
    Slaughter, Treasurer, Appellant, v. Fitzgerald et al., Appellees.
    (Decided November 25, 1939.)
    
      Mr. D. H. Jackman, prosecuting attorney, for appellant.
    
      Messrs. Grabbe & Tootle and Mr. D. M. Richmond, for appellee, S. C. Baber.
    
      Mr. E. W. Johnson, for appellees, D. A. Fitzgerald, Sr., and others.
   Geiger, J.

This is an appeal from an order of the Court of Common Pleas of Madison county, Ohio, rendered in the above-entitled case, in an action by the treasurer of Madison county for the foreclosure of a tax lien on certain real estate, amounting to $4,420.02.

All named parties were served either personally or by publication, and all were in default for answer or demurrer. The court thereupon found in favor of the plaintiff, as treasurer, and held that there was due from David A. Fitzgerald, Sr., life tenant, and Madeline Fitzgerald, Evelyn Fitzgerald and David A. Fitzgerald, Jr., remaindermen in fee simple, delinquent taxes, the total amount of which, at the time of the entry, was $4,538.10.

It was ordered hy the court that unless the defendants pay the same within a limited period of time the right of redemption be foreclosed and the real estate sold.

Thereafter, David A. Fitzgerald, Sr., moved for a vacation of the default judgment for the reason that he was now ready, able and willing to pay the current taxes plus one year of the back taxes, as provided by law. Thereupon, the court ordered that the default judgment be set aside, and, as long as the defendant, David A. Fitzgerald, Sr., should pay the current taxes, further proceedings be stayed.

Thereafter, the prosecuting attorney moved for an order reinstating the former judgment for the reason that David A. Fitzgerald, Sr., had failed to pay taxes due and payable June 20, 1938. The court thereupon ordered that the former order of the court staying the execution be vacated, and the plaintiff was ordered to proceed with the sale.

David A. Fitzgerald, Jr., filed a motion representing that he, together with two living sisters, are the children of David A. Fitzgerald, Sr., and that the land described in the petition was devised by the will of Patrick Daley as a life estate to David A. Fitzgerald, Sr., and at his death to the heirs of his body, and in case of the failure of issue of David A. Fitzgerald, Sr., then to his, Fitzgerald, Sr.’s, brothers and sisters.

It is further represented that at the time each of the sisters of David A. Fitzgerald, Jr., had minor children who are alleged to be necessary parties and have not been made such. It was moved that the minor children be made parties, and that the sale, set for January 28,1939, be postponed until those necessary parties were made defendants and given .an opportunity to protect their rights.

The sheriff offered the land for sale on the 28th day of January 1939 at which time Sam C. Baber hid $10,957.50 for it and it was sold to him.

Thereafter, an application was made by the sheriff for a citation against Sam 0. Baber ordering him to show cause why he should not he punished for contempt growing out of his failure to pay the purchase price. It is represented that Sam C. Baber paid $1,095.75 on the purchase price hut has refused to pay the balance.

Baber answered the application and alleged that at the time of the sale the sheriff and prosecuting attorney made the announcement that the purchaser would receive a good and merchantable title, and that relying on such representation he hid in the property. He asserts that the title is not a good and merchantable title, stating that the land was devised by the will of Patrick Daley to David A. Fitzgerald, Sr., for and during the term of his life, and at his death to the heirs of his body, and in case of failure of issue, to the brothers and sisters of the beneficiary, David A. Fitzgerald, Sr.

It is alleged that David A. Fitzgerald, Sr., has a living son, David A. Fitzgerald, Jr., and two living daughters, that each of these living daughters has minor children who have not been made parties, that they are necessary parties, and that by reason of the fact that they were not made parties the court had no jurisdiction to order the sale of the real estate. Baber prays that the citation for contempt he dismissed, and that the amount he has paid to the sheriff he refunded.

The court on March 8, 1939, on considering the motion of David A. Fitzgerald, Jr., found that the minor children suggested in the motion as necessary parties, are the grandchildren of David A. Fitzgerald, Sr.; that their interest is remote and contingent not only upon their surviving their mothers, hut that their mothers predecease their grandfather; that the interest of each is represented by their respective mothers who are parties defendant; and that by reason thereof these minor children are not necessary parties. The motion was overruled. The prosecuting attorney demurred to the answer in contempt filed by Sam C. Baber, on the ground that the facts do not constitute a defense.

