1. Where the record shows that a suit brought in a state court
was, on the petition of the defendant and by reason of the
character of the parties, duly removed to the proper circuit court
of the United States, the jurisdiction of the latter court is not
lost for want of an averment of citizenship in the bill of
complaint originally filed or in the amendments thereto, which were
made in the circuit court.
2. The bill in this case prayed for a dissolution of the
partnership between the parties and a sale of certain lands by them
held as tenants in common, which, it was alleged, were not
susceptible of division without prejudice to them. There was no
demurrer to the bill, nor did the answer raise any objection to the
1. That as the allegations of the bill touching the lands
conform to the provision of the Code of California and are
sustained by the proofs, the decree below awarding partition was
2. That if there is anything in the allegations which concern
the partnership which introduces another matter, the objection
should have been taken by demurrer for multifariousness.
This action was commenced by the complainant, who is a citizen
of California, in the District Court of the Fifth Judicial District
for the County of San Joaquin in that state, but, upon the petition
of the defendants, who are citizens of France, the cause was
removed to the Circuit Court of the United States for the District
of California. After such removal, the complainant filed an amended
bill wherein he charged that about July, 1874, he and the
defendants entered into a copartnership for carrying on a hotel
business on the land known as the Calaveras Big Trees, which
consisted of two tracts, one
Page 95 U. S. 402
containing about eight hundred, and the other about seven
hundred and twenty acres; that the hotel was on one of the tracts;
that at the time of the formation of the partnership and during its
continuance, he and the defendants owned the land as tenants in
common, he having one undivided half, one of the defendants
three-eighths, and the other one-eighth thereof; that it was agreed
to use, as capital stock in said business, said land, hotel
&c.; that he was to have the sole and exclusive management of
the business; that he performed his agreement, but that the
defendants so conducted themselves in and about the management of
the business as to cause great loss to him and lessen the value of
said land and hotel. He further alleged that the situation of the
land and its connection with the hotel were such that it could not
be divided without great prejudice to the owners.
The bill did not allege that the partnership was for any
specified time or that there were debts, profits, or claims to
adjust or accounts to settle. It prayed for the appointment of a
receiver, the dissolution of the partnership, the winding up of its
affairs, and a sale of the property.
The answer admitted the partnership and the ownership of the
land as charged, but denied that the complainant was to have
exclusive management of the business and that he performed his
agreement. It also denied that they in any way misconducted
themselves and that the land could not be divided without
The land in question is that upon which grow the mammoth trees
of California. It consists of two different tracts, about six miles
apart. One, called the "Calaveras Big Tree Grove," is also known as
the "Mammoth Grove," and the other as the "South Park Grove." The
hotel is on the former tract, and the neighborhood is resorted to
for the purpose of seeing the trees and enjoying the climate and
the hunting and fishing.
The evidence chiefly related to the situation and character of
the property and the purposes for which it could be used and to the
question as to whether the place would support two hotels.
Upon the hearing, the court decreed the dissolution of the
partnership, the sale of the property, and the division of
Page 95 U. S. 403
the proceeds between the parties, in proportion to their
The defendants thereupon appealed to this Court, and assign for
1. That the bill shows no equity, and should be dismissed.
2. That the sale of the real property should not have been
ordered, because it was not partnership property, and, as there
were no debts to pay or claims to adjust, no useful purpose could
be subserved by a sale.
3. That the amended bill filed in the circuit court did not show
jurisdiction in that court.
MR. JUSTICE MILLER delivered the opinion of the Court.
The appellee, Sperry, brought suit in the state court for the
County of San Joaquin against the appellants, who duly appeared and
caused the suit to be removed into the Circuit Court of the United
States for the District of California. In that court, Sperry filed
an amended or new complaint.
One of the errors alleged as grounds for reversing the decree in
favor of Sperry is that this amended bill shows no jurisdiction in
the circuit court. If nothing else be looked at but the bill, there
is no jurisdiction shown. But the proceedings in the state court,
which are properly here as part of the record of the case, show
that it was removed from the state court to the federal court on
account of the citizenship of the parties, and this of itself must
have given jurisdiction to the United States Court before the
amended bill was filed. That jurisdiction is not lost because the
facts on which it arose are not set out in the old or the new
complaint. Railway Company v.
22 Wall. 322.
The appellants treat the bill as one for a dissolution of a
partnership, a settlement of the partnership affairs, a sale of the
partnership property, and a distribution of its proceeds. They
therefore insist that the decree of the court ordering a sale of
real estate of the estimated value of $40,000, which the parties
held as tenants in common and which, they insist,
Page 95 U. S. 404
was not partnership property, was erroneous and should be
reversed. On the other side, it is said that the real estate was
partnership property, and by the rules of chancery practice ought
to be sold on a decree for the dissolution of the partnership and
the proceeds divided, as in case of personalty, and it is argued
further that if they are mistaken in this view of the matter, the
complaint may be treated as a bill for partition, and that as a
partition in specie
could not be made without loss or
injury to the value of the property, it was rightfully decreed to
be sold and the money divided.
