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which includes the petition and the pleadings and proceedings down to that time, that the petitioner is entitled to a removal of the suit." Some of the decisions do not seem to have gone this far, yet they do authorize examination of the pleadings. In Barney v. Latham, 103 U. S. 205, 26 L. Ed. 514, the record was considered with relation to the pleadings as they stood when petition for removal was filed.
In Louisville & Railroad Co. v. Wangelin, 132 U. S. 601, 10 Sup. Ct. 203, 33 L. Ed. 473, the court said the question was to be determined by "the condition of the record in the state court at the time of the filing of the petition for removal, independently of the allegations in that petition or in the affidavit of the petitioner, unless the petitioner both alleges and proves that the defendants were wrongfully made joint defendants for the purpose of preventing a removal into the federal court." In Connell v. Smiley, 156 U. S. 337, 15 Sup. Ct. 353, 39 L. Ed. 443, complaint, answer, and complaint in intervention subsequently filed were regarded as proper to be considered by the Circuit Court. In the very recent decision of Alabama Southern Railway v. Thompson, 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441, the court said the question of removability "depends upon the state of the pleadings and the record at the time of the application for removal." It being the duty of the court, by the latest authority, to look into the record, including the petition, to ascertain whether jurisdiction exists, this condition appears: The Helena Power Transmission Company (plaintiff) alleged that the defendants Sanborn and wife, citizens of the state of Michigan, are the reputed owners of a certain tract of land sought to be condemned. One of the defendants, Spratt, appeared, and, in substance, pleaded that he was the real owner of the tract standing in the name of Sanborn; that he held the equitable title to the property. Thereafter Sanborn and wife appeared, not denying that the equitable title to the property is in Spratt, but alleging that the complaint alleged ownership in them, Sanborn and wife, and setting forth that a separate action could be maintained by plaintiff against them for condemnation without joining as defendants any of the other defendants, and that the same could be fully determined. We therefore have a record disclosing the fact that the equitable title and ownership are in defendant Spratt, a citizen of Montana, with the legal title in Sanborn and wife, citizens of Michigan. There is but one tract involved, with no separate or proportionate interests of each of said defendants in such tract. While the legal title would seem to be of slight consequence where real ownership and equitable title are in another, yet the holder of the legal title is a proper party to a proceeding in eminent domain. The plaintiff doubtless desires to settle all questions involved in this controversy, and to do so it wishes to determine the rights of every person having any interest in the tract sought to be taken, so that a judgment can be had which shall adjudicate their rights. The decree is made more effectual by this procedure, and to enable plaintiff to obtain the relief sought the holder of any legal interest should be brought in as a defendant. So Sanborn and wife are proper parties, rightly joined, and, the object of the suit being to condemn and appropriate to the use sought the single tract, with legal title in Sanborn and wife and
the equitable in Spratt, the controversy is over the condemnation of the whole No. 5 tract, and is not a separable one between petitioning defendant and plaintiff. Bellaire v. B. & O. R., 146 U. S. 117, 13 Sup. Ct. 16, 36 L. Ed. 910.
The case is not altogether unlike that of Seattle & M. Ry Co. v. State et al. (C. C.) 52 Fed. 594. That was a proceeding for condemnation brought by the Seattle & Montana Railway Company against the state of Washington, the Columbia & Puget Sound Railroad Company, Oregon Improvement Company, Farmers' Loan & Trust Company, Northern Pacific & Puget Sound Shore Railroad Company, the Northern Pacific Railroad Company, and King county to secure a right of way. The action was commenced in the state courts of Washington, and removed into the United States Circuit Court by the Northern Pacific & Puget Sound Shore Railroad Company, the Oregon Improvement Company, and Farmers' Loan & Trust Company. A motion to remand was made and granted. It appeared that the several defendants were joined because they respectively claimed interests in the premises. The state of Washington claimed to be the owner of the fee; King county claimed a lien on a portion of the premises for taxes; two of the railroads, corporations within the state of Washington, owned an interest in the property; the Oregon Improvement Company, an Oregon corporation, owned the stock of the Columbia & Puget Sound Company; the Farmers' Loan & Trust Company, a New York corporation, was a mortgagee; and the Northern Pacific Railroad Company appeared to have an interest in the property of the Northern Pacific & Puget Sound Shore Railroad Company. The Northern Pacific Railroad Company sought to remove on the ground that it was a corporation created by act of Congress. The Oregon Improvement Company and the Farmers' Loan and Trust Company claimed the right of removal because there was involved a separable controversy as to each, and that they were corporations of states other than Washington, of which the plaintiff was a citizen. Judge Hanford held that when a number of persons have been joined as defendants in an action, and the nature of the controversy does not appear upon the face of the record, the bare assertion in a petition for removal by one defendant that there is a separable controversy is not sufficient. He regarded the papers as showing sufficiently that the interests of the corporations seeking to remove were so blended with the interests of one of the local corporations that it would not be possible to determine any controversy affecting them without touching the interests of the local corporations. He rested his decision to remand, upon a distinct ground that reasons for removal did not appear to exist, as the record failed to show that there was any controversy involved in the case which could be maintained by either of the foreign corporations without the aid or support of the other defendants, and upon the further ground that the case did not appear to be one arising under the Constitution or laws of the United States.
