Baylor's Lessee v. Dejarnette

Full title: BAYLOR'S lessee v. DEJARNETTE.

Court: Supreme Court of Virginia

Date published: Feb 29, 1856

54 Va. 152 (Va. 1856)

Opinion

02-29-1856

BAYLOR'S lessee v. DEJARNETTE.

R. T. Daniel, for the appellant, Morson, for the appellee, insisted:

LEE, J.

A dies indebted to K, and by his will gives large estates to his three sons B, C and D, and directs that B shall pay one-half of his debts, and that C and D shall each pay one-fourth. B qualifies as executor of C and dies, and by his will gives an estate to E for life, and at his death to the eldest son of E living at his death, E not having a son at the death of B. K had sued B in equity to recover his debt, and after B's death and before E had a son, the suit is revived against the executor of B and against E, and after the birth of E's son there is a decree for a sale of a part of the land devised by B for the payment of B's half and C's fourth of the debt, and the land is sold and conveyed to the purchaser, the son of E not being a party to the suit. On the death of E his son brings ejectment to recover the land sold, against a party claiming under the purchaser under the decree. HELD:

1. The son of E took a contingent remainder in fee in the estate devised by B, dependent upon his being alive at the death of E.

2. The son of E not having been in being when the suit was revived against E, and having no certain interest in the estate, was not a necessary party, but is concluded by the decree against E, the tenant for life.

3. The debt due to K not having been barred at the death of A, his will created a charge upon the lands devised to his three sons B, C and D, for the payment of his debts in the proportions named therein; and this charge would prevent the bar of the statute of limitations as to the real estate taken by the sons under the devise to them.

4. By accepting the devises the devisees became personally liable in respect to the subject devised to them respectively, each for his share of the debts; and the creditors were under no obligation to look to the general estate of A before asserting their claims against the devisees and the subject devised.

5. B having received assets as executor of C and having executed a bond as executor, C's fourth of the debts of A were charged upon the real estate of B (if not otherwise) by his executorial bond.

6. But if the decree was erroneous in this respect, or if it was collusive as between the creditor and E, these subjects cannot be examined into in this collateral proceeding, but the decree is conclusive in this cause, upon the matters thereby adjudicated, and has the effect to devest the title out of E and his son claiming in remainder after him.

7. The record in the chancery cause is legal evidence for the defendant as a link in his chain of title, though the plaintiff was not a party to the cause.

This was an action of ejectment in the Circuit court of Caroline county by the lessee of John N. Baylor against Daniel Dejarnette in his lifetime, and on his death revived against his devisee John H. Dejarnette. The matters in controversy were submitted to the court on a case agreed, in which it was agreed that the court in giving judgment upon the case should be at liberty to draw all fair inferences which a jury might draw from the statement of facts and evidence; and a record and deed were made a part of the case to which the plaintiff excepted, and his exceptions were to be considered as a part of the case submitted to the court. The following are the material facts in the case:

John Baylor 1st, of New Market in the county of Caroline, died previous to the 14th of May 1772. By his will he gave to his son John Baylor 2d, his New Market estate as well as other property. He also gave a large property to his sons George and Robert; and after providing a fund for the payment of debts, which proved inadequate, he directed that the balance of his debts not satisfied out of the fund should be paid one-half by his son John 2d, and one-fourth each by George and Robert. John Baylor 2d and John Armistead the son in law of the testator, were appointed executors of the will, and both of them qualified as such; though John Baylor 2d did not qualify for some time after the qualification of Armistead.

During the lifetime of John Baylor 1st he seems to have dealt with the firm of Dunlops & Crosse, merchants of Scotland, who by their agent carried on a store in the town of Port Royal in the county of Caroline; and after his death, a bond prepared to be executed by both the executors, was executed by Armistead alone, to Dunlops & Crosse for the sum of five hundred and twenty-six pounds seven shillings and three pence, for the amount of their account. This bond bears date on the 24th of July 1795; and was given for the balance due on their account, which commenced in 1764 and continued down to 1773, embracing articles furnished to the estate after the death of John Baylor 1st.