The court on August 15, 1939, on consideration of the demurrer by the prosecuting attorney overruled the same, and the plaintiff, the treasurer, not asking to plead further, the court found that Baber had not been guilty of contempt as charged,- and it was ordered that he be dismissed. It would seem that in overruling this demurrer the court reversed its former position when on March 8, 1939, it overruled the motion of Fitzgerald, Jr., and held that the minor children were not necessary parties. In overruling the prosecutor’s demurrer, the court did so because it then held that these minor children were necessary parties. Thereupon, the plaintiff gave notice of appeal to the Court of Appeals from the judgment rendered by the Court of Common Pleas on August 15, 1939, in the matter of the application for citation for contempt, the appeal being on questions of law.

Through this appeal from the order of the court finding that Baber is not in contempt for the reason that the title was defective because the grandchildren were not made parties defendant, and, therefore, there was no merchantable title, the review by this court is sought to determine whether the grandchildren were necessary parties.

The question at once occurs as to whether the order sought to be reviewed is a final order, i. e., whether it is an order affecting a substantial right and in effect determining the action and preventing a judgment.

There is no appeal from any order of the court refusing to make the infants defendants, nor has there been any final order holding that the infants are necessary parties, except so far as such a finding is inferred from the refusal of the court to hold the purchaser in contempt, and the opinion of the court filed August 5,1939, wherein it held that the minor children were necessary parties.

However, Section 12223-2, General Code, provides that a final order is an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment. It also appears that the same procedure in contempt for failure to accept title was pursued in Schneider v. Wolf, 120 Ohio St., 524, 166 N. E., 679. Without definitely passing upon this question, we will assume that the order finding S. C. Baber not in contempt is a final order as being made in a special proceeding, which is the contempt proceeding, and that it is appealable.

We take this position with some doubt, for the reason that neither party has raised the question, and all seem to assume that the appeal from the order in the contempt proceeding gives this court the right to review the real question as to whether the infants are necessary parties.

As heretofore stated, Patrick Daley devised the land to David A. Fitzgerald, Sr., for life, and then to the heirs of his body, and in case of failure of issue of David A. Fitzgerald, Sr., then to the brothers and sisters of David A. Fitzgerald, Sr.

At the beginning of the action, David A. Fitzgerald, Sr., had three children, two of whom had living minor children. The three children of David A. Fitzgerald, Sr., and his brothers and sisters were made parties but the grandchildren were not.

The estate devised by the will of Patrick Daley is an estate tail vesting in David A. Fitzgerald, Sr., as the first donee in tail, with the estate of inheritance to vest in the heirs of his body, David Fitzgerald, Jr., Evelyn Fitzgerald and Madeline Fitzgerald, upon his death. An alternative contingent remainder by the terms of the will was devised to the brothers and sisters of David A. Fitzgerald constituting a contingent estate.

The prosecuting attorney formulates two questions as determinative of the question now before the court: (1) Does an action to foreclose a tax lien under the statutory provisions of Ohio work a disentailment of entailed real estate? (2) When an action is brought to foreclose a tax lien attaching to an entailed estate, are the children of the issue of the first donee in tail necessary parties ?

The first question proposed may be more simply stated as follows: In an action to foreclose a tax lien what estate is conveyed by the sheriff’s deed made in pursuance of the statute?

Counsel for Baber state the matter for our determination as follows: (1) Are the grandchildren of Fitzgerald, Sr., who were in being at the commencement of the action necessary parties? (2) Are unborn grandchildren of Fitzgerald represented by making their parents parties? (3) Does this type of sale convey a fee-simple title to the purchaser or only the interest of Fitzgerald, Sr.?

Counsel have filed most elaborate briefs touching upon all the questions involved as well as some that do not seem to be before us, and have really written theses on the subject of entailed estates and contingent remainders. While we appreciate the efforts of counsel, we must, in the interest of proper brevity, confine our examination of the question to narrower limits.