City of Washington v. Columbus & C. M. R. Co. (C. C.) 53 Fed. 673, was a proceeding commenced in the state courts of Ohio by the city of Washington against the C. & C. M. R. Co. for the appropria
tion of a right of way for a street. Damages were awarded, and the defendant appealed. Thereafter the Baltimore & Ohio Railway Company and the Central Ohio Railway Company were made parties defendant, and the Baltimore & Ohio petitioned for a removal to the Circuit Court of the United States, which was granted. Judge Sage remanded the cause, relying upon the doctrine of City of Bellaire v. Baltimore & Ohio R. R. Co., supra, holding that in a suit by a city to condemn land occupied by a railroad corporation of another state as lessee of a railroad corporation of the same state, when the main issue is as to the right to condemn, the controversy as to the foreign corporation is not separate, so as to give it a right to remove the cause to a federal court, although the interests of the two defendants and their separate awards of damages must be determined as incidents to the principal controversy.
Sugar Creek, B. P. & P. C. R. Co. v. McKell et al. (C. C.) 75 Fed. 34, was decided upon a motion to remand to the state court. The suit was for condemnation between the applicant and several defendants, some of whom were citizens of the same state as the applicant. The petition disclosed that McKell, one of the defendants, was the only owner of the land, and that he held the title in fee. It was claimed that McKell and wife had executed a lease to one McDonald for a portion of the land proposed to be taken, with power and authority to organize a joint-stock company, to lease the land to said company when so formed. It appeared that McDonald organized under the laws of the state of West Virginia a colliery company, but there was no evidence of any lease to McDonald, or of a lease by McDonald to the company. McDonald and the company were regarded as only tenants at will of the defendant McKell to a very small portion of the land sought to be taken, while McKell was the owner of a large tract, a small portion of which the applicant desired to condemn, as well as a part of that portion leased by McKell to the company. It was held to be apparent that McKell, being the owner in fee to the whole tract, subject only to a lease for a small portion of it to the company, there was a separable controversy as between the applicant and McKell as to the land not leased by him to the company. In distinguishing the case Judge Jackson emphasized the fact that the applicant was seeking to condemn not only the land of McKell, who was a nonresident, but the land of the McDonald company, a citizen of the same state with the applicant. He decided that, as between McKell and the applicant, there was a separable controversy, which could be fully heard and determined in the Circuit Court of the United States. But it was regarded as a separable controversy, because McKell was the exclusive owner in fee of the large tract which was sought to be condemned for the purposes of the railroad, and as to that portion of the land not leased the codefendant had no interest in it. The motion to remand was overruled.
In Perkins v. Lake Superior & S. E. Ry. Co. (C. C.) 140 Fed. 906, the question presented was whether in a condemnation proceeding involving a number of distinct tracts of land in several ownerships there was a separable controversy between the owner in severalty of one tract and the corporation, or whether a single controversy existed be
tween the corporation on the one side and the owners in severalty of all the tracts described in the petition for condemnation. The court, through Judge Sanborn, held that the question of the right of the corporation to take the land should be regarded as presenting a single controversy, in which the railroad company was plaintiff, and all the owners of separate and distinct parcels whom it elected to join were defendants. The decision there turned upon the question of the right of the corporation to take the land desired, and Judge Sanborn was of the opinion that all the parties joined as defendants were jointly interested, and that the mere fact that the petitioners for removal were the owners in severalty of a part of the lots sought to be taken did not create a separable controversy between them and the railroad company. Although the case is favorable to one of the contentions of the plaintiff in the matter at bar, it is not directly to the point upon which I place my decision, inasmuch as Spratt and Sanborn and wife in this case are not owners in severalty of a part of the particular lot sought to be taken.
