Brown v. Bibb

¶1 An opinion was adopted in this case in Division Two. After transfer to and reargument in banc, the divisional opinion was rejected and the case reassigned. The writer, after further study of the record and briefs and independent research, believes the divisional opinion reached the right result in affirming the judgment of the trial court.

¶2 Plaintiffs and one defendant appeal from an adverse judgment in a suit to determine title, ejectment and partition. The facts are agreed. Appellants Brown and Smith are grandchildren, and appellant Norvell is a great grandchild, of Joseph H. and Maria Roberts.

¶3 On January 5, 1874, Joseph, then the owner of the land, with his wife joining, executed a deed of trust to secure a note signed by him only. On December 3, 1874, Joseph, without his wife, Maria, joining, executed a quitclaim deed to his mother, Elizabeth Roberts. On the same day Elizabeth executed a quitclaim deed to Maria “and her bodily heirs by Jo. H. Roberts and assigns, forever.” Both deeds were subject to the deed of trust.

¶4 In 1887 Elizabeth Roberts died and Joseph was appointed her administrator. He illegally appropriated money belonging to her estate and used a part of same to pay his note which was secured by the deed of trust above mentioned, and had the same satisfied of record on November 30, 1887. In 1888 Joseph died and his successor as administrator of Elizabeth’s estate sued and recovered the amount of Joseph’s defalcation from the surety on his bond, Walker Davis.

¶5 Davis then sued Maria Roberts and her two children, Maggie and Carrie, who were the only living remaindermen under the quitclaim deed from Elizabeth to Maria. The defendants were personally served and guardians ad litem were appointed for the two children, who were then minors. Davis procured a decree for the recovery of the money *154 he had been compelled to pay, subrogating him to the rights of the holder of the note and deed of trust and ordering the land sold to satisfy the decree. The land was sold under a special execution and Maria Roberts became the purchaser. In 1937 Maria sold part of the land-to respondents, Bibb and wife, for $1,000.00 and they have made improvements to the value of $1,990.00. In the same year she sold the remaining portion to her grandson, Russell Temple and his wife, and they have made improvements to the value of $310.00.

¶6 • Maria Roberts died December 3, 1943, her daughters, Carrie and Maggie, having predeceased her in 1934 and 1935, respectively. Maria left no living children. Tier daughter Carrie’s only children are Tom J. Brown and Ellen Smith, plaintiff-appellants. Maggie’s heirs are defendants, Russell Temple, Agnes Louney and Bobby Norvell. Agnes Louney has deeded any interest she may have to the Bibbs and Temples defendants; Bobby Norvell disappeared in 1935 when about four years old and has not been heard of since. He is represented in this suit by a guardian ad litem.

¶7 The effect of the deed executed by Elizabeth Roberts was to grant a life estate to Maria with contingent remainder to her bodily heirs by her husband, Joseph, living at her death. Appellants constitute such bodily heirs. [Sections 3499, 3500, Revised Statutes Missouri 1939, (Mo. R. S. A.) (All references to statutes herein, unless otherwise designated, are to the revision of 1939 and corresponding sections of Mo. R. S. A.) Davidson v. Todd, 350 Mo. 639, 167 S. W. (2d) 641.]