We will consider first the question as to the estate that is conveyed upon the foreclosure of a tax lien, touching only briefly upon the pertinent statutes and decisions. We pass over without comment some of the points urged by counsel.

Section 5671, General Code, provides that the lien of the state for taxes shall attach to all real property subject to such taxes, which lien shall continue until such taxes, with any penalty accruing thereon are paid. Taxes charged shall be a lien on real property of the person charged therewith from the date of the filing of the notice of such lien.

Section 5680, General Code, provides that each person shall pay taxes for the lands of which he is seized for life, or in dower.

In Chapter 14, “Delinquent Lands,” Section 5713, General Code, provides that the state shall have a first and best lien on the lands described in the list, for the amount of taxes charged prior to the delivery of the list, with interest.

It is further provided that if the taxes have not been paid for three consecutive years the state shall have a right to institute foreclosure proceedings in the same manner provided by the chapter.

Section 5718-3, General Code, provides that it shall be the duty of the prosecuting attorney to institute a proceeding in the name of the treasurer to foreclose the lien of the state within nine months after the publication of the list, unless the taxes have been paid. The proceeding for such foreclosure shall be instituted and prosecuted in the same manner as provided by law for the foreclosure of mortgages, with certain stated exceptions.

Section 5719, General Code, provides that a finding shall be entered of the amount of such taxes as shall be found due and unpaid, and the court shall order such premises to be sold and from the proceedings the costs shall first be paid, next the amount of taxes accruing after the entry of the finding, and the balance, if any, shall be distributed according to law.

It is suggested by counsel for plaintiff that there is no language in Chapter 14, referring to “Delinquent Lands,” which mentions the disposition of an estate which has been entailed, and which involves a life estate or other lesser estates, and, therefore, that no authority is to be found suggesting the nature of the title conveyed by the sheriff’s or auditor’s deed, when the actual estate is an estate tail upon which the first donee has allowed the taxes to become delinquent.

We, however, are of the opinion that the provisions of the sections we have above alluded to are broad enough to govern the sale of delinquent lands where any life tenant has failed to pay the taxes and that Sections 5680 and 5688, General Code, are applicable to the present case.

The question to be determined is what estate is conveyed by the taxing officials where the life tenant has failed to pay the taxes, and the taxing officials seek to foreclose the lien for such delinquent taxes. There are a number of decisions in Ohio which we shall briefly note, which in our judgment throw light upon this question. In the case of Douglas v. Dangerfield, 14 Ohio, 522, the court states, at page 529:

“The tax attaches upon the land rather than upon the person * *

The case of Gwynne v. Niswanger, 20 Ohio, 556, comments upon a statute then in effect, which provided that the auditor should execute to the purchaser a deed which should convey a good and valid title to the land, and continued to the effect that it could not be contended that the deed made under the law then under examination would not convey complete legal title if the state had power to make such title. The deed should convey the property absolutely, without reservation or condition. The court further states on page 564, in substance, that the purchaser at the sale, if the proceedings be substantially correct, has a complete legal title, and does not require the aid of a court of chancery. A tax title from its very nature has nothing to do with a previous chain of title; does not in any way connect itself with it. It is a breaking up of all previous titles. The party holding such title, in proving it, goes no further than his tax deed; the former title can be of no service to Mm nor can it prejudice Mm. If the land be regularly sold for taxes, the property, accompanied with a legal title, goes to the purchaser, no matter how many estates, legal or equitable, may be connected with it.

In the case of Jones v. Devore, 8 Ohio St., 430, it is held that a valid sale of lands by an auditor for the nonpayment of taxes bars all preexisting rights of dower, inchoate or perfect. The act does not make the deed of the auditor prima facie evidence of a valid title unless it be shown to have been made in pursuance of authority given by law.