As we are clearly of opinion that the decree of the circuit
court can be sustained on this latter view, we need not inquire
whether, under all the circumstances, the real estate was subject
to the rules which in equity govern that kind of property when it
is bought and used for partnership purposes.
Supposing a bill to wind up a partnership and a bill to
partition real estate to be so distinct in character that a court
must hold it to be one or the other, we think the complaint before
us has all the necessary elements of the latter, and is as much
entitled to be called a suit for partition as for the dissolution
and winding up of a partnership.
It begins by describing the real estate and declaring that
plaintiff and defendants are now and have been tenants in common of
the lands since the month of July, 1874. It then alleges the
plaintiff to be the owner of an undivided half, the defendant, the
Marquis de Briges, of three-eighths, and the Marquise de Briges,
the other defendant, who, it seems, is his mother, of one-eighth.
It shows that the land consists of two separate parcels, which, by
the congressional subdivisions of which they consist, must be five
or six miles apart, and that one of them is a large tract, used as
a summer resort for visitors, and that the whole property is of the
value of about $40,000. It is also alleged that by reason of the
connection of the hotel with the lands -- the latter constituting
the Big Tree Groves of Calaveras -- a partition cannot be had
without seriously impairing the value of the property. Amongst
other relief prayed for is a sale of this property and a
distribution of the proceeds amongst the owners. Here seems to be
everything requisite for a suit in partition.
Page 95 U. S. 405
There is, however, in addition to this, an allegation that the
parties had been engaged in keeping this hotel in partnership, and
that a difference had arisen by the fault of the defendants which
made a dissolution of that partnership necessary, and this
dissolution is prayed for and a settlement of the accounts, and
another prayer of the bill is for a sale of the partnership
property and proper distribution.
The bill is inartificially drawn as a bill in chancery, but is
after the model of the Code of Procedure of California, which
justifies such a complaint in the courts of that state.
The stating part of it is accordingly divided into seven
paragraphs, and they are so numbered. If we are at liberty to
disregard the fifth and sixth paragraphs, which alone set out the
partnership and the grounds of dissolution, we have no difficulty
in finding a bill for partition, with prayer for a sale as a mode
of partition because it would be an injury to the interest of the
owners to divide it up.
As there was no demurrer to the bill, as the answer sets up no
objection to the jurisdiction, but denies that there is anything in
the condition of the land to forbid actual partition, we see no
reason why the bill may not be treated as sufficient for a
partition suit. If there is anything in the allegations which
concern the partnership which introduces another matter, the
objection should have been taken by demurrer for multifariousness.
It is not fatal to the bill on appeal.
The only question contested in the case on the evidence was
whether the land could be partitioned in kind without serious
detriment to the owners.
We are of opinion that the circuit court held properly that it
It consisted of about two thousand acres in two distinct parcels
of unequal value five or six miles apart. These two parcels
included all the now well known big trees of Calaveras, except a
few of that species too small to excite admiration or attract
These trees are ranked among the curiosities of the world, and
justly so. One of them, as the evidence shows, was twenty-five feet
in diameter when it was cut down, and took five men twenty-two days
to cut it down. Others still standing are thirty
Page 95 U. S. 406
feet in diameter. The place is visited by people from all parts
of the world to see these trees, and the hotel did a profitable
business for this reason. It is apparent that the joint ownership
of this property must make it far more valuable than it would be if
split up into small pieces held by persons who would become rivals
for the profits arising from visitors. Such also is the weight of
the testimony on that subject. It is argued that the two groves,
being five miles apart, a division with owelty to make it equal
might have been made into two parts. But these would still have
been rival and conflicting interests, each injuring the other.
Again, the inequality of the shares into which the property must
have been divided was a serious difficulty in the way of actual
partition. The three shares must have been an eighth,
three-eighths, and a half. And though this might have been overcome
by an offer of the mother and son to take their two shares as one,
no such offer was made, and the court had no power to compel them
to do so.
The owner of the one-eighth, if it had a pleasant site for a
hotel, would have been as well off in regard to the most valuable
use of the property as the owner of the one-half unless the latter
had adopted means for excluding the guests of the former, which is
at least of doubtful practicability unless at enormous expense.
Sec. 763 of the Code of Civil Procedure of California, c. 4,
tit. 10, concerning partition of real property, enacts:
"If it be alleged in the complaint and established by evidence,
or if it appear by the evidence without such allegation in the
complaint, to the satisfaction of the court, that partition cannot
be made without great prejudice to the owners, the court may order
a sale thereof."
Sect. 752 embodies the same principle.
The complainant in this case makes the necessary allegation, and
we think it is sustained by the proof.