In a suit by a widow in a court of the state of which she is a
citizen seeking to have dower assigned to her in land within the
state conveyed by her husband to A, a citizen of another state, and
by the latter conveyed to a corporation created under the laws of
the state in which the land lies, to which suit A is made party
defendant, there is no separable controversy (if there be any
controversy at all) as to A, which warrants its removal to a
circuit court of the United States.
A petition for removal filed after the case has been heard on
demurrer on the ground that the bill does not state facts
sufficient to entitle the complainant to the relief prayed for, and
after a decree sustaining the demurrer, is too late.
This was an appeal from a decree overruling a motion to remand
the cause to the state court from whence it had been removed, and
from the final decree in the cause. This Court disposed of the case
only on the first issue. The case is stated in the opinion.
Page 121 U. S. 180
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This is a suit begun by Vesta Laidly, a citizen of West
Virginia, the widow of Albert Laidly, deceased, on the 20th of
December, 1881, in the Circuit Court of Cabell County, West
Virginia, against C. P. Huntington and Elizabeth Huntington, his
wife, citizens of New York, and the Central Land Company, a West
Virginia corporation, for an assignment of dower in certain land in
that county conveyed by and for Albert Laidly to C. P. Huntington,
and afterwards by Huntington, during the life of Laidly, to the
land company, in whose possession it was, under that conveyance,
when the suit was begun. The prayer of the bill is 1, for an
assignment in money, to be estimated according to the valuation of
the land at the time of the alienation, or, if that cannot be done,
then 2, in land. Attached to the bill as exhibits are copies of the
deeds under which the conveyances were made to Huntington, two of
which purport to have been executed by Laidly and his wife and a
third by another person who held title for Laidly. In addition to
these exhibits, there is a copy of the deed by Huntington and wife
which purports to convey all the land to the land company.
To this bill a joint demurrer was filed by Huntington and wife,
May 22, 1882, and a separate demurrer by the land company. The
ground of each demurrer is that the bill is not sufficient in law.
On the 26th of the same month of May, these demurrers were argued
and overruled by the court, "but without deciding upon the
sufficiency of the acknowledgments to the several exhibits filed
with the bill." Thereupon Mrs. Laidly moved the court to dismiss
the suit as to Huntington and wife, to which they objected. This
motion was argued on both sides and submitted, but, before a
decision was reached, Huntington and wife presented their petition
for the removal of the suit to the District Court of the United
States for the District of West Virginia, sitting in Charleston,
having circuit court powers, on the ground
"that there is a controversy in
Page 121 U. S. 181
said suit which is wholly between citizens of different states,
namely, between your petitioners, who are defendants in said suit,
and the plaintiff."
After the presentation of this petition, the suit was docketed
in the district court upon an order to that effect made by that
court, November 1, 1882. On the 8th of November, Mrs. Laidly moved
that it be remanded, and this motion was denied November 11th.
Thereupon the defendants moved for leave to reargue the demurrer,
and this motion was granted. On the 10th of May, 1883, the court
refused Mrs. Laidly leave to dismiss the suit as to the
Huntingtons, overruled the demurrers, and dismissed the bill. From
that decree this appeal was taken. The grounds now relied on for
reversal are 1, the refusal to remand, and 2, the overruling of the
demurrers and the dismissal of the bill.
The district court was clearly in error in refusing to remand.
There is no separable controversy in the suit, and Mrs. Laidly, the
plaintiff, was, when the suit was begun, a citizen of West
Virginia, and the land company, one of the defendants, a West
Virginia corporation, and in law a citizen of the same state. As
the legal title to the land was in the land company at the time of
the death of Albert Laidly and at the time of the commencement of
the suit, the company was an indispensable party, it is difficult
to see how Huntington and wife were even proper parties, for,
according to the bill, they had parted with their interest in the
land during the life of the husband of Mrs. Laidly, and there is
nothing whatever to indicate that when the suit was brought, they
had any claim whatever to the property. The whole controversy in
the case, as we infer from the argument here, is as to the
sufficiency of the acknowledgments by Mrs. Laidly of the deeds to
Huntington, which she signed and sealed with her husband, to bar
her dower. Thayer v. Life Association, 112 U.
The petition was also filed too late, for it was after the case
had been heard on a demurrer to the bill because it did not state
facts sufficient to entitle the complainant to the relief prayed
for, and the demurrer sustained. Alley v. Nott,
111 U. S. 472
Page 121 U. S. 182
The decree is reversed on the single ground that the suit should
have been remanded to the state court, and, without passing on any
of the other questions involved, the cause is remitted to the
district court with instructions to send it back to the state court
as a suit which had been improperly removed, and of which the
district court had no jurisdiction.