Scott, J., in the Devore case, supra, says at page 432, in substance, that all the proceedings for the sale of land for nonpayment of taxes are in rem, and not in personam. They operate, if at all, upon the land itself, and not merely upon the title of the person in whose name it may have been listed for taxation. The statute under examination provides that the deed of the auditor shall vest in the grantee a good and valid title, both in law and in equity. The judge states: “A valid tax title therefore extinguishes all previous titles, legal or equitable, inchoate or perfect; and the purchaser takes the premises discharged from all previous liens and incumbrances whatever. The tax is assessed upon the land itself, and is a paramount lien upon it; and its payment can be enforced only by the sale of the specific property taxed. All persons having any interest in the premises must, therefore, see to the payment of the taxes at their own peril.”

In the case of Clark v. Lindsey, 47 Ohio St., 437, 25 N. E., 422, 9 L. R. A., 740, the court cites, with approval, Jones v. Devore, supra. In the case of Security Trust Co. v. Root, 72 Ohio St., 535, 74 N. E., 1077, it is held that by virtue of Section 2838, Revised Statutes, the lien of the state for taxes is paramount to all other liens, and that that lien is transferred to the purchaser at a tax sale, and is not affected by the fact that at the time of the sale a suit was pending in foreclosure.

The court in the Root case states on page 537: “The taxes were a lien paramount to all other liens and claims when the foreclosure suit was commenced * * *. It was the duty of the plaintiff to take notice of these tax proceedings and govern itself accordingly. Not having done so it must, like other negligent parties, abide the result.” See, also, 33 L. R. A., 689. There is no doubt that the remaindermen could have saved their interest in the estate by paying the delinquent taxes, and could have dispossessed the delinquent life tenant of his life estate, under Section 5688, General Code.

We, therefore, arrive at the conclusion that S. C. Baber, when he purchased the property at the sheriff’s sale, secured a fee-simple estate, even though the tax lien, which was foreclosed, was the result of the nonpayment of taxes by David A. Fitzgerald, Sr., who held only a life estate, as the first donee in tail. Therefore the purchaser at the sheriff’s sale cannot set up this defense in the contempt proceedings that he did not secure a merchantable title to the fee of the real estate.

We come now to the second question presented by the record which is expressed by counsel for plaintiff under a second proposition in the following question: When an action is brought to foreclose a tax lien attaching to an entailed estate, are the children of the issue of the first donee in tail necessary parties? Counsel for Baber state the question as follows: Are the grandchildren of David A. Fitzgerald, Sr., who were in being at the commencement of the action necessary parties, and are unborn grandchildren represented by making their parents parties ?

The court below in supporting its ruling that the grandchildren were necessary parties, stated in effect that the statutes covering tax lien foreclosures indicate that there is no statutory dispensation as to proper parties, and that under the case of Schneider v. Wolf, supra, and other cited cases, all parties in being who have any interest in the property must be made parties. The trial court was of the opinion that the grandchildren of David A. Fitzgerald, Sr., who were in esse at the time of the commencement of the action, were necessary parties, and that the doctrine of virtual representation is not applicable to them through their parents.

Inasmuch as the court relied upon the Schneider case, supra, it will be well to examine it before we proceed further. After reciting facts, the court states in paragraph one of the syllabus:

“An action was duly commenced pursuant to Sections 11925 to 11935, inclusive, General Code, to diS' entail the property, all parties in being who were interested in the property being made parties to the action. None of the class of devisees named in the will as unborn were then in being. Held, that it was unnecessary to name these unborn devisees as parties to the action brought to disentail the property.”

It would seem from this that the question was whether it was necessary to make the devisees named in the will as unborn, parties defendant, and the court held that it was unnecessary to name them as parties in the action brought to disentail the property. While this last case was begun as an action in partition, the necessary parties seem to have been determined by considering it as a proceeding under Section 11925, General Code, to disentail the property.

Judge Kinkade, delivering the opinion of the court, remarks on page 531, that while it is important that all requirements of the disentailing statute be complied with, it cannot be material whether that be done only in a separate proceeding mentioned in the disentailing statute, or whether these proceedings be complied with in some other form of action such as a proceeding in partition, or any other form of action involving the title to real estate, in which it is sought to quiet a title.

