant Oetting owned only the life estate of the mother" recognizes that unauthorized acts of parents later predeceasing the life tenant are ineffectual to defeat the title accruing to their children who later qualify as the heirs in tail.

In Heady v. Crouse (Banc, 1906), 203 Mo. 100, 119 (II), 100 S.W. 1052, 1057, 120 Am. St. Rep. 643, an action in ejectment, testator had devised land to his widow "Jane S. Shelton for life, remainder to the heirs of her body." The widow married Joseph M. Heady and had six children — Mary, Charles, Laura, Sarah, Annie, and Joseph. Mr. and Mrs. Heady instituted a proceeding against their six children (all minors at the time except Mary) wherein a judgment was entered in 1871 authorizing the sale of the land upon a finding "`that it will conduce to the interest of the defendants, who are the heirs of the body of said Jane S. Shelton, now Jane S. Heady, to sell the said real estate and to invest it in other real estate more productive and beneficial to said defendants.'" The land was then sold. The record does not disclose any order with respect to the reinvestment of the proceeds. Mary married, had two children and predeceased her mother. Laura married, had three children and predeceased her mother. Jane S. (widow and mother aforesaid) died in 1900. Then so far as material to the instant issue, the children of Mary and Laura (grandchildren of Jane S., the tenant in tail), were parties to the ejectment suit against the successor in title of the purchaser under the judgment of 1871; and court en Banc, in speaking specifically to the rights of said grandchildren and holding said judgment of 1871 not binding, said: "These latter were not bound by the decree, even if the others had been, because they derived their title, not by inheritance from their mother in whom no title ever vested, but directly from the will as being heirs of the body of their grandmother."

In the later case of McConnell v. Deal (Banc, 1922),296 Mo. 275, 290 (II, IV, VI), 246 S.W. 594, 595(2), 597(3, 5), involving[389] a grant from Rebecca E. Botts to Sarah F. Deal and "`the heirs of her body,'" the grantor reserving a life estate, and a suit by Mrs. Botts and Mrs. Deal against four children of Mrs. Deal, "as the living heirs of her body and also as a class representing such heirs of her body as may thereafter come into existence," court en Banc, after reviewing the cases, reached the same result as in Heady v. Crouse, supra, and upon like reasoning. The fact that collusion existed in the first case afforded an additional reason for the holding; note the introductory word, "moreover," to that portion of the opinion.

Consult Haile v. Hill, 13 Mo. 612; Allen v. DeGroodt,98 Mo. 159, 162(II), 11 S.W. 240(2), 14 Am. St. Rep. 626; Buckner v. Buckner, 255 Mo. 371, 164 S.W. 513; Matthews v. Van Cleve,282 Mo. 19 221 S.W. 34; Lewis v. Lewis, 345 Mo. 816, 827(5),136 S.W.2d 66, 71(10). The reasoning in Stockwell v. Stockwell (Div. I, 1914), 262 Mo. 671, 674(I, IV), 172 S.W. 23(I, IV), which contains a good discussion of estates tail in Missouri, is in accord.

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),110 Mo. 627, 19 S.W. 980; Clark v. Sires (Div. I, 1906), 193 Mo. 502, 92 S.W. 224. Heirs expectant under an estate tail may not maintain trespass for injury to the estate during the life of the tenant in tail. Stigers v. St. Joseph (Div. I, 1942), 166 S.W.2d 523, 528(6).

