222 F. 140 | D.N.J. | 1915
The complainant, a resident of the state of New York, claiming to be a judgment creditor of the estate of James Conway, deceased, on behalf of itself and other creditors of said James Conway, similarly situated, filed its bill in the New Jersey Court of Chancery for the purpose of having certain conveyances of land by the said James Conway declared to be in fraud of such creditors. The defendants who removed the cause into this court, viz., Edward B. Reiley and Bessie A. Reiley (his wife), and John F. McGrath and Frances A. McGrath (his wife), reside in the state of Connecticut. The remaining defendants reside in the state of New Jersey.
The bill charges, in substance, and so far as pertinent to the questions presented on this motion, that the said James Conway conveyed six of the twelve therein described tracts of land to his son, William F. Comvay; that said William P. Conway conveyed three of such tracts to Edward B. Reiley and the remaining three to John F. Mc-Grath, who respectively, each joined by his wife, reconveyed the same to him; that such six tracts with others (also alleged to be affected by such fraud), were afterwards conveyed by said William F. Conway to Isabelle E. McGrath, who thereafter became the wife of the said William F. Conway; and that all said conveyances were in fraud of complainant’s rights as a creditor, and to place such lands beyond the reach of the ordinary process of law. The bill also alleges that said James Conway died possessed of “no real estate the legal title to which stood in” his name; that letters of administration upon his estate were issued to his daugher, Mary L. Conway Mason; that the said James Conway, during his life, and his heirs since his death, have possessed and received the rents, issues, and profits of said lands “as fully to all intents and purposes as if said pretended conveyances had never been made”; and that complainant had applied to the relatives (by blood and marriage) of said Janies Conway to pay it his said indebtedness, but that they had refused to do so. The bill prays, in addition to the usual prayers for process, answer, discovery, a sale of the lands for the benefit of complainant, and general relief, that it may be decreed that the said Isabelle E. McGrath Conway hold such tracts of land—
“in trust for the heirs of the said James Conway, subject to the lien of the indebtedness of the said James Conway to your orator, and that the heirs of the said James Conway (William F. Conway, Mary L. Conway Mason, and Helen D. Conway Kelly, son and daughters) are the beneficial owners of said real estate, and that your orator’s said lien by reason of the indebtedness of the said James Conway, now deceased, to your orator, may be established as against said lands and premises, and that the said defendants, or some one of them, may be decreed to pay to your orator the full amount due and owing to it on the said judgment, with interest and costs thereon.”
“in the cause a separable controversy between the complainant and the four defendants residents of Connecticut, to which said controversy the remaining defendants were not necessary parties, and which can be wholly determined without their presence.”
Barney v. Latham, though the main reliance of the defendants in their contention that this is a separable and removable controversy, is really a controlling authority t for the contrary view. In that case the removable controversy was one to which there were no necessary parties other than the plaintiffs and the defendants who sought to remove the cause, all of which defendants were citizens of a state different from that wherein the suit was brought and different from the state of which the plaintiffs were citizens. In the present suit, as noted, all the necessary defendants to the alleged separable controversy are not so situated.
As, in my judgment, the controversy which thus emerges from the bill of complaint, and which may be said to be separable from the main suit, is one that cannot be removed into this court, because the presence of defendants resident in New Jersey is necessary to its determination, it is unnecessary to decide the other question raised, namely, whether, even if the controversy were as contended by the removing defendants, it could he removed into this court, because the plaintiff as well as such removing defendants are not residents of this district.
For different interpretations of the phrase “proper district,” as applied to the removal of causes from state to United States courts, see St. John v. Taintor (D. C.) 220 Fed. 457, and cases cited.
The motion to remand is granted.