If we examine the sections there under consideration as to parties, we find that the provision in Section 11925, General Code, is substantially as follows: In an action by a tenant in tail, or for life, or by the grantee or devisee of a qualified or conditional fee, or of any other qualified or determinable estate, or by a person claiming under such tenant, grantee or devisee, the court may authorize the sale of any estate whether it be created by will or came by descent when satisfied that the sale would be for the benefit of the person holding the principal estate, and would do no substantial injury to the heirs in tail or others in expectancy, succession, reversion, or remainder.

Section 11926, General Code, provides in substance that the petition shall contain a description of the estate to be sold, and that all persons in being who are interested in the estate by the terms of the will, deed or other instrument, creating the entailment or other estate thereafter, or may become interested therein as heir, reversioner, or otherwise, shall be made parties to the action.

The case at bar is a proceeding under the statute to foreclose a tax lien, and while it may have been possible under proper pleadings to secure a disentailment of the estate as provided by Section 11925, General Code, and seemingly sanctioned by the Schneider case, supra, no such attempt was made, and no proper allegations that would have supported such an action appear in the petition.

It will be noted that Section 11926, General Code, is exceedingly searching in its requirements for proper parties defendant, and it may well be held that in such an action the grandchildren of the first donee in tail were necessary parties, but we think the case last cited falls short of determining that they are necessary parties in the statutory proceeding such as that at bar, which does not seek disentailment.

In the case of Bennett v. Fleming, 105 Ohio St., 352, 137 N. E., 900, it is held in substance in the second paragraph of the syllabus that persons having a remote interest in realty are bound by the judgment rendered in an action covering the property, although not made parties to the suit, if the holder of the first estate is a party. Estates limited to persons not in being are represented by the living owner of the first estate of inheritance, so that a decree in a suit in which the first holder, a living person, is made a party will conclude the rights of afterborn remaindermen.

This holding, however, was criticized in the Schneider case, supra, where it is stated, on page 530, that the court is of the opinion that the second paragraph of the syllabus of Bennett v. Fleming, supra, is broad enough to include the fourth son as a virtual representative in this case. “Such finding was unnecessary in that case, for the reason that a member of the class of unborn devisees was in fact before the court. The second paragraph of the syllabus in that case should therefore be modified and limited to the facts in that case.”

Counsel for plaintiff, in his brief, states “that while in the court below the doctrine of virtual representation was briefed and discussed it is now acknowledged that the doctrine of representation has been everywhere held by the courts to be a rule of necessity and not of convenience, and has been applied where the person who was to be represented was not in being, and that it was necessary for the court to hold that he was represented by persons who were in being, and whose duty it was to make the same defense which could have been made had the person been in being.” Counsel seems to abandon the doctrine of virtual representation.

Counsel for Baber concur in a statement that the doctrine of virtual representation is a doctrine of necessity invoked to help the alienation. of land by allowing a member of a class to represent unborn members of that class, or where there are no members of class in esse to allow the predecessors in title to represent the unborn members of that class. They, however, assert that a parent cannot represent his unborn children by virtue of representation, which we, from investigation, find to be correct, it being held that their interests are not identical.

We are driven to the conclusion that if the grandchildren in esse or unborn were necessary parties and were not made such, they could not be considered to have been parties by virtue of the fact that their parent was made a party defendant. If they were necessary parties, those in being should have been made such and served, and they would have represented the unborn members of their class. It is, therefor, necessary to determine whether these grandchildren were necessary parties. If they were, they were not made such either by actual service or through virtual representation, and, therefore, the court would not have had authority to render the judgment foreclosing the lien, and it would follow that the title acquired at the sheriff’s sale was not merchantable, and that Baber was not in contempt. We must examine closely the provisions of the statute in reference to the foreclosure of the lien for delinquent taxes.

Section 5718-3, General Code, provides that it shall be the duty of the prosecuting attorney to institute a proceeding in the name of the treasurer to foreclose the lien of the state, and to prosecute the same to final judgment. “The proceedings for such foreclosure shall be instituted and prosecuted in the same manner as is now or hereafter may be provided by law for the foreclosure of mortgages on land in this state * * It shall be sufficient, having made proper parties to the suit, for the treasurer to make certain allegations^ and the prayer of the petition shall be that the court make an order that the property he sold by the sheriff “in the manner provided by law for the salé of real estate on execution.” It seems to us that a compliance with the statutes in reference to ordinary proceedings in the forclosure of mortgages, is sufficient.