John Baylor 2d died about the early part of the year 1808. The first four clauses of his will are as follows:

1st. I give to my well beloved wife Frances Baylor, for and during her natural life, the New Market mansion-house and garden, and all houses therewith conveniently connected; also one-fourth part of all the rents now arising and which may hereafter arise from that part of my estate herein after devised to my eldest son John; and likewise one-fourth part of all rents now arising or which may hereafter arise from that part of my estate herein after devised to my son George, which shall be in lieu of all dower in and claim to my estate.

2d. I lend to my eldest son John one-half of my New Market landed estate, which shall be so divided that my said son John may take and have the mansionhouse and brick improvements which I had commenced, one-half of the high land and one-half of the low land, with an equal moiety of all improvements, conveniences and advantages appurtenant, and one-half of the water and mill seat. I also lend to my said son John one-half of all my farming utensils and one-half of my library, consisting of from twelve to thirteen hundred volumes; one-half of my interest in all my Loyal company lands, and one-half of all those lands, for which I have brought suit in the county of Orange, if recovered, except three hundred acres thereof, which I intend for my daughter Courtney Orange Fox.

All which estate above mentioned I lend as aforesaid to my said son John during his natural life, and after his death I give and devise the same absolutely and in fee simple to his eldest son lawfully begotten then living; but if my said son John should die leaving no male child lawfully begotten, then my will is, that my son George have and hold, during his natural life, all the said estate lent to my son John; and at the death of my son George, I give and devise the same absolutely and in fee simple to the eldest son of the said George lawfully begotten then living; and if my son John should survive my son George, and die leaving no male child, then my will is that the eldest son of the said George lawfully begotten, shall have and receive absolutely and in fee simple all the said estate at the death of my son John. And in this case it is my will and I do direct that the said George and his son, who shall take the said estate above mentioned under this devise, shall pay to the daughter or daughters of my son John, if any, an annuity of one hundred pounds current money, for her or their natural life or lives.

3dly. I lend to my son George the other half of all my New Market landed estate, including one-half of the high land and one-half of the low land, and an equal moiety of all improvements, conveniences and advantages appurtenant, (except the mansion-house and brick improvements above mentioned,) one-half of my mill, or one-half of the water and mill seat. I also lend to my said son George one-half of all my farming utensils, one-half of my library, consisting of the aforesaid number of volumes, and my gold watch; likewise one-half of all my interest in all my Loyal company lands, and one-half of all those lands for which I have brought suit in the county of Orange, except three hundred acres thereof, which I intend for my daughter Courtney Orange Fox, as before mentioned. All which estate I lend to my said son George, during his natural life, and at his death I devise and give the same in fee simple and absolutely to his eldest son lawfully begotten then living; but if my son George should die leaving no male child, then my will is that my son John have and hold all the estate (lent to my son George) during his natural life, and at the death of my son John, I devise and give the same in fee simple and absolutely to the eldest son of the said John lawfully begotten then living; and if my son George should survive my son John, and die leaving no male child, then my will is that the eldest son of the said John then living shall have and receive in fee simple and absolutely all the said estate at the death of my son George. And in this case it is my will, and I do direct that the said John and his son who shall take the said estate as above mentioned under this devise, shall pay to the daughter or daughters of the said George, if any, an annuity of one hundred pounds current money during her or their natural life or lives.

4thly. I direct that no division of my estate be made between my sons John and George until the latter attains to twenty-one years of age, when the same shall be done in such manner as they shall agree upon, or in case of their disagreement, by one or more disinterested persons, who shall be mutually chosen by them for that purpose; and the division so made shall be final and obligatory.

John Baylor 2d survived his brother George Baylor and qualified as his executor; and as such received assets sufficient to pay George Baylor's fourth part of his father's debts.

After the death of John Baylor 2d his sons John Baylor 3d and George D. Baylor entered upon and became possessed of the said New Market tract of land, subject to the provisions of their father's will in favor of their mother Frances Baylor; and after George D. Baylor attained the age of twenty-one years, and about the year 1814, and prior to the birth of the plaintiff, who is the son of George D. Baylor, a parol division of the New Market estate was made between the brothers John Baylor 3d and George D. Baylor, by a line adopted by them agreeably to the provisions of the will of their father; by which division the land in controversy in this suit fell to George D. Baylor; and the land continued to be held by them in severalty, according to said division, George D. Baylor holding the land in controversy as a part of his moiety until 1826, when it was sold, as will be herein after stated.

In 1848 George D. Baylor died, leaving the plaintiff John N. Baylor, his eldest son, who was born on the 19th of August 1816, and leaving other sons. John Baylor 3d is still alive, having one son.

