A bill for the assignment of dower brought in a state court
alleged that A, one of the defendants, in purchasing the property,
acted as agent and trustee of B, and took and held title to the
joint use and benefit of himself and B. The complainant and B were
citizens of the same state; A was a citizen of a different state.
The answers took no notice of these allegations.
Held that
the petition of A to remove the cause to the Circuit Court of the
United States should be denied, as B was a necessary party to the
suit.
The right to take steps for the removal of a cause to a circuit
court of the United States on the ground of a separable controversy
is confined to the parties actually interested in such
controversy.
After removal of a bill in equity from a state court to a
circuit court of the United States on motion of one of the
respondents, the complainant filed a cross-bill alleging that a
judgment, obtained in the circuit court in a suit in which she was
not a party, after the removal, had been obtained collusively and
did not conclude her.
Held that this presented no reason
why the cause, having been improperly removed, should not be
remanded.
The case is stated in the opinion of the Court.
MR. CHIEF JUSTICE delivered the opinion of the Court.
This is an appeal under ยง 5 of the Act of March 3, 1875,
Page 117 U. S. 341
18 Stat. 470, c. 137, from an order of the circuit court
remanding a suit which had been removed from a state court. The
suit was brought in the Superior Court of Cook County on the 4th of
April, 1881, by Martha A. Walker, widow of Martin O. Walker,
deceased, a citizen of Illinois, against, George C. Rand, Jr.,
Charles E. Brown, Thomas Brown, and Henry G. Tucker, citizens of
New York, and John W. Doane, Samuel Otis Walker, Edward Stone
Walker, Augustus L. Chetlain, and Charles Fargo, citizens of
Illinois, for an assignment of dower in certain lots in Chicago.
The bill charges that Martin O. Walker died on the 28th of May,
1874, seized of the lots described, and leaving Martha A. Walker,
his widow, and the defendants Walker, his sole heirs at law; that
on the 1st of August, 1874, Mrs. Walker, the widow, demanded of the
heirs an assignment of her dower, which was refused; that in the
beginning of the year 1875, the heirs conveyed the property to the
defendant Fargo, who went into possession, and also refused to
assign dower, although requested; that the defendant Chetlain was
administrator of the estate of the decedent, and that he, in 1878,
as such administrator, sold and conveyed the property to the
defendant Rand. The bill then proceeds as follows:
"And your oratrix charges, on information and belief and avers
the fact to be that said Rand, in making said purchase, acted in
part as the agent and trustee of one John W. Doane, and took and
held the title to said premises to and for the joint use and
benefit of himself and of the said Doane, and your oratrix shows
that ever since said last-mentioned conveyance, said Rand and Doane
have entered into and enjoyed the possession of said premises, but
that said Doane and Rand, though often requested, have ever since
taking possession of said premises wholly neglected and refused to
set off and apportion to your oratrix her dower therein, by reason
whereof the said Doane and Rand became and still are liable to your
oratrix for damages for the detention of her dower in said premises
since said second day of November, A.D. 1878."
"And your oratrix further shows that on or about the said second
day of November, A.D. 1878, said Fargo conveyed said
Page 117 U. S. 342
premises to Carrie Walker, wife of said Samuel O. Walker, and on
said last-mentioned day, and as part of the same transaction, said
Carrie Walker and Samuel O. Walker conveyed said premises to said
Rand, as your oratrix charges in part, in trust for said Doane, and
that said Doane and Rand now hold said premises free from all
encumbrance, except the estate of dower of your oratrix
therein."
"And your oratrix insists that the said Samuel O. Walker and
Edward S. Walker are liable unto your oratrix in damages for the
detention of her dower in said premises from the time she demanded
of them that her dower be set off in said premises until they
conveyed said premises to said Fargo, to-wit, the first day of
January, A.D. 1876, and that said Fargo is liable to your oratrix
in damages for the detention of her said dower from said
last-mentioned day till the second day of November, A.D. 1878, and
that said Doane and Rand are liable to your oratrix for damages for
the like detention of her said dower rights in said premises from
said second day of November, A.D. 1878."
It is then stated that the premises were subject to the lien of
a deed of trust made to Charles E. Brown, in favor of Chauncey
Tucker, now deceased, Henry G. Tucker, and Thomas Brown, but it is
alleged that, for reasons set forth, this lien is no longer a
charge on the property as against the dower which is claimed.
The defendants Brown and Tucker answered the bill on the 20th of
June, 1881, denying the allegation that their deed of trust had in
any manner been discharged as a lien on the property superior to
the dower of Mrs. Walker. On the 26th of August, 1881, the
defendants Doane and Rand filed a joint general demurrer to the
bill. Separate demurrers of the same character were filed on the
same day by the defendants, the Walkers, Chetlain, and Fargo. On
the 5th of December, 1881, the demurrer of Rand and Doane was
withdrawn, those of the Walkers overruled, and that of Fargo
sustained, with leave to Mrs. Walker to amend her bill in ten days,
which she did. Demurrers to the amended bill were filed by Chetlain
and the defendants Walker, December 21, 1881. These demurrers
Page 117 U. S. 343
were overruled February 1, 1882, and on the 10th of the same
month, answers were filed by the Browns and Tucker, by Fargo, by
Edward Stone Walker, by Samuel Otis Walker, by Chetlain, and by
Rand and Doane. In the answer of Rand and Doane, which was joint,
reasons were given why dower had not been assigned, but the
conveyances to Rand as charged in the bill were admitted. While in
the answer it is stated that Rand alone holds the legal title under
that conveyance, no reference whatever is made to the allegation in
the bill that this title is held for the joint account of Rand and
Doane, and that the premises had been since the conveyances in
their joint possession.