¶8 Appellants claim that the purchase by the life tenant, Maria, is presumed to have been for, the protection of the interests of the remaindermen as well as her own, citing Allen v. DeGroodt, 105 Mo. 442, 16 S. W. 494; Herndon v. Yates (Mo.), 194 S. W. 46, and Souders v. Kitchens, 345 Mo. 977, 137 S. W. (2d) 501. The law on this point is well stated in the Souders case, which reviews the other two cases cited by appellants, and does not accord with appellants’ contention, under the facts of the instant case. The claim for which the land was sold was not the debt of Maria Roberts or of the re,maindermen, but, if valid as a lien upon the land, it was superior to the estates of both the life tenant and the contingent remaindermen. As held in the Souders ease, overruling the Herndon case, Maria Roberts, by her purchase, is not presumed to have intended to make an advancement to her children or descendants. She bought at a judicial sale under a decree which she did not procure and which purported to sell the entire title, and she had the same right to buy as a stranger would have had. True, in some circumstances when a life tenant or a tenant in common buys an outstanding title the remaindermen or other tenants can preserve their interests by contributing within a reasonable time their fair share of the purchase price. Appellants, by their pleadings in the instant case, do not raise that *155 issue. They do not claim that the purchase by Maria afforded them any benefit, nor do they offer to make allowance for the amount she paid, or for the enhanced value due to improvements made by her grantees. Their theory is that the 1890 sale was entirely void as to them. If their theory is incorrect, then Maria Roberts took the entire title for herself and not in trust for herself and the remainder-men. [Dudgeon v. Hackley (Mo.), 182 S. W. 1004; Bragg v. Ross, 349 Mo. 511, 162 S. W. (2d) 263; Owen v. Long, 340 Mo. 539, 104 S. W. (2d) 365; Starkweather v. Jenner, 216 U. S. 524, 30 S. Ct. 382, 54 L. Ed. 602.]

¶9 Appellants contend that the 1890 judgment was merely a money judgment and did not subrogate Davis to the rights of the person who held the note and deed of trust at the time it was satisfied of record. Their main argument on this point, aside from their claim that the contingent remaindermen were not parties to the suit, seems to be that the judgment did not expressly cancel the record of the satisfaction of the deed of trust. Walker Davis’ petition in the 1890 suit, in substance and among other things, alleged: the illegal use by Joseph Roberts of funds in his hands as administrator' to pay the note and release the deed of trust; the recovery from Davis, as surety on Joseph’s administration bond, of the amount of Joseph’s defalcation; the conveyance of the land by Joseph to his mother in her lifetime and her conveyance to Maria, Joseph’s wife, and her bodily heirs by Joseph, and that this conveyance was subsequent to the exer eution and recording of the deed of trust; that Joseph had died and that Maggie and Carrie were the children of Joseph and Maria and the “only heirs” of Maria. The petition prayed that Davis have judgment for the amount he had been compelled to pay; that the same be declared a lien on the land; that he be subrogated to the rights of the holder of the note before the deed of trust was wrongfully released, and that the land be sold to satisfy the lien. The decree followed the petition, finding all the facts for the plaintiff, Davis, established the lien of the deed of trust and subrogated Davis to the rights of the holder thereof, and ordered the land sold as prayed.

¶10 Maria and her bodily heirs were not personally liable on the note or for the amount of Joseph’s defalcation and a general money judgment against them would not have been proper, but we do not construe the decree to render such a judgment. It finds that Davis was compelled to pay for Joseph something more than $500.00, then goes on to say that Davis “have and recover” from defendants the sum of $290.00, the amount of the note secured by the deed of trust, and ordered the land sold to satisfy a lien for the latter amount with interest. The return of the sheriff and the sheriff’s deed were in accordance with the decree.

¶11 We do not agree with appellants that it was incumbent on Davis to pursue some other remedy which he may have had, nor that *156 it was necessary for the decree in express terms to cancel the record of the release of the deed of trust. We hold that the allegations of Davis’ petition and the wording of the decree were sufficient to establish his right to subrogation. [Sections 3324, 3325, 3339; Wernecke v. Kenyon, 66 Mo. 275; 60 C. J., pages 833-5, section 136; 50 Am. Jur., page 774, section 145.]

¶12 The decisive question here is: Are the. appellants, who were then unborn, bound by the proceedings in 1890 which culminated in the sale to Maria Roberts? The petition and decree in that suit did not expressly refer to unborn persons who might at the death of Maria Roberts qualify as her bodily heirs. If such persons, appellants herein, are bound by that suit it must be because it can be held that they were represented by one or more of the living defendants then in court.

