"This cause is submitted on an agreed statement of facts under the provisions of section 2117, R. S. Missouri 1909. The facts are set forth in detail in the agreed statement, and it is not deemed necessary to recite them in full in this opinion.
"By paragraph 6 of the agreed statement of facts it is agreed that, if under the facts agreed upon the court finds that the plaintiff has a good fee-simple title to the land in controversy, then the court shall enter judgment against the defendants for specific performance of their contract to purchase, and requiring them to pay to the plaintiff the sum of $46,000 upon his tendering to them a deed of general warranty conveying the lands described in the contract between plaintiff and the defendants, and that if the court finds that, under the facts agreed upon, the plaintiff has not a good fee-simple title to said lands, then the court shall enter judgment against the plaintiff, in favor of the defendants, for the sum of $2,000, with 6 per cent. compound interest thereon from January 1, 1920, the said sum of $2,000 being part payment made under said contract between plaintiff and defendants. Plaintiff's ability to convey a good fee-simple title to the lands in controversy is the only question submitted in this cause. Whether plaintiff is able to convey
such a title depends on the following facts set out in the agreed statement:
"John Swon, the original source of title, by item 8 of his last will and testament, executed September 5, 1904, and admitted to probate in the probate court of Callaway county, Mo., on June 20, 1905, provided as follows:
"`6. I will and devise to George E. Craig the following described land situated in Callaway county, Missouri, to wit: [Here follows a description of the land.] To be held by him in trust for the use and benefit of my daughter, Alma May Buckner, so long as she may live, with the right in my said daughter to use and enjoy the rents, profits and issues thereof and to occupy the same during her natural life, and upon her death it shall be the duty of the trustee to convey by special deed in fee simple the real estate herein devised to the bodily heirs of my said daughter, and in case she dies without leaving any bodily heirs, then to my other heirs.' (Italics are ours.)
"After the death of the said John Swon, to wit, at the December, 1905, term of the circuit court of Callaway county, Mo., Alma May Buckner and Frank Buckner, her husband, filed a certain suit against Polly A. Swon, John E. Swon, Ella S. Burnham, Georgia Belle Swon, Hortense Buckner, and Joseph S. Buckner, minors, and George E. Craig, the said George E. Craig being the trustee named under the last will and testament of John Swon, deceased. The Hortense Buckner and Joseph S. Buckner, named as defendants in said suit, were then, and are now, the only children of the said Alma May Buckner. All parties defendant in said suit were properly served with process and brought into court, and all children, the devisees named in the last will and testament of John Swon, were parties to said suit. Afterwards, George E. Craig having refused to qualify as trustee under said will of the said John Swon, one Paris B. Bartley qualified as such trustee, was duly summoned and brought into court in said cause, and filed his answer to the petition. A guardian ad litem was duly appointed for the minor defendants, Hortense Buckner and Joseph S. Buckner, and he duly answered for said minor defendants. All other parties to said suit were adults.
"At the May term, 1906, of the circuit court of Callaway county, Mo., a decree was entered in said cause vesting title in plaintiff. The land was improperly described in this decree, but at the December term, 1919, of said court, upon motion made for a nunc pro tunc order, a judgment was entered correcting said mistake and misdescription. The original decree and the judgment correcting the description of the land are both contained in and made a part of the agreed statement of facts. By this decree, so corrected as aforesaid, the court adjudged and decreed that Alma May Buckner had an absolute title to the land in controversy, free of limitations placed upon it by item 6 of the last will and testament of John Swon, deceased. Plaintiff in pending suit is the immediate grantor of the said Alma May Buckner, and if, under the agreed statement of fact, the said Alma May Buckner had a fee simple to the land in controversy, then the plaintiff in this suit has a like title to same, and under the agreed statement is entitled to a decree for the specific performance of the contract entered into between the plaintiff and the defendants. There is no question but that the circuit court of Callaway county, Mo., had jurisdiction of the parties and the subject-matter in the suit of Alma May Buckner and Frank Buckner, Her Husband, v. Polly A. Swon et al. The force and effect of the judgment and decree rendered and entered in that suit will settle and determine the question in controversy in the pending cause. No appeal was taken from the judgment and decree rendered in 1906, and corrected as to the description of the land in 1919, and said judgment and decree now stand in full force and with whatever effect they are entitled under the law. Plaintiff's contention is that this judgment and decree are conclusive against all possible remaindermen mentioned in the last will and testament of John Swon, and that said judgment and decree vested the fee-simple title in Alma May Buckner, and that plaintiff, grantee, has and can convey a fee-simple title. Defendants contend that said judgment and decree were not binding on the unborn contingent remainderman, that the then living grandchildren of John Swon who were not defendants in that suit were precluded by such judgment and decree, and that, if said judgment were obtained through fraud in the procurement, then it is subject to attack by any contingent remainderman, whether parties to the suit or not; that Alma May Buckner had only a life estate in the land in the controversy, and that therefore plaintiff, as her immediate grantee, does not own and cannot convey to the defendants a fee simple to the land.
"It is apparent—must be conceded—that the case of Alma May Buckner and Frank Buckner v. Polly A. Swon et al. cannot be retried in the pending case. There does not appear in the agreed statement of fact any evidence of fraud in the procurement of the judgment and decree. On the contrary, the agreed statement shows that all of the devisees mentioned in John Swon's will were duly and properly brought into court. This judgment and decree could only be set aside for fraud in a direct proceeding instituted for that purpose, and it is not subject to the collateral attack now made against it by defendants. The question of fraud, if any, in the procurement of that judgment and decree is not in this case.
"The question for determination in this case is thus stated in the brief of counsel for defendant: `Admitting for the sake of argument that the suit for specific performance herein was not tainted with fraud and collusion, the unborn contingent remaindermen were not barred by that judgment because they were not parties to that suit, and the grandchildren of the testator, other than the Buckner children, were not parties to the suit, although some of them were then living and should have been made parties.'
"In 23 Cyc. p. 1245, the rule is stated as follows: `Persons having a remote, contingent, or expectant interest in realty are bound by the judgment rendered in an action concerning the property, although not made parties to the suit, if the holder of the first estate of inheritance is a party, as he represents them. And estates limited over to persons not in esse are represented by the living owner of the first estate of inheritance, so that a decree in a suit to which the first holder, a
living person, is made a party, will conclude the rights of after-born remaindermen.'
"And in the same volume, at page 1253, this rule is laid down: `A judgment is conclusive and binding, not only upon the parties to the action in which it was rendered, but also upon persons who are in privity with them in respect to the subject-matter of the litigation.'