In 1796, Dunlops & Crosse instituted a suit in equity in the Circuit court of the United States for the eastern district of Virginia, against John Baylor 2d as executor of his father John Baylor 1st; and in their bill they set out that John Baylor 1st was indebted to them in his lifetime in the sum of five hundred and twenty-six pounds, seven shillings and three pence; that after his death his executors John Baylor 2d and Armistead came to an account with the plaintiffs, on which accounting it was ascertained that the said sum was due; and that they, well knowing that they had assets sufficient to pay it, but wanting time, they agreed with the plaintiffs that in consideration of forbearance they would give their own bond for the amount; and accordingly a bond was prepared, and was executed by Armistead, but owing to some accidental circumstance it never was executed by John Baylor 2d. And they prayed for a discovery of assets, and for payment of their debt.

John Baylor 2d answered the bill, denying that he had ever heard of the execution of the bond. He said he was very intimate with one of the plaintiffs from 1772 to October 1775, and that no demand had been made on him for a balance due from his father's estate to the plaintiffs.

In 1801 the plaintiffs filed an amended bill, in which they allege that a certain Edmund Pendleton was present when the accounts were settled between themselves and the executors of John Baylor 1st, or one of them; and they file a copy of their account. No process seems to have issued upon this amended bill; but in 1803, on the motion of the plaintiffs, the suit was remanded to the rules; and it was ordered that one of the commissioners of the court should examine, state and settle all matters and accounts between the parties, and report to the court.

In 1805 the commissioner reported that the affidavit of Edmund Pendleton, not taken on notice, had been filed with him; and if the court should admit this testimony, the commissioner would have no account to settle between the parties; because he proved that the bond of one of the executors, which was entered into at the instance of Pendleton, then the agent for the executors, closed the mercantile account.

John Baylor 2d having died in 1807 or 1808, and Thomas R. Rootes having qualified as his administrator with the will annexed, in July 1808 a bill of revivor and supplement was filed by the plaintiffs; and Rootes, the administrator of John Baylor 2d, and his widow and two sons, John and George D. were made defendants. Rootes answered, saying he knew nothing of the transactions stated in the bill; and requiring proof. John and George D. Baylor also answered, denying strenuously the liability of their father's estate for the debt, and relying upon the statute of limitations.

In 1819 the deposition of Edmund Pendleton was taken upon proof of notice to John and George D. Baylor; and he proved the justice of the plaintiffs' debt, and that the bond had been executed by Armistead in pursuance of an agreement by which the executors promised to execute a writing to ascertain the claim of the plaintiffs upon the estate of John Baylor 1st; and why John Baylor 2d had not executed it witness could assign no reason, as he never did object to any item in the account.

On the 1st of June 1820 the cause came on to be heard by consent of the plaintiffs and of the defendants John and George D. Baylor, upon the bills, their answer and exhibits, and the deposition of a witness, and upon the admissions of these defendants, that the New Market estate in their possession was liable for the debts of John Baylor 1st, and that John Baylor 2d was liable as executor of George Baylor for his portion of these debts; that said defendants had settled with Rootes, administrator with the will annexed of John Baylor 2d; and that the estate called New Market, held by them, was liable in the first place, to pay the debts of John Baylor 1st, and those by specialty binding the heirs of John Baylor 2d, and that John Baylor 1st was indebted to the plaintiffs, as proved by the deposition of Edmund Pendleton, on the 3d of May 1772, in the sum of five hundred and sixteen pounds, three shillings and eight pence, which had not been paid; and for three-fourths of which the said land was mediately or immediately responsible. On consideration whereof, the court, with the assent of the plaintiffs and the defendants John and George D. Baylor, decreed the said land to be charged with the payment of two thousand three hundred and seventy-one dollars and thirty-seven cents, that being three-fourths of the principal and interest of the debt due to the plaintiffs; and that unless the defendants John and George D. Baylor should pay that sum, with interest, at certain specified periods in 1821 and 1822, the marshal of the court should proceed, in the mode prescribed in the decree, to sell so much of the said land, from any part thereof that he might think proper, as would satisfy the decree, with the costs and expenses attending the sale.