I need not question the accuracy of the proposition that a single condemnation proceeding, affecting distinct lots of land owned by several persons, presents several distinct controversies, any one of which, in a proper case, may be moved to a federal court independently of the rest. That I understand to be the general principle of the Pacific Railroad Removal Cases, 115 U. S. 2, 5 Sup. Ct. 1113, 29 L. Ed. 319, although it seems not to have been exactly applied in the case of Jarnecke Ditch (C. C.) 69 Fed. 161, and perhaps was not in Perkins v. Lake Superior et al., supra. Here, however, there is one defendant, a nonresident, who holds the legal title to the property involved, and another defendant, a resident, who holds the equitable title. My opinion is that there is no separable controversy as between the nonresident and the plaintiff, and I believe this view to be supported by recent authority.
I have examined the cases cited in the brief of counsel for defend
ants and many others by my independent search. While it is undoubtedly true that some of the opinions appear to accept as a rule without limitation that upon a motion to remand the court will look only into the plaintiff's complaint (Harley v. Insurance Company [C. C.] 125 Fed. 792), nevertheless the explicit language and the actual practice of the Supreme Court of the United States, as used and followed in their very latest opinions, certainly authorize the court to regard the record, including the petition for removal, except where removal is sought upon the ground that a federal question is involved, or the case is one specially provided for. When the discriminations in the rule are kept in mind, many of the cases are distinguishable.
It seems there can be no issue tried on the motion except where fraud or willful evasion is set up, but, where facts appearing in the record are not in conflict, they may be accepted as a basis for the consideration of the question of removability.
Following the recent cases, I therefore think this motion to remand must be granted.
In re J. F. GRANDY & SON.
Ex parte GRANDY.
(District Court, D. South Carolina. July 6, 1906.) BANKRUPTCY-EQUITABLE LIEN-AGREEMENT TO ASSIGN LIFE INSURANCE POLI
A husband, at a time when he was solvent, made a parol agreement to assign to his wife certain life insurance policies then held by him in consideration of her relinquishment of her dower interest in their residence, which he desired to transfer as security for a loan, and she made such relinquishment. The cash value of the policies was about the same as the value of her dower interest in the property, and the agreement was made in good faith, but through neglect the husband did not formally assign the policies until after he became insolvent, and within four months prior to his bankruptcy. Held, that the agreement gave the wife an equitable lien on the policies, and that the assignment should be upheld as against the husband's trustee in bankruptcy.
Cothran, Dean & Cothran, for the bankrupt.
E. M. Blythe, for the trustee.
BRAWLEY, District Judge. Messrs. J. F. Grandy & Son were contractors of high standing and good credit. In the summer of 1905 they were engaged upon a contract with the Federal Construction Company, from which large profits were expected, and which required them to raise considerable money, but in the autumn and early winter of 1905, owing to unlooked for contingencies, the particulars of which need not be here related, disasters overtook them, and, instead of realizing profits in their undertaking, they suffered such losses that by advice of counsel they filed their petition December 18, 1905, in voluntary bankruptcy, and on January 31, 1906, they were discharged. Certain legal questions arising out of the bankruptcy have been before me, and by universal testimony the conduct of both father and son has been upright and honorable throughout, and their failure is attributed to unmerited disasters, and not to any misconduct on their part. On August 10, 1905, J. F. Grandy borrowed from the City National Bank of Greenville $5,000, and to secure this money he had to sell his home, and he conveyed the same by deed to the bank, with the condition that the bank would reconvey the premises when he repaid the money. He had at that time two policies of life insurance, and in order to raise the money the bank required from his wife a renunciation of her dower. It was arranged between Grandy and his wife that she would renounce her dower if these policies were assigned to her, and he agreed to do so. No question is made as to the good faith of this transaction, and that the assignment of these policies was the condition and inducement for the renunciation of dower, and the testimony is that from time to time the wife requested the assignment to be made, but, being very busy, and in the hope, probably, of being able to secure a reconveyance of his home by a repayment of the loan, and it being necessary that the formal assignment should be made upon blanks furnished by the insurance companies, he postponed the actual assign