A suit in a state court for partition of land cannot be removed
into the circuit court of the United States under the Act of March
3, 1875, c. 137, § 2, by reason of a controversy between the
plaintiff and a citizen of another state, intervening and claiming
whatever may be set off to the plaintiff.
When, on appeal from a decree of the circuit court of the United
States upon the merits, it appears that the case had been
wrongfully removed from a state court on petition of the appellant,
the decree should be reversed for want of jurisdiction and the case
remanded to the circuit court with directions to remand it to the
state court, and with costs against him in this Court and in the
circuit court.
This was a bill in equity, filed August 29, 1881, in the
Superior Court of Cook County, in the State of Illinois, by Joseph
T. Torrence against Susan M. Shedd, John B. Brown, and ninety
others, for partition of a tract of land in that county, to an
undivided third of which the plaintiff claimed title under a deed
from Edward Sorin. Brown and twenty
Page 144 U. S. 528
others were not served with process. Most of the other
defendants appeared and answered, denying the plaintiff's title and
claiming title in themselves to the whole in separate shares.
A decree of the superior court dismissing the bill was reversed
on appeal by the Supreme Court of Illinois, and the case remanded
to the superior court for further proceedings. 112 Ill. 466.
Afterwards, on May 5, 1885, Sorin was allowed, against the
plaintiff's objection, to intervene and to file an answer and
cross-bill admitting his deed to the plaintiff but alleging that it
was only in trust for Sorin, and that the plaintiff, in violation
of the trust, had refused to reconvey the land to Sorin, and had
agreed to convey it to Brown, and claiming an equitable title in
whatever should be set off to the plaintiff. The plaintiff and
Brown demurred to the cross-bill, and others of the defendants
answered that bill, alleging that they were strangers to the
controversy between the plaintiff and Sorin and denying the title
of both.
On May 18, 1885, the plaintiff and Brown filed a petition under
the Act of March 3, 1875, c. 137, § 2, for the removal of the case
into the circuit court of the United States, alleging that by
reason of Sorin's intervention and appearance, answer, and
cross-bill, a separate controversy was presented between citizens
of different states, which could be fully determined as between
them in that court, and in which the matter in dispute exceeded
$500 in value, and that at the time of filing the petition for
removal, and for five years before, the petitioners were citizens
of Illinois, and Sorin was a citizen of Indiana, and none of the
other defendants was a citizen of Indiana or had any interest in
this controversy.
The case was thereupon removed into the circuit court of the
United States, which sustained the demurrer to Sorin's cross-bill
and dismissed that bill and referred the case to a master, who
filed his report on July 3, 1886.
On December 2, 1886, the plaintiff filed a stipulation between
himself and Brown and Sorin, which was as follows:
"It is hereby stipulated between Joseph T. Torrence,
complainant, and John B. Brown, one of the defendants, and
Page 144 U. S. 529
Edward Sorin, also a defendant in the above-entitled cause, that
said Edward Sorin is entitled to a lien to the extent of $400 per
acre upon each and every acre of land which said complainant,
Torrence, may recover in the above-entitled cause, and in any
decree which may be entered therein the court many recognize and
declare and make all necessary orders to enforce such lien. And the
said defendant Edward Sorin withdraws all allegations contained in
his answer in said cause filed, and all claim that the conveyance
made by said Sorin to said Torrence, in said answer mentioned, was
executed to convey the said title to said Torrence to be held by
him in trust for said Sorin, and not as an absolute conveyance of
said land, and further, he withdraws and renounces any and all
claims against and upon said land other than for a lien to secure
the purchase money of four hundred dollars per acre for the amount
of land which may be recovered by said Torrence."
On the same day, the plaintiff filed a motion to remand the
cause to the state court on the ground that
"by reason of said stipulation, there no longer exists in the
said cause any controversy, separable or otherwise, as between the
said complainant and said Edward Sorin, cross-complainant therein
and defendant to the said original bill, and that by reason
thereof, this Court can no longer have any jurisdiction of said
cause."
The circuit court denied the motion to remand and, after a
hearing on pleadings and proofs, entered a final decree dismissing
the bill. The plaintiff appealed to this Court.
MR. JUSTICE GRAY, after stating the case as above, delivered the
opinion of the Court.
The first question to be considered is whether the circuit court
of the United States rightly exercised jurisdiction to hear and
decide this case.
Page 144 U. S. 530
This question depends upon the Act of March 3, 1875, c. 137,
which was in force at the time of the removal into that court, and
of the refusal to remand to the state court.
By section 2 of that act as heretofore construed by this Court,
whenever in any suit of a civil nature in a state court where the
matter in dispute exceeds the sum or value of $500, "there shall be
a controversy which is wholly between citizens of different states,
and which can be fully determined as between them," anyone of those
interested in that controversy many remove the whole case into the
circuit court of the United States. 18 Stat. 470, 471;
Barney
v. Latham, 103 U. S. 205;
Brooks v. Clark, 119 U. S. 502.
But in order to justify such removal on the ground of a separate
controversy between citizens of different states, there must, by
the very terms of the statute, be a controversy "which can be fully
determined as between them," and, by the settled construction of
this section, the whole subject matter of the suit must be capable
of being finally determined as between them and complete relief
afforded as to the separate cause of action without the presence of
others originally made parties to the suit.
Hyde v. Ruble,
104 U. S. 407;
Corbin v. Van Brunt, 105 U. S. 576;
Fraser v. Jennison, 106 U. S. 101;
Winchester v. Loud, 108 U. S. 130;
Shainwald v. Lewis, 108 U. S. 158;
Ayres v. Wiswall, 112 U. S. 187;
Fidelity Ins. Co. v. Huntington, 117 U.
S. 280;
Graves v. Corbin, 132 U.