The money not having been paid, the marshal proceeded to sell under the decree; and he reported that he had sold to John Roy one hundred and eighty-eight acres of the land at fifteen dollars per acre; and that Roy had complied with the terms of sale. In December 1826 the cause came on to be finally heard, when the sale was confirmed, and the marshal was directed to convey the land to the purchaser. This was the land in controversy, and it was taken from that part of the New Market tract which had been allotted to George D. Baylor in the division made by himself and his brother John Baylor 3d. The defendant deduced his title by regular conveyances from the marshal.

In April 1846 John and George D. Baylor executed a deed, by which they confirmed the parol division of the land made by them in 1814. This deed, after setting out the division lines, says, that they believe this to have been a just division at the time it was made, though at the time of making the deed it was unequal as to quantity, arising from the fact that the land sold to satisfy the decree aforesaid had been taken from George D. Baylor's moiety. And that this was done in consequence of George D. Baylor's having appropriated a certain debt named, due to both of them. The plaintiff objected to this deed, as also to proof of the parol division between John and George D. Baylor; and he likewise objected to the introduction of the record of the suit before mentioned as evidence.

Upon the special verdict the Circuit court rendered a judgment for the defendant; whereupon the plaintiff applied to this court for a supersedeas, which was allowed.

R. T. Daniel, for the appellant, after premising that the case turned upon the validity and effect of the decree of June 1820 in the Circuit court of the United States, insisted:

1st. That the decree was fraudulent in fact, and intended to devest the estate in remainder of the children of John and George D. Baylor: And he reviewed the facts of the case for the purpose of establishing that proposition.

2d. That the plaintiff, though he was in being at the time of the decree, was not made a party to the suit; and therefore was not bound by the decree. That this was the general rule would not be questioned. Then was this case an exception on the ground that he was a privy? That to be a privy he must be not only a privy in blood, but a privy in estate; and in this case the plaintiff claimed not under George D. Baylor, the tenant for life, but under John Baylor 2d. He referred to 2 Thom. Coke 597, 606, 717-18, note 2; 4 Comy. Dig. 338, title Fine.

He insisted further, that the doctrine of equitable representation did not extend to the case of the plaintiff. That George D. Baylor took but a life estate, with a contingent remainder in fee to his eldest son; and that as the fee was never in abeyance, it descended to the right heirs of the testator John Baylor 2d. He referred to Fearne on Cont. Remainders, ch. 6; Calvert on Parties 189, 17 Law Libr. That the cases in which the doctrine of representation was allowed, were cases of estates tail, in which the first tenant in tail was allowed to represent all the succeeding interests; but that persons entitled to an estate of inheritance must be before the court. That the furthest the courts have gone is to permit a tenant for life to represent the fee where his issue was to be entitled to the fee and had not come into existence. Calvert on Parties 48, 17 Law Libr. And he insisted that whatever was the rule in England, in Virginia under our statute the contingent remainderman was a necessary party, and his interest was to be sedulously guarded. 1 Rev. Code of 1819, p. 368-9, § 20, 21, 26, 28; Id. 462.

Morson, for the appellee, insisted:

That there was no fraud in the decree of 1820; but if there was, it could not be enquired into in this suit.

He admitted the general rule as to parties; but said there were exceptions as well established as the rule. And one of these exceptions was, that where the fee is cut up, it is sufficient to bring before the court those who make up the first fee, if they are in existence; and if they are not in existence, then the life tenant alone. Calvert on Parties 49, 189, 192, 17 Law Libr.

He insisted further, that persons having contingent interests were not proper parties, and if made parties might demur to the bill. Calvert, supra; Story's Equ. Pl. § 145; Gaskell v. Gaskell, 9 Cond. Eng. Ch. R. 448.

LEE, J.