On the same day that this answer was filed, Rand presented his
petition to the court for a removal of the suit to the circuit
court of the United States. This petition set forth the citizenship
of Mrs. Walker, Rand, the Browns, and Tucker at the time of the
commencement of the suit and at the time of the presentation of the
petition, the same as is above stated; that the petitioner alone
held the legal title to the property, and that
"in said suit there is a controversy which is wholly between
citizens of different states, and which can be fully determined as
between them, to-wit, a controversy between said Martha A. Walker,
and your petitioner and the said Thomas Brown, Charles E. Brown,
and Henry G. Tucker."
The state court thereupon made an order transferring the cause
to the circuit court of the United States. A copy of the record was
entered in due time in the circuit court, whereupon a motion to
remand was made by Mrs. Walker, and denied by the court, but
afterwards, on the 8th of June, 1885, after the cause had been
argued at the final hearing, it was remanded. The evidence showed
clearly that Doane had a substantial interest in the property under
the title held by Rand. From the order to remand this appeal was
taken.
Upon the argument here two positions were taken in support of
the order appealed from, to-wit:
1. That the petition for removal was not presented in time,
and
2. That Rand had no controversy in the case to which Doane was
not a necessary party.
Page 117 U. S. 344
Without considering whether, under the circumstances of this
case, the order to remand could be sustained at the time it was
made on the first of these grounds, we are entirely satisfied it
was properly granted under the second. The suit is for an
assignment of dower in lots, the legal title to which is, according
to the pleadings and the evidence, in Rand for the joint use and
benefit of himself and Doane. Rand and Doane are also, as is
alleged on the one side and not denied on the other, in joint
possession, and the prayer of the bill is for a decree against them
jointly for damages on this account as well as for the assignment
of dower.
It is claimed, however, that, as Rand holds the legal title,
Doane is an unnecessary and merely nominal party, because his
interests are represented, for all the purposes of the suit, by
Rand as his trustee. It is certainly true, as was said in
Kerrison v. Stewart, 93 U. S. 160,
that
"Under some circumstances, a trustee may represent his
beneficiaries in all things relating to their common interest in
the trust property. He may be invested with such powers and
subjected to such obligations that those for whom he holds will be
bound by what is done against him, as well as by what is done by
him. The difficulty lies in ascertaining whether he occupies such a
position, not in determining its effect if he does. If he has been
made such a representative, it is well settled that his
beneficiaries are not necessary parties to a suit by him against a
stranger to enforce the trust, or to one by a stranger against him
to defeat it in whole or in part."
But this case has nothing in the pleadings or elsewhere to show
that Rand was authorized to represent Doane in respect to the
property any more than one tenant in common represents another.
Having a legal title, a judgment against him in favor of one not
chargeable with notice of Doane's equity might bind Doane as well
as Rand; but here there is the notice, and the bill has been
brought against both Rand and Doane on that account. So far as this
suit is concerned, Doane is just as much a necessary party as he
would be if the deeds under which Rand holds had in express terms
provided that the conveyances were made for the joint use and
benefit of the two, and certainly under those
Page 117 U. S. 345
circumstances, especially if the two were in actual possession,
Doane would be as necessary a party as he would be if both the
legal and the equitable title were in him. As the suit now stands,
it is, so far as Rand and Doane alone are concerned, by a citizen
of Illinois against one defendant, a citizen of Illinois, and
another defendant, a citizen of New York, to obtain an assignment
of dower in property owned by the two defendants jointly, and in
which they have a common interest. Both defendants are necessary
parties, and consequently there cannot be a removal by one alone,
because the controversy is not separable, nor by the two together,
because as to them there is not the necessary citizenship.
It is argued, however, that the order to remand ought not to
have been granted, because the bill shows there is in the suit a
separable controversy between Mrs. Walker and the parties
interested in the deed of trust to Charles E. Brown, trustee, in
which the citizenship necessary for a removal exists. As to this,
it is sufficient to say that neither of the parties to this
controversy, if it be separable -- a question which we do not
decide -- have petitioned for removal, and the right to remove a
suit on the ground of a separable controversy is, by the statute,
confined to the parties "actually interested in such
controversy."
After the suit got into the circuit court, a supplemental bill
was filed by Mrs. Walker in which she alleged that a certain
judgment, which had been obtained in the circuit court of the
United States after the removal in a suit to which she was not a
party, had been obtained by collusion between the parties thereto,
and did not conclude her upon certain questions arising under the
deed of trust to Brown. This, it is claimed, gave the circuit court
jurisdiction independent of any question of removal, on the ground
that thereafter the suit was one arising under the Constitution and
laws of the United States within the meaning of the act of 1875. To
this we cannot agree. The effort of Mrs. Walker is not to avoid the
judgment as between the parties, but to show that, as to her, she
not being a party, it has no effect. This raises no question under
the authority of the United States.
The order remanding the case is
Affirmed.