¶13 The doctrine of representation or virtual representation is well recognized in equity. It does not depend upon a statute] although its application is similar, but not entirely the same, as the operation of our statutory class action. [Session Acts of 1943, page 362, section 19.] Without attempting to give a comprehensive definition of the doctrine, applicable to all cases, we state its application to the instant case as follows: the unborn contingent remaindermen are bound by the decree in the 1890 suit, although they could not be brought into court, if the pleadings and decree were sufficient to reach their interests, and their interests were so represented by others who were before the court as to receive actual, fair and efficient protection. [2 Restatement: Property, sections 182, 193; 30 C. J. S., pages 577-8-9, section 145; 34 C. J., page 1000, section 1421; 39 Am. Jur., page 925, section 51.]

¶14 In the 1890 suit the defendants were the life tenant, Maria Roberts, and her only living children, Carrie and Maggie, inaptly termed her “only heirs.” Of course, Maria while living had no heirs and it was apparent from the petition, as subsequent events proved, that her then living children might never be her heirs and that other persons might qualify as her bodily heirs at her death. Surely the plaintiff, Davis, did not have to wait until the ultimate takers of the property could be determined, for that would be to deny him all remedy. It must be conceded that there was some method whereby he could presently enforce his remedy. In a statutory class suit where there are or may be living persons, known or unknown, not made parties, it is necessary to state that fact and further allege and prove the reason for their omission and that their interests are properly represented by parties to the suit. But in the 1890 suit it would have added nothing to expressly allege that there was a possibility that unborn persons might succeed to the title. That was apparent from the petition. Nor would it have added anything to expressly allege that the interests of possible unborn persons were *157 represented by the living defendants. That was a question of fact and law also arising on the petition.

¶15 The authorities heretofore cited and others to be discussed later announce that the doctrine of virtual representation may be invoked to bind the interests of persons not in being, provided all the interests owned by persons in being are before the court, .and some one or more of them would be adversely affected by .the decree equally with the. class not in being, and would therefor have the same interest and. would be equally certain to present to the court the merits -of the question upon which the decree is sought.

¶16 In the 1890 suit the only person owning a vested estate, the life tenant, and the only living persons with an expectancy of sharing in the fee were in court. The same deed which granted to Maria Roberts a life estate also granted the fee to her bodily heirs. She could not defend her right to a life estate without defending the interests of the contingent remaindermen. She was represented by able attorneys and there is nothing to indicate that she did not in good faith defend the interests of herself and the contingent remaindermen, even though she bought the land at the sale. There is nothing to indicate that she was guilty of fraud or collusion in procuring the sale. [Edwards v. Harrison, (Mo.) 236 S. W. 328.]

¶17 Also, the interests of Maggie and Carrie Roberts were identical with'that of any unborn children or descendants of Maria who might thereafter qualify as her bodily heirs. Maggie and Carrie '■were minors, but they were represented by a guardian ad litem who was an attorney, and, being minors, their interests were under the especial protection of the court. They had no vested interest, but they had a possibility and, so far as human wisdom could then foresee, a probability of obtaining an interest in the fee at their mother’s death. They had the same incentive to defend their expectancy as they would have had to defend a vested interest, and they could not defend it without also defending the interests of any unborn children or descendants of their mother.

¶18 "We are aware that it is stated in 30 C. J. S., page 584, section 145: “Contingent remaindermen without any vested interest cannot represent subsequent remaindermen or tenants in tail,” citing Cannon v. Barry, 59 Miss. 289, and 21 C. J., page 296, which cites Williams v. Hassell, 74 N. C. 434. Cannon v. Barry does contain a statement substantially like that quoted above, but the actual holding is not in point as to representation of unborn persons. That case holds that contingent remaindermen could not recover damages from the life tenant for past waste, [they might never have a vested interest and thus never be damaged] but could enjoin future waste, provided they brought in the trustee holding the legal title and other living contingent remaindermen. ,

¶19*158 Williams v. Hassell, 74 N. C. 434, and Miller, ex parte, 90 N. C. 625, merely hold that contingent remaindermen cannot compel partition. That ruling accords’ with certain cases, hereafter mentioned, decided by us, the reason being that contingent remaindermen may never have an estate and so have no right to partition.