As the lessor of the plaintiff exactly fills the description given of the devisee in remainder after the expiration of the life estate devised to George D. Baylor in the half of the New Market estate embracing the premises now in controversy, by the will of his father John Baylor 2d, being the oldest son of George D. Baylor and having survived his father, and as he brought his suit in a short time (less than three years) after the death of his father, he must recover unless the title which he was to take upon the death of George D. Baylor was intercepted by the decree in the case of the Dunlops against the representatives of John Baylor 2d, and was by virtue of that decree and the sale and conveyance made under it, transferred to and vested in the purchaser. Thus the decision of this cause must depend upon the operation and effect to be assigned to this decree in its bearing upon the estate in remainder devised to the lessor of the plaintiff, and this is resolved into the enquiry how far and to what extent he although no party was bound by it. That it was legitimate and proper evidence cannot be questioned, for a judgment or decree is always evidence of the fact that such judgment or decree was rendered and of the legal consequences of that fact, whoever were the parties to the suit in which it was rendered; and where a title is derived under a decree, it is necessary to establish its existence in order to show the legal validity of the deed made under its authority; and the admissibility of the record for that purpose as a fact introductory to a link in the chain of the title and constituting a part of the muniments of the party's estate is a matter of familiar recognition and constant practice. 1 Stark. Ev. 187, et seq.; 1 Greenl. Ev. § 538; Barr v. Gratz's heirs, 4 Wheat. R. 213. But although admissible in evidence, how far this decree serves to defeat the plaintiff's title, is a matter of different consideration, and it is insisted on his part that he ought not to be held bound by it to any extent or for any purpose whatever, because he was no party to the cause in which it was pronounced and claims not under any party but under the devise in the will of his grand father John Baylor 2d, by whom an estate for life was devised to his father with remainder to him in fee.

The general rule certainly is that none are bound by a judgment or decree except those who were parties or standing in privity with others who were. But there are exceptions to the rule of equal authority with the rule itself.

It is clear that the limitation in the will of John Baylor 2d to the eldest son of George D. Baylor, lawfully begotten, who should be living at the death of his father was neither a vested remainder nor an executory devise but must be construed to be a contingent remainder. At the time the will was made, George D. Baylor had no son, and the limitation was of a freehold for life with remainder to a person not in esse. Such a limitation is a contingent remainder. Keyes on Future Interests § 222, p. 104; 1 Lom. Dig. 411; Fearne on Cont. Rem. 9. Nor was its character changed by the subsequent birth of the lessor of the plaintiff in 1816, some eight years after the death of the testator. Whether a condition upon which a devise is made to depend is to be regarded as a precedent or subsequent condition must be determined by the apparent intent of the testator. Here it was plainly the intention that the remainderman should fill all the conditions of the devise before he could take. He must be the eldest son of George, lawfully begotten, and he must survive his father. Until all these things concurred, no estate was to vest. The language is " I devise and give the same in fee simple and absolutely to his eldest son lawfully begotten then living." Whenever the remainderman took he took an absolute, unconditional, unqualified fee simple estate. It could not be an estate vested upon his birth but liable to be defeated by his subsequent death during the lifetime of his father. If that had occurred no interest would have descended to his heirs, otherwise the ulterior limitation over to John Baylor 3d for life with remainder in fee to his oldest son would have been defeated. For there can be no such limitation over after a fee except by way of alternative or conditional limitation. And the distinction is between the cases where a fee is given to the first taker and those in which he has but a freehold. Where by a will a fee is given and afterwards an estate in fee is limited to some other person, the latter will be construed to be an executory devise provided it be limited to take effect within the time prescribed by the rules of law: but where a freehold only is given to the first taker and afterwards a fee is limited upon a contingency the subsequent devise is in the nature of a remainder and being capable of being supported by the precedent freehold estate as a contingent remainder it shall not be deemed an executory devise. For where a limitation may take effect as a contingent remainder it shall never be construed to be an executory devise. Here the estate limited to the first taker was an estate for life and the remainder over was therefore not to be construed an executory devise, but a contingent remainder which retained that character until the death of the tenant for life and which conferred upon the remainderman, no interest but a mere possibility. And these views will I think be found sufficiently supported by authority. See Keyes, § 82, p. 48; 1 Lom. Dig. 417; Fearne on Rem. 394; Plunket v. Holmes, 1 Sid. R. 47, 1 Lev. 11; Doe ex dem. Planner et ux. v. Scudamore, 2 Bos. & Pul. 288; Doe ex dem. Mussell v. Morgan, 3 T. R. 763; Purefoy v. Rogers, 2 Saund. R. 380; Carter v. Barnadiston, 1 P. Wms. 505; Luddington v. Kime, 1 Ld. Raym. 203; 3 Lom. Dig. 281; Fearne 373; Taylor and Biddall's Case, 2 Mod. R. 289.