We have not overlooked the comment in White v. Campbell,316 Mo. 949, 292 S.W. 51, by Division Two of this court under Point II therein on the Banc cases of Heady v. Crouse, by a unanimous court, and McConnell v. Deal, five of the seven judges concurring on the issue. White v. Campbell relied on cases like Sparks v. Clay; at that time clearly overruled on the underlying issue sustaining the right to partition, and Acord v. Beaty, thereafter likewise overruled; and characterized observations of court en Banc as dictum without analyzing or developing the issue or the reasoning of court en Banc. The true ground for permitting a judgment to affect the rights of persons not in esse may well rest in the exigeneies of a given situation as observed in McConnell v. Deal, 296 Mo. l.c. 296(IV), 246 S.W. l.c. 597(3). See Young v. Hyde (Div. I, 1914), 255 Mo. 496, 510, 164 S.W. 228, 232(4). The statement harmonizes with the doctrine of virtual representation as generally announced. Where the party seeking relief conceives of no necessity for bringing in the unborn, the non-necessity should be taken as admitted.

[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), 296 Mo. 275, 296(IV), 246 S.W. 594, 597(4) (stating: "There could be no privity"); Dillard v. Owens (Mo. App.), 122 S.W.2d 76, 82 (9-11); 2 Black on Judgments (2d Ed.), Sec. 594. Respondents' cases to the point (Summet v. City Realty B. Co., 208 Mo. 501, 510(1), 106 S.W. 614, 616(I); Crispen v. Hannavan, 50 Mo. 415, 419), are on different facts.

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.

¹ 42 C.J. 47, Secs. 1562, 1566, 1576, 1777, 1782; 37 Am. Jur. 44, Secs. 584, nn. 8, 9; 550, 1121.

² See 30 C.J.S. 577, Equity, Sec. 145; 21 C.J. 295, Equity, Sec. 294; 34 C.J. 1000, Judgments, Secs. 1421, 1471; 42 C.J. 48; Mortgages, Sec. 1565; 30 Am. Jur. 962, Judgments, Sec. 228; 33 Am. Jur. 645, Life Estates, Remainders, etc., Secs. 179-183; 37 Am. Jur. 51, Mortgages, Sec. 557; 39 Am. Jur. 917, Parties, Secs. 44-55; 2 Restatement, Law of Property, 735, Sec. 183; Annotations; 132 A.L.R. 749; 120 A.L.R. 876, (884); 42 L.R.A. (N.S.) 430; 8 L.R.A. (N.S.) 4; 97 Am. St. Rep. 762; 34 Am. Dec, 363; 72 Am. Dec. 455; 69 A.L.R. 924; Ann. Cas. 1918C, p. 654.

³ (1581), 1 Coke's Rep. *93a (227). Abolished in England by Law of Property Act 1925, Sec. 131. Sec 29 A.L.R. (N.S.) 963.

⁴ R.S. 1825, p. 794, Sec. 18; R.S. 1835, p. 620, Sec. 28; R.S. 1845, p. 220, c. 32, Sec. 7; Riggins v. McClellan (1859),28 Mo. 23, 29-30; Tesson v. Newman (1876), 62 Mo. 198.

⁵ Gibson v. Gibson (Div. II, 1920), 280 Mo. 519, 530,219 S.W. 561, 564 (citing cases from both divisions) stated Reinders v. Koppelmann and Sparks v. Clay, among others, "are now expressly overruled, insofar as they conflict with the holdings of this court in Hill v. Hill (Div. II, 1914), 261 Mo. 55, 168 S.W. 1165) and in this case." Dodd v. McGee (Mo. Div. I, 1945),354 Mo. 644, 190 S.W.2d 231, held land devised to a widow for life and then to the daughter "and the heirs of her body" could not be partitioned by the daughter and the heirs expectant against the widow and stated Acord v. Beaty and other cases had been overruled on that issue. Some have said the ruling in Gibson v. Gibson should be restricted to the effect that a devisee may not force partition of land against the expressed wish of his testator. Statutory enactments so provide. Section 1721, R.S. 1939; which was Sec. 47, p. 973, Wagner Stat. 1870. That is not the instant issue. But restricting the overruling of the cases mentioned to holdings conflicting with expressed testamentary intent is too narrow, because the instrument involved in Sparks v. Clay and the instrument involved in Acord v. Beaty, to mention two cases were deeds and could not involve testamentary intent.