¶20 Whatever may be the law in other jurisdictions, this court has definitely taken the position that living contingent remaindermen,, having no vested estate, may represent and bind the interests of unborn contingent remaindermen. Jackson v. Miller, 288 Mo. 232, 232 S. W. 104, so holds on facts quite like those in the instant case. There a woman had been induced to convey her land to her brother-in-law who reconveyed it to her and her bodily heirs. Later she sued to set the deed aside and have herself decreed the owner in fee. The defendants were her brother-in-law and her minor children who were represented by a guardian ad litem. The trial court set the deed aside and the guardian ad litem appealed, contending, in substance, that the decree was invalid because, some or all of the children might predecease the life tenant and other children might be born to her. We held that any unborn children were represented by those in being and the decree was binding on their contingent interests. The only difference between that case and the instant case is that the petition in Jackson v. Miller stated that the living children were made parties in their own right and as representing the whole class of bodily heirs. That is a material allegation in an ordinary class suit where it is claimed that a part of a class of living persons represent the whole class, known or unknown, but we fail to see why such an allegation was necesasary in the case brought by Davis in 1890. The petition there showed the possibility that unborn persons might become bodily heirs of the life tenant. The question of whether such unborn persons were in law and fact represented by living parties to the suit was raised by the pleadings without an express declaration that they were so represented, although a careful pleader might make such an allegation.

¶21 In White v. Campbell, 316 Mo. 949, 292 S. W. 51, we approved Jackson v. Miller, the facts in the two cases being alike. We reached the same conclusion in Edwards v. Harrison, (Mo.) 236 S. W. 328; Sparks v. Clay, 185 Mo. 393, 84 S. W. 40; Acord v. Beaty, 244 Mo. 126, 148 S. W. 901; Reinders v. Koppelmann, 68 Mo. 482, and other cases. In Edwards v. Harrison many cases from other states are cited.

¶22 Reinders v. Koppelmann, Sparks v. Clay, and Acord v. Beaty have been criticized and partially overruled, but not as to the doctrine of virtual representation, by the following cases: Gray v. Clements, 286 Mo. 100, 227 S. W. 111; Gray v. Clement, 296 Mo. 497, 246 S. W. 940; holding that a life tenant cannot compel partition in a suit against remaindermen; Gibson v. Gibson, 280 Mo. 519, 219 S. W. 561, holding partition cannot bo had contrary to the provisions of *159 a will; Stockwell v. Stockwell, 262 Mo. 671, 172 S. W. 23, partition denied in a suit by a mother and one of her children against her other child, the title being held by the mother for life with remainder to her bodily heirs; [of course, the land could not be divided among such interests and a sale could not be ordered without a showing of necessity as provided in a statute mentioned later;] Hill v. Hill, 261 Mo. 55, 168 S. W. 1165, same holding as in Gibson v. Gibson.

¶23 Reinders v. Koppelmann and similar eases were cited in the briefs, but not mentioned in the opinion of Heady v. Crouse, 203 Mo. 100, 100 S. W. 1052. There the title to land was held by Mrs. Heady for life with remainder in fee to her bodily heirs. She brought suit against her living children and procured a decree for the sale of the land and reinvestment of the proceeds. We held the decree void because no necessity was shown for the sale, either in equity generally or under a statute-then in force. In the course of the opinion we said that two of the children “never became her heirs because they died before she did and their children who did become heirs of her body were not born until after the decree was rendered. 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..” We think the quoted statement is somewhat misleading. True, the unborn grandchildren of the plaintiff were not bound by the decree and neither were the living children who were parties to the suit; all because the court was without jurisdiction to render the decree on the allegations of the petition. If the quoted language was intended to mean that the interests of unborn contingent remaindermen cannot be bound by representation by living persons, the statement does not accord with our decisions prior and subsequent to Heady v. Crouse.