Assuming then that the lessor of the plaintiff took a mere contingent or possible interest under the will of his grand father which would only become vested upon the death of the father, we are to enquire how far this interest was bound by the decree in the chancery suit, and whether the purchaser under it took only the interest of the tenant for life or the whole estate discharged of the limitations by way of remainder.

It would certainly be very unreasonable and unjust that a party having a charge upon an estate affecting the whole fee should be delayed or embarrassed in enforcing it by reasons of limitations by way of remainder to persons whom it might be impossible or improper to make parties to the cause. To obviate the difficulty in such cases the doctrine of virtual representation has been introduced, according to which certain parties before the court are regarded as representing those coming after them with contingent interests, who therefore it is not required should be made parties. Accordingly it is well settled that it is not necessary that remaindermen after the first estate of inheritance should be made parties: and where real estate is in controversy which is subject to an entail it is sufficient to make the first tenant in tail in esse in whom an estate of inheritance is vested a party with those claiming prior interests without making those parties who may claim in reversion or remainder after such estate of inheritance. And a decree against such tenant in tail will bind those in reversion or remainder although by the failure of all the previous estates, the estates in remainder or reversion might afterwards become vacated. Reynoldson v. Perkins, Ambler's R. 564; Lloyd v. Johnes, 9 Ves. R. 37, 56; Cockburn v. Thompson, 16 Ves. R. 321, 326; Hopkins v. Hopkins, 1 Atk. R. 581, 590; Giffard v. Hort, 1 Scho. & Lef. 386; Finch v. Finch, 1 Ves. jr. R. 534; Mit. Pl. 140, 141; Cholmondeley v. Clinton, 2 Jac. & Walk. 133. But the courts have not stopped here; for under certain circumstances, the first tenant for life has been regarded as representing the entire fee, and the decree rendered against him been held binding upon those coming in after him in remainder. In Giffard v. Hort, ubi sup. Lord Redesdale says, " where all the parties are brought before the court that can be brought before it and the court acts on the property according to the rights that appear, without fraud, its decision must of necessity be final and conclusive. It has been repeatedly determined that if there be tenant for life remainder to his first son in tail, remainder over, and he is brought before the court before he has issue, the contingent remaindermen are barred." And in the same case, this learned judge remarked that " courts of equity have determined on grounds of high expediency 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." In Leonard v. Lord Sussex, 2 Vern. R. 527, there was a tenant for life of a trust remainder to his sons. The tenant for life before he had a son born brings a bill against the trustees and an account is decreed which is afterwards taken: Held that the account should stand and be binding upon the sons. In Allen v. Papworth, 1 Ves. sen. 163, there was a bill by husband and wife and an account taken. Lord Hardwicke said the account should be held binding on any contingent remainderman when his title should afterwards vest nor should he open it unless fraud or errors are shown therein. He said it " often happens on settlements where there is tenant for life with limitations in remainder, upon a bill for an account where none but tenant for life is in being, a child afterwards coming in esse shall only have liberty to surcharge and falsify if no fraud." In this case it appears that in point of fact the son was in being at the commencement of the proceeding and there appears to be a mistake in the report which assumes that at that time no other person was entitled. See note of the editor and Supplement, p. 92. The case of Finch v. Finch, 2 Ves. sen. 491, was a bill by tenants for life for the execution of the trust of an act of parliament and the will of Lord Nottingham; and one of the questions was whom it was necessary for the plaintiff to bring before the court. Lord Hardwicke said " it is admitted to be necessary to bring the first person entitled to the remainder and inheritance if such is in being. It is true if there is none such in whom the remainder of the inheritance is vested in being (as if none of the sons had issue male,) then it is impossible to say the creditors are to remain unpaid and the trust not to be executed until a son is born. If there is no first son in being the court must take the facts as they stand. It would be a very good decree and no son born afterwards could dispute it unless he could show fraud collusion or misbehaviour in the performance of these trusts: otherwise he would be bound by it." It will be observed that in this case the tenant for life was plaintiff and the remainderman who it was said should be brought before the court was one who had a vested and not a mere contingent remainder. So a bill by tenant for life with remainder to his unborn sons in tail, for partition, has been maintained and the decree held binding on the sons when in esse: and the vice chancellor said the court frequently decreed partition where the tenant for life was defendant: that the manner in which the parties were arranged could make no difference and therefore that in this case the partition might very well be carried into effect. Gaskell v. Gaskell, 6 Sim. R. 643, 9 Cond. Eng. Ch. R. 448.

