JrfITOwu.L MITOHELL
V.
TILLOTSON.
787
TILLOTSON and others.
(Circuit Court, S. D. Illinois.. July 7,1882.1 REMOVAL OF CAUSE-NECESSARY PARTIEB-CO:NTROVERSY TO BE FULLY !lINED.
Where one of two necessary party defendants is a citizen of the same stat. With the complainant, and there is no separable controversy between the'com plainant and the other defendant, citizen of another state, which can determined as between them without the presence of defendant who is a Oitizen of the same state with the complainant, the federal court has no juris diction.
HARLAN, Justice, (orally.) This suit in equity was commenced in the circuit of McLean county, Illinois, and was thence removed. upon the the petition of Tillotson and the insurance company, to the circuit court of the United States for the southern district of Illinois. The complainant moved to remand the cause to the state court, upon the gronnd that it was not removable under the statutes regulating tho jurisdiction of the courts of the United States. The complainant is, and was at the commencement of the suit, a citizen of Illinois, al! were also the defendants Tillotson and Winegardner. The insurance company, the remaining defendant, is a corporation created by the laws of Massachusetts. The facts bearing u.pon the question of juris diction are these: Winegardner having borrowed of the insurance com pany the sum of $3,500, (for which· he gllove his bond, or note, witb interest coupons attached,) executed a deed of trust conveying to Til· lotson two lots, or parcels of land, in Bloomington, lllinois, in trust to secure the repayment of the amount so borrowed. The deed provided that in case of default in the payment of the bond, or of any interest coupon at maturity, the principal should become due, and the trustee should, upon the. application of the legal holder of the bond, after hav ing advertised for 30 days in a public newspaper in McLean county, sell the premises, and all the right, title, and equity of redemption and homestead of Winegardner, to the highest bidder, for cash, execute to the purchaser a conveyance in fee for the premises so sold, and applJ the proceeds to the mortgage debt. A default in paying interest having occurred, the trustee, in conformity with the demand of the company, advertised the property for sale. The present suit was brought by Mrs. Mitchell, for the purpose of enjoining the sale of one of the lots. Her suit proceeds upon the ground that the lot in question is her separate property, and that whatever rights were acquired in or to v.12,no.9-47
788
"FEDERAL REPORTB8.
that lot by Tillotson or the iIi.surance company under the beforementioned deed Qf trust are subordinate and inferior to hers. Held, that the citizenship of Winegardner seems to be immaterial, since his title appears 'from the pleadings to have passed absolutely either to complainant, or, under the deed of trust, to Tillotson. He interest in the result of the present controversy. But. TUlotson ,acquired auch interest in the prpperty as ml1 kes him an indispens3Jble party, defendant with the company. The complainant could not obtain the relief asked without joining him as a ,defendant with the 'thaurance In other words, there is In the suit no separable controversy between the complainant and the insurance company which ean be frilly determined as between them without the presence' 0fthe trustee as a party defendant. The trustee and the, company are inseparably'connected in resisting the relief sought·· It is therefore a material circumstance that Tillotson is a citizen of the. same state with the complainant. That fact defeats the jurisdiction of the federal court, and the cause must be remanded to tM state court. Coal 00. v. Blatchford, 11 Wall.:, 172; Sewing-machine Cl1$es, 18 Wall, 5; Ribon v. Railroad Co. 16 Wall. 446; Knapp v. Railroad, 20 Wall.IBO; Gardner v. Brown, 21 Wall. 36;' The Removal Cases,IOO U. S. 457; Barney v. Latham, 103 U. S. 205; Evans v. Faxon, 10 FED. REP. 312; Blake v. McKims, 103 U. S. 339. In the' case last cited it was said: " We are of opinion t hat congress; in determining the jurisdiction of the circuit court over controversies between citizens ot the different states, has not distinctly provided for the removal from a state court of a suit in which there citizens of different states, and to the full is a controversy not whollY or final determination ,of which one of the indispensable parties, plaintiffs or defendants, on the side seeking the removal, is a citizen of the same state with one or more of the plaintiffs or defendants against whom the removal is asked."
The cause must be remanded to the state court. It is so ordered. It is proper to say that in w;hat I have said the circuit judge and the district judge concur. .
BEAN V. PATTERSON.
BEAN
and others
and others.
(Okcu4t Oourt, W. D. Mi8souri, W;D. October Term,'1881.) bSOLvENT DEBTOR-PREFERENCE TO (''REDITOnS. ,
The creditors of a contractor in failing circmhstances agreed together to buy his land, and to be 'interested therein in proportion to their several claims, and a deed therefor was made 9Y the debtor and his wife to two of the creditors for the parties interested:in the purchase; the purchase money to be made up of various items of indebtedness of the debtor to the parties interested in the purchase, who had, on their part, to remove the liens of two judgments, which judgments were not paid 011, but were assigned to the parties to be held for contingencies. Subsequently an attachment was. sued out against the land. Held, that the deed from the debtor and wife be set aside, and the deed of sale of the land to one of the defendants, under an assignment of the trust deed of the wife made to her for a debt due her by the husband, be set aside: and that the land attached be sold, and the fund applied, 1irst, to the payment of taxes; next, to the amounts of the judgments, with interest; next, the amount for which the deed of trust was assigned, with interest; and next, the complainants, the amount of their judgment, with interest-the difference between the amounts of the wife's trust deed and the amount fOI' which she assigned it to be reserved for further consideration.
In Equity. Botsford ct Williams and John P. Lewis, for complainants. Vories, Pike ct McKill{)p, for defendants. KREKEL, D. J. The bill in this case alleges that complainants in 1873 contracted with defendant William Miller for work to be done on a railroad then building, in Ohio; that during the years of, 1873 and 1874 work amounting to $16,000 was done under said contract; that on defendant failing to pay for same suit was instituted by plaintiffs in Atchison county, Missouri, and 13undry tracts of land out; that judgment for $14,276 attached by virtue of process was obtained in the suit; that exe.cution issued, and $3,257 and costs were collected thereunder; and that the remainder remains unpaid. The bill proceeds to allege further that on examination of the title the land attached, such as was not sold under the execu.tion spoken of was found to be encumbered by liens, namely, a deed of trust given in 1873 by William Miller, the defendant in the attachment suit, to Patterson, as trustee for his wife, Mary Miller, for $10,000, due in 1876, and a judgment lien of Koontz for $2,071, which encumbrances it is claimed were made and sought to be'maintained for the purpose of hindering and delaying the enforcement of liabilities of said William Miller, and specially the complainants, who instituted proceed. ings in the state courts to remove the clouds upon the title so asJ()