¶24 In McConnell v. Deal, 296 Mo. 275, 246 S. W. 594, the plaintiff, who held title to land for life with remainder to her bodily heirs, sued her children, as living bodily heirs and as representing such bodily heirs as might be subsequently born, and procured a decree for the sale of the land and the appointment of a trustee to manage the fund. Held, that the decree was void because the petition did not show necessity for the sale; also that unborn remaindermen were not represented. The opinion was by Judge Higbee. Judges Walker, Woodson, and D. E. Blair concurred. Judge J. T. Blair concurred in the result, and Judges Elder and Graves dissented, the latter in a separate opinion.

¶25 What was said in Heady v. Crouse and in McConnell v. Deal, concerning the doctrine of representation, was obiter and not in accord with the later case of White v. Campbell. The latter was a division case, written by Judge White and concurred in by Judges Walker and D. E. Blair, two of the judges who concurred in the majority opinion in McConnell v. Deal.

¶26*160 In Boone v. Oetting, 342 Mo. 269, 114 S. W. (2d) 981, the title to land was held by Mrs. Bozarth for life with remainder to her bodily heirs. She and some of her children brought suit in partition against her other children. Judgment was rendered and the land sold. We held the judgment void and so it was because the plaintiffs had no right of action. The plaintiff, Mrs. Bozarth, sole owner of the life estate, had'no interest subject to partition and no right to compel partition among successive owners; and contingent remaindermen are not entitled to partition because they may never have a vested interest. [Dodd v. McGee, 354 Mo. 644, 190 S. W. (2d) 231.]

¶27 We have a statute, .section 1710, which permits the owner of a vested life estate, under proper allegations, to compel a sale and conveyance of the fee, including the interest of the contingent remaindermen, and the preservation of the fund for all persons interested. Under that statute the interests of unborn persons would necessarily have- to be represented by living parties.

¶28 From what we have said it follows that the decree of the trial court, vesting title in respondents, must be and is hereby affirmed.

¶29 (dissenting). — 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.

¶30 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.

¶31 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.

¶32*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 two daughters, 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.

¶33 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 (B) 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]. ”

¶34 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 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 *162 determination under tbe original grant of its vesting or failing for want of takers as “bodily heirs.” 7

¶35 If the unborn heirs of M were virtually represented in D’s subrogation ease, 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.

¶36 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.

¶37 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, *163 which ivas set off to them in kind, there would have been (ordinarily) complete harmony of interest.

¶38 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 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.

¶39 s And on the other hand, whatever the land sold for, the Avay the subrogation suit Avas brought and decided [.that there were no other bodily heirs] the life tenant M and her tAA^o 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 shoAv. 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 betAireen the interests of the living defendants and the unborn heirs, as to make the former fair representatives of the latter.

¶40 Furthermore, it has been said that the interests of- the unknoAvn or unborn parties, if any, must be considered and protected 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 be recognized. 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 is contemplated-, 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* ...”

¶41 That requirement aa^s 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 avíII cure a jurisdictional *164 defect in the judgment. The petition also alleged there were no heirs except the two living daughters, and the court’s decree so found —holding, in other words, that there were no other interests to be represented and protected.

¶42 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.

¶43 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 an attorney 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.

¶44 Sec. 1687, authorizing suits to perfect the 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. See. 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 to'represent the unborn person. All the foregoing, under the several statutes mentioned, shows the interests of the unborn persons must be pleaded and considered.

¶45*165 That was done iu all of the decisions cited in the principal opinion and below. 12 The Reinders ease 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. The Sikemeier suit was the same. In fact the petition there prayed that the rights of the contingent remaindermen be ascertained and determined. The Sparks ease 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.

¶46 The Acord ease, 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 solé 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:

¶47 "But in order to bind the interests of persons not in esse the proceeding 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. ’ ’ ’

¶48 The opinion in this Acord ease 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— *166 where both the petition and judgment in the subrogation case affirmatively declared there were no other heirs.

¶49 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.

¶50 In the White and Jackspn 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.

¶51 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.

¶52 Other decisions in harmony herewith are cited and discussed in the instant dissenting opinion of Hyde, J. and the opinion of Bohling, *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.

¶53 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 “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 neverthless 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 . . .”

¶54 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.