As has already been stated but is repeated here for ready reference, the real estate in question was devised by the will of Patrick Daley to David A. Fitzgerald, Sr., for and during the term of his natural life, and at his death to the heirs of his body, and in case of failure of issue to David A. Fitzgerald, Sr., then to his (Fitzgerald,. Sr.’s) brothers and sisters.

David A. Fitzgerald, Sr., is still living and has a living son, David, Jr., and two living daughters, and each of these living daughters has minor children who are not made parties.

The chance of the grandchildren inheriting is remote. They have no present interest.

16 Ohio Jurisprudence, 418, Section 36, states:

“It is a well established rule that under the Ohio statute modifying the principles of the common law relating to estates tail, the issue of the donee in tail during the life of such donee has no estate or interest in the lands entailed which he can alienate. The issue of the donee in tail during his life are only heirs apparent or presumptive. Their title is the bare possibility or mere chance of becoming eventually the heir in tail; for, the maxim is nemo est haeres viventis. And it is a well settled rule that a mere possibility cannot be released or conveyed; the reason being that a release supposes a right in being. Therefore, a quitclaim deed executed by the issue of a donee in tail during his life cannot convey the estate even if the grantor subsequently becomes invested with the estate. In other words, the quitclaim deed passes no estate which was not then possessed hy the parties.”

In the case of Dungan v. Kline, 81 Ohio St., 371, 90 N. E., 938 (opinion by Judge Crew), at page 385, the court, after stating that a release is considered as a primary conveyance, says: “But if he have no right, nothing passes, not even a chose in action. "What estate, then, had the issue of the first donee in tail, during his life? My answer, is, none. * * * Such issue is only an heir apparent or presumptive. His title is the bare possibility, or mere chance, of becoming eventually the heir in tail; for the maxim is, ‘nemo est haeres viventis.’ And it is a well-settled rule, that a mere possibility can not be released or conveyed; and the reason thereof is, that a release supposes a right in being.”

In the case of Laver v. Kreiter, 7 Ohio App., 441, the court states on page 444:

“The estates created by the will of Philip Laver are in legal effect entailed estates, giving to the first takers an estate for life only, and to the issue of the first takers, or to the heirs of their bodies, an estate in fee simple. * * * Dungan v. Kline, 81 Ohio St., 371; Dart v. Dart, 7 Conn., 250, and Carter v. Grossnickle, 11 N. P., (N. S.), 465, affirmed without opinion, 88 Ohio St., 577.

“Under these authorities Harold A. Laver had no interest in said lands that he could alienate.”

We cite without comment Section 10512-4, General Code, passed after the above-cited cases were decided, and the historical statement. For a resumé of tax-sales statutes see Columbus Titles, Inc., v. Thatcher, 62 Ohio App., 505, 24 N. E. (2d), 620.

This matter has given us considerable concern, but we have arrived at the conclusion that the grandchildren had no present interest in the estate, and, therefore, were not necessary parties; that a fee-simple title was conveyed by sheriff’s deed to the purchaser, Baber.

It follows that the answer of Baber was not a sufficient defense to the citation for contempt, and that the court erred in overruling the demurrer of the prosecuting attorney to his answer.

The judgment of the court below is reversed and the cause remanded.

Judgment reversed and cause remanded.

Barnes, J., concurs.

Hornbeck, P. J.,

dissenting. I dissent from the proposition that the grandchildren of David Fitzgerald, Sr., are not necessary parties to this proceeding. Plaintiff’s counsel concedes and the majority holds that the grandchildren cannot be bound upon the theory of virtual representation, but say their interest is so remote that they are not necessary parties. These grandchildren may take an interest in the land under consideration. Their interest is prospective and contingent. So is the interest of the children of David Fitzgerald, Sr. They may or may not take, dependent upon their surviving their father. The grandchildren are “persons in being who are interested in the estate by the terms of the will” or in any event “may become interested therein as heir, reversioner, or otherwise” and “shall be made parties to the action.” Section 11926, General Code. (Italics ours.) This section relates specifically to the requisite allegations of the petition in an action to sell entailed real estate. Should not its provisions as to proper parties be observed in the instant action, the result of which is to pass all prospective interests of the grandchildren in the real estate to the purchaser thereof and thereby accomplishing, as the majority has properly held, all that is contemplated in a sale under Section 11925 et seq., General Code?

