Downin v. Sprecher

Miller, J., delivered the opinion of the Court. This ejectment is for an undivided sixth part of certain lands in Washington county. The plaintiffs claim title under the will of their grand-father, and the defendant as purchaser under a decree in equity. The main facts of the case are these: John Johnston died in 1821 seised in fee of the lands in controversy, leaving a will by which he devised an undivided sixth part thereof to each of five daughters, the devise to one being charged with the payment of the sum of $3,06 L to the other devisees named in the will, in equal shares.

The remaining undivided sixth part he devised to his “ daughter, ⁴⁷⁸ Susanna Downin, during her life, and after her decease, to her male children on her body lawfully begotten or to be begotten, except the value of $1,000 worth of the said land, of which said $1,000 worth of land the other legatees herein named arc to have equal shares; the said children to hold in fee-simple after her death.” At this time Mrs. Downin had living two sons, William and David, and she subsequently had three others, John, Joseph and Amos, born respectively in 1828, 1831 and 1836. In 1823 a bill in equity was filed by four of these devisees against Mrs. Downin, her husband, and her two sons then in esse, and Margaret Johnston, the other devisee. This bill, after setting out the devises of the will, charges that Mrs. Downin had then living two male children on her body lawfully begotten, viz.: William Downin and David Downin, both of whom were infants; that a partition of the lands could not in any manner be advantageously made amongst the said devisees, and that it will be for the interest and advantage, both of the said infants and of the other devisees above mentioned, to sell the said lands, and forasmuch as it is the province of a Court of Equity to order the sale of lands in which infants hold an interest in common with other persons, prays for a sale thereof, and for general relief. Guardians ad litem for the infants were appointed, and answers of all the defendants filed, but no commission to take testimony was issued and no proof taken.

In this state of case, the Court, on the 4th of February, 1823, passed a decree directing a sale of all the real estate in the proceedings mentioned, appointing a trustee to make the same, the proceeds to be brought into Court, to be applied under the direction of the Court according to the rights of the several parties entitled to receive the same, and directing the trustee, on payment of the money, to convey the land to the purchaser in fee-simple. Under this decree the trustee sold the land to the defendant, the sale was duly ratified by the Court, and the purchaser subsequently obtained a deed from the trustee. Mrs. Dow ⁴⁷⁹ nin, the tenant for life, died in 1869, and shortly thereafter, her five sons above named instituted this action. The difficulty presented is as to the effect of this decree— was it binding upon the three sons not parties to the bill and not then in esse, so as to divest their title to the land ?

This question goes to the power and jurisdiction of the Court, and not to mere errors or irregularities in its exercise, for it is clear, these latter cannot be reviewed collaterally in this action. House vs. Wiles, 12 G. & J., 338 . It is to be noted, this was not a creditors’ bill for a sale of the real estate to pay the debts of the testator, nor to enforce any charge which he had imposed upon the land, and it was conceded in argument that, up to that period, no statute had been passed conferring any jurisdiction upon the Chancery Courts that could give to this decree the effect of binding the interests of these unborn sons. Since that time, the Act of 1862, ch. 156, has provided for such cases, and in express terms made the decree of sale, if all the parties in being are parties to the proceeding, binding upon all persons, whether in being or not, who claim any interest in the land under any of the parties to the decree, or under any person from whom any of the parties to such decree claim.

The facts that this law was passed, and that prior thereto legislative aid had, in many instances, heen invoked by special laws to meet identical and similar cases, very clearly show what construction the Legislature placed upon the powers of the Equity Courts, and what was the prevailing opinion of the profession. But these, though always entitled to the highest respect, and often affording important aid to judicial determinations, are not conclusive upon the Courts, and we must, therefore, consider the grounds taken in argument by the appellee’s counsel. Ilis position is that, without reference to authority derived from legislation, the Court had power by decree of sale to convert this entire estate into money, and that these after-born children are bound by that decree. It is insisted in the first place, that Mrs. Downin, the life-tenant and her sons then living, having been made parties, ⁴⁸⁰ there was a virtual and sufficient representation of all proper and necessary interests in the land, and in such case the decree binds the other persons not in being.

The doctrine of representation, which undoubtedly is firmly established in the English Courts, is thus stated in Calvert on Parties, 48 to 52: “Another kind of representation admitted in the practice of Courts of Equity, is the representation of all persons having interests in real property, subsequent to the first estate of inheritance, and liable to be defeated by a recovery. This representation takes place in the person entitled to the first estate of inheritance. * * * This modification of the general rule has been adopted upon grounds partly of necessity, partly of convenience, and upon a principle of justice to persons entitled to remote interests, that they may not be exposed to any vexations which the caprice or self-interest of those who actually enjoy, or wish to claim a property, might chance to produce. Another- important principle in favor of this doctrine is, that in the person of the first tenant in tail there is brought before the Court one, whose interest is of such a nature as to insure his giving a fair trial to the legal right. This last principle seems to have established the limit to the number of interests, which may be represented by the person entitled to the first estate of inheritance; * * * they are interests which the tenant in tail can destroy, and which for that very reason, there is peculiar propriety in empowering him to defend.” Thus far neither the rule nor its reasons have any application to the case before us.

By this will the sons of Mrs. Downin, living at the death of the testator, took vested remainders in fee, subject to open and let in after-born sons. The interests of the latter could be destroyed neither by the life-tenant nor by their living brothers; their rights derived under the will were indestructible by act of any of the parties having interests prior to or in common with them, and it would be strange if, in the absence of legislative sanction the Court could work out a representation for them through these parties collectively, for the purpose of divesting title to ⁴⁸¹ land, and that too merely to subserve, as the bill alleges, the interest of the representatives themselves. But it is contended this doctrine of representation has been carried further by the dieta of Lord Redesdale, in Gifford vs. Host, 1 Sch. & Lef., 409, to the effect that “ it is sufficient to bring before the Court the first tenant in tail in being, and if there be no tenant in tail in being, the first person entitled to the inheritance, and if no such person then the tenant for life.” No case however has been cited, and we have found none where it has been decided the tenant for life was a sufficient party to represent the estate, except in cases of partition simply, or where the object of the suit