S. 571;
Brown v. Trousdale, 138 U.
S. 389.
As this Court has repeatedly affirmed, not only in cases of
joint contracts, but in actions for torts which might have been
brought against all or against anyone of the defendants,
"separate answers by the several defendants sued on joint causes
of action many present different questions for determination, but
they do not necessarily divide the suit in to separate
controversies. A defendant has no right to say that an action shall
be several which a plaintiff elects to make joint. A separate
defense may defeat a joint recovery, but it cannot deprive a
plaintiff of his right to prosecute his own suit to final
determination in his own way. The cause of action is the subject
matter of the controversy, and that is for all the
Page 144 U. S. 531
purposes of the suit, whatever the plaintiff declares it to be
in his pleadings."
Louisville & Nashville Railroad v. Ide,
114 U. S. 52,
114 U. S. 56;
Pirie v. Tvedt, 115 U. S. 41,
115 U. S. 43;
Sloane v. Anderson, 117 U. S. 275;
Little v. Giles, 118 U. S. 596,
118 U. S.
601-602;
Thorn Wire Hedge Co. v. Fuller,
122 U. S. 535.
In
Shainwald v. Lewis, above cited, which was a suit
brought by one partner for a settlement of the partnership affairs,
a judgment creditor of the defendant and a receiver appointed in a
suit upon the judgment were admitted as defendants, and it was held
that there was no separable controversy between them and the
plaintiff which would entitle them to remove the case, the Court
saying:
"The suit was brought to close up the affairs of an alleged
partnership. The main dispute is about the existence of the
partnership. All the other questions in the case are dependent on
that. If the partnership is established, the rights of the
defendants are to be settled in one way; if not, in another. There
is no controversy in the case now which can be separated from that
about the partnership, and fully determined by itself."
108 U.S.
108 U. S. 161.
Accordingly, in a suit by a judgment creditor to have the
property of his debtor sold and applied to the payment of his debt
after satisfying prior encumbrances thereon, the holders of which
are made defendants, it has more than once been decided that there
is no such separate controversy between the plaintiff and the
holder of such an encumbrance as will justify a removal, and this
for the following reasons: there is but a single cause of action,
the equitable execution of a judgment against the property of the
judgment debtor, and this cause of action is not divisible. The
judgment sought against the encumbrancer is incidental to the main
purpose of the suit, and the fact that this incident relates to him
alone does not separate this part of the controversy from the rest
of the action. What the plaintiff wants is not partial relief,
settling his rights in the property as against this defendant
alone, but a complete decree which will give him a sale of the
entire property, free of all encumbrances, and a division of the
proceeds as the adjusted equities of each and all the
Page 144 U. S. 532
parties shall require. The answer of this defendant shows the
questions that will arise under this branch of the one controversy,
but it does not create another controversy. The remedy which the
plaintiff seeks requires the presence of all the defendants, and
the settlement not of one only, but of all the branches of the
case.
Fidelity Ins. Co. v Huntington, 117 U.
S. 280;
Graves v. Corbin, 132 U.
S. 571,
132 U. S.
588.
The present suit was a bill for partition of lands in Illinois,
the principal object of which was to assign to all the tenants in
common their shares in severalty. By the law of Illinois, indeed,
the court might, in the suit for partition, determine all questions
of conflicting or controverted titles, to the whole land or to any
share thereof. But the determination of such questions of title was
incidental to the main object of the suit, and in order to do
complete justice between all the parties and avoid further
litigation. Ill.Rev.Stat. (ed. 1880) c. 106, §§ 1, 39;
Henrichsen v. Hodgen, 67 Ill. 179;
Labadie v.
Hewitt, 85 Ill. 341;
Gage v. Lightburn, 93 Ill.
248.
The object of the suit was not merely the establishment of the
title of the plaintiff in an undivided share of the land, but it
was the partition of the whole land and the conversion of his
undivided share into an entire estate in a proportional part, as
well as the establishment of his title against all the defendants.
The controversy between the plaintiff and Brown and Sorin related
only to the title claimed by the plaintiff in an undivided share;
Sorin's whole claim was of an equitable estate in whatever should
be set off to the plaintiff, and the other defendants denied that
either the plaintiff or Brown or Sorin had any title whatever.
Neither of the three, therefore, could recover judgment setting off
to him any share in the land without establishing a title not only
as between themselves, but also as against all the other
defendants. The inevitable result is that the controversy of the
plaintiff and Brown with Sorin was merely incidental to the main
object of the suit, could not be determined as between them without
the presence of the other defendants, and did not constitute such a
separate controversy as would justify a removal into the circuit
court of the United States.
Page 144 U. S. 533
If the controversy between the plaintiff and Brown on the one
side and Sorin on the other had been such as to justify a removal,
there can be no doubt that, after that controversy had been
settled, as shown by the stipulation of the parties to it, the suit
no longer really involved a dispute or controversy properly within
the jurisdiction of the circuit court, and should therefore have
been remanded to the state court, under section 5 of the Act of
March 3, 1875, c. 137. 18 Stat. 472;
Robinson v. Anderson,
121 U. S. 522;
Texas Transportation Co. v. Seeligson, 122 U.
S. 519;
Graves v. Corbin, 132 U.
S. 571,
132 U. S.
590.
But it is unnecessary to dwell upon that view of the case,
because, for the reasons above stated, the original removal on the
petition of the appellant was wrongful, and therefore the judgment
must be reversed for want of jurisdiction, with costs against the
appellant, and the case remanded to the circuit court, with
directions to render a judgment against him for costs in that
court, and to remand the case to the state court.
Mansfield
&c. Railway v. Swan, 111 U. S. 379;
Graves v. Corbin, above cited.
Judgment reversed accordingly.