Now when the original, amended and supplemental bills in this case were filed, there was no son of George D. Baylor in esse, the lessor of the plaintiff, who was the oldest son, not having been born till August 1816; it was therefore sufficient according to the rule to make George D. Baylor the tenant for life, defendant, and the decree against him would bind all contingent remaindermen coming in after him. And the only question is whether upon the birth of the lessor of the plaintiff pending the suit it was necessary in order to bind him that he should have been made a party by an amended or supplemental bill. I think not. No estate vested in him upon his birth and none could vest unless he fulfilled also the condition of surviving his father. Until then he could have no title to the inheritance, but a mere contingent interest or possibility that he would take on the death of his father, by reason of his outliving him. The only vested estate was that of the tenant for life, his father, and he was the proper party to bring before the court as representing the whole estate and all those who are to come in after him by way of contingent remainder. Those who might be entitled to future uncertain and contingent interests it was neither necessary nor proper to make parties although they might be in life. This is the doctrine asserted in Pelham v. Gregory, 1 Eden's R. 518; S. C. 3 Bro. P. C. 204. Lord Northington speaking of the defendants Lord Vane and Lord Darlington, said " Now the rights of these two defendants in the condition in which this lease is at present, are legal rights and yet being contingent and future, they are not attended till they come into possession with a legal remedy. And I have no apprehension that any person can have a right to call another into this court to make him contest here by anticipation a future legal right: I have as little conception that this court when such a right is brought hither has any jurisdiction to take cognizance of it." 1 Eden's R. 520. This case was regarded by Lord Redesdale as a decisive authority and he expressed the opinion that many cases might be found where bills had been dismissed upon this ground. And he accordingly held upon a similar principle that a remainderman could not be held to litigate a title which might never be beneficial to him. Devonsher v. Newenham, 2 Sch. & Lef. 197. If it was not necessary to call in the contingent remainderman in those cases, still less would it be so where, as here, he was not born till after the suit was commenced.

In the excellent treatise of Mr. Calvert on Parties to Suits in Equity, the general principle of representation established by the cases is thus expressed: " In respect of the first estate of inheritance and of all interests depending upon it, it is sufficient to bring before the court the person entitled to that first estate: and if there be no such person then the tenant for life." Calvert, p. 52. It is stated in terms very similar or to the same effect by other learned authors. Story Eq. Pl. § 145, 792; Coop. Eq. Pl. 36, 77 to 83. Mr. Calvert however suggests that there should be a qualification as to the tenant for life and that except under very particular circumstances, the tenant for life who should be regarded as representing the whole estate must be one whose child if he have one, will become entitled to the inheritance. The idea is that there would be thus afforded a guaranty for a proper defense according to the dictum in Dayrell v. Champness, 1 Eq. Cas. Ab. 400, that the tenant for life is to take care of the inheritance for his children. He admits however there is no direct authority for the suggestion though he thinks it is countenanced by expressions to be found in several of the cases. Calvert on Parties, p. 52, 53, 192. The condition required by this suggestion is however fully met in this case as the lessor of the plaintiff who would take the remainder in fee if he survived his father is the son of the tenant for life who was made defendant.

Upon the merits of the chancery case I shall remark very briefly.