Judge Kinkade in the opinion in Schneider v. Wolf, supra, says on page 531:

“While it is very important that all of the requirements of the disentailing statute be complied with, it surely cannot be material whether that be done only in the separate proceeding mentioned in the disentailing statutes (Section 11925 et seq.), or whether these provisions be complied with in some other form of action, such as a proceeding in partition, an action in foreclosure of mortgage, or any other form of action involving the title to real estate, in which it is sought to quiet the title of parties interested therein as against an entailing provision found in a last will and testament covering the property.”

The test as to requisite parties under Section 11926, General Code, is not that they shall hold a present vested interest as in Dungan v. Kline, supra, and Laver v. Kreiter, supra.

If the law as announced in Dungan v. Kline, supra, is to control as to the proper parties in this case then the children of David Fitzgerald, Sr., are not necessary parties because during his lifetime his children hold no estate which they could alienate. Dungan v. Kline, supra, supports the conclusion that the grandchildren of David Fitzgerald, Sr., have a prospective interest under the will of Patrick Daley because it was there recognized that the surviving grandchildren of the donee in tail held title to shares in the lands in question as against those who claimed through deeds'made by their fathers, children of the first donee in tail, who had predeceased her.

In Bennett v. Fleming, supra, at page 353, it appeared that the will of James Bennett provided that the real estate be devised to his daughter, Mary E. Fleming for life, remainder to the heirs of her body and further provided that if Mary E. Fleming should die without surviving issue, the real estate should pass to the testator’s two remaining children, George Bennett and John P. Bennett, equally during their natural lives, with remainder to their children.

Mary E. Fleming, George Bennett and John P. Bennett were all of the children of James Bennett, the testator. At the time that the proceedings were instituted by Mary E. Fleming under Section 11925 et seq., General Code, George Bennett and John P. Bennett were living. George Bennett had a son John, a minor son Frank, and a minor daughter Matilda. The plaintiff, Helen Bennett, daughter of John, was not born until after the proceedings were fully completed. All of the living Bennetts heretofore mentioned were made parties and the minors answered by guardians ad litem. The claim of Helen Bennett in part was that her interest in expectancy was not properly protected by the decree of disentailment., Obviously it was not contemplated that she would be made a party by virtue of Section 11926, General Code, because it requires only persons “in being,” etc., to be named as parties. Further, Helen had a sister, Matilda, who clearly was in the same class as Helen and she, therefor, was virtually represented.

The court, then, in passing upon the question properly determined that Helen Bennett was not a proper or necessary party and was represented by her sister who was a party. The court, however, did go too far in the second paragraph of the syllabus wherein it is said that persons having a remote, contingent or expectant interest in realty are bound by the judgment concerning the property, although, not made parties to the suit, if the holder of the first estate of inheritance is a party. This was modified in Schneider v. Wolf, supra. The court pointed out that in Bennett v. Fleming, supra, a member of the class of unborn devisees was in fact before the court and, therefore, Helen, of the same class was bound by the doctrine of virtual representation. Bennett v. Fleming, supra, now affords no support for the claim that Helen Bennett, if living when the suit was instituted, would not have been a necessary party.

In Schneider v. Wolf, supra, the purchaser of real estate sold in partition asserted that the title was not merchantable because “The parties not represented in court formed a class of devisees named in a last will and testament of a former owner of the property as the unborn children of one of the devisees holding a life estate under the will.”

Judge Kinkade, at page 528 of the opinion, marks the requirement of the statute that only those who are in being are necessary parties and not those unborn who may thereafter acquire an interest in the property. The court expressly found that all parties interested and in being were made parties to the action. This case is no authority for the claim that living persons who may take an estate in realty under a will are not necessary parties to an action under Section 11925 et seq., G-eneral Code, to sell such real estate.

The judgment should be affirmed.  