I think the debt claimed was sufficiently established by the testimony of Pendleton, and though it might have been barred by the statute of limitations in an action upon the account at law, yet I conceive that the amount for which the decree was rendered was not barred at the death of John Baylor 1st in 1772, and that by his will a charge was created upon the lands devised to his three sons John 2d, George and Robert for the payment of his debts in the proportions named in the will: and this charge would prevent the statute from running against the proceeds of the sale of the land upon the principles of Fergus' ex'ors v. Gore, 1 Sch. & Lef. 107; Burke v. Jones, 2 Ves. & Beame 275; Ault v. Goodrich, 4 Russ. R. 430, 3 Cond. Eng. Ch. R. 740; Kane v. Bloodgood, 7 John. Ch. R. 90, 129. That there was such a charge seems to be very clear. Both parties in this action claim title from John Baylor 1st as the common source. The devisees under his will took the estates devised to them upon the terms of the will which expressly required that John should pay one-half of the debts not otherwise satisfied and George and Robert should pay the other half. By accepting the devises, the devisees became personally liable in respect of the subjects devised to them, respectively, to their shares of the debts and the creditors were under no necessity to look to the general estate of John Baylor 1st before asserting their claims against the devisees and the subjects devised. John Baylor 2d who took the New Market estate was in Europe at the date of the will and at the testator's death in 1772. When he returned to Virginia does not distinctly appear, but he states in his answer that he went back to Europe in 1775 so that he probably returned from his first visit shortly after his father's death: and there is no reason to suppose that the profits of the property during the interval were sufficient to pay the debts or that they were paid otherwise. Nor was the bond given by Armistead a discharge of the debt. It purports to be the bond of John Baylor as well as of Armistead and never having been executed by the former it may be questioned whether it was binding even on Armistead upon the principles of King v. Smith, 2 Leigh 157, and Hicks v. Goode, 12 Leigh 479, 490. But however this may be, in the absence of proof that it was intended at the time to discharge the original debt, it ought not to be deemed to have that effect. I refer to the cases of Sale v. Dishman's ex'ors, 3 Leigh 548, and Weaver v. Tapscott, 9 Leigh 424, the principles of which will apply to the question here. That the decree was for three-fourths of the debt instead of the moiety only charged on the estate of John Baylor 2d by his father's will constitutes no objection. John Baylor 2d was the executor of his brother George and doubtless gave bond as such, and having received assets, he should have paid George's fourth part. Failing to do this, this fourth was a debt from his estate and was charged upon his real estate (if no otherwise) by his executorial bond.

But with regard to these and the other supposed errors in the proceedings it is sufficient to say that they cannot be examined into when the decree is offered in evidence in a court of law. And so with regard to the charge of collusion. If there was any improper arrangement between those parties to subject the property to a debt with which it was not chargeable in whole or in part, or if any wrong were done in throwing the whole burden upon that part of the land held by George D. Baylor, the remedy is not to be sought in the exclusion of the decree which was the basis of the defendant's title. All these are matters purely of equitable cognizance with which the court of law has no concern. To undertake to reverse the proceedings would be to usurp the province of the court of chancery, and to do what even that court would not do in this collateral way. For that court would not without proper proceedings to present the subject directly, disregard this decree or reject it as evidence. So long as it remains unreversed it must have the force and effect of an adjudication upon the entire estate and must be considered to devest the title out of the defendant and those claiming in remainder after him. Although it is a decree in chancery and not a judgment at law, yet our courts of chancery being courts of record, their decrees may be the basis of title in a court of law, the same as a judgment of recovery in a real action. And the deed of the marshal made in conformity to its decree operates to transfer the entire title in fee simple to the purchaser and must so stand and be accepted as long as the decree on which it rests remains in force. If there be errors to the prejudice of the remainderman for which the decree is liable to be reversed he may, it would seem, make himself a party to the original suit by filing a supplemental bill to have the benefit of the proceedings for the purpose of appealing. 3 Dan. Ch. P. 1604; Giffard v. Hort, ubi sup.; Osborne v. Usher, 6 Bro. P. C. 20; Lloyd v. Johnes, 9 Ves. R. 37, 55; Calvert on Parties 193; Sto. Eq. Pl. § 144. Whether however an appeal would avail the party in this case, or whether he can maintain a bill to impeach the decree for fraud or whether he can have contribution or a new partition are questions not arising in this case and upon which I mean to express no opinion. All that I mean to say is that as the case now stands, the doctrine of equitable representation by the father, tenant for life, of his sons claiming a contingent remainder in fee, must apply; and that although the remainder might afterwards if not hindered have become a vested estate, yet that the remainderman is still bound by the decree and must so remain as long as it continues in force and unreversed.

I have not thought it necessary to examine the analogous case of a recovery at law in a real action and its effect in defeating subsequent estates in remainder: nor to consider how far that effect would be avoided by showing that the recovery was by default or collusion under the provisions of our act taken from the statute of Westm. 2. The court of law must give to this decree the same force and effect which it would have in the court of equity when brought incidentally to its consideration in another suit. In the latter it must be regarded as binding upon all those coming in by way of contingent remainder after the tenant for life, and it must therefore be regarded as binding upon the lessor of the plaintiff in this action.

I am of opinion to affirm the judgment.

The other judges concurred in the opinion of LEE, J.

JUDGMENT AFFIRMED.