170 F.2d 187 | 5th Cir. | 1948
This case is before us for the second time. Both appeals followed dismissals by the district court for lack of complete diversity when parties found by the court to be indispensable were joined. The opinion on the first appeal, 5 Cir., 163 F.2d 989, is sufficiently comprehensive to make unnecessary more than a summary of the pleadings and facts relative to the issues before us on this appeal.
The appellant, plaintiff below, acquired a deed to land in Georgia from Mrs. J. C.
On trial, following remand, there was testimony that Mrs. West had an oral agreement with appellant, made when she deeded the property to him, that she should continue to occupy the premises and receive the revenues therefrom until her death. There was also testimony concerning a written agreement between appellant and one E. L. Oliver that the latter would receive one half of the property on Mrs. West’s death provided he cared for her during her life. Upon this testimony, the court below found that both Mrs. West,and Oliver had interests in the land in common with appellant and were indispensable parties. The court'also found that Mrs. West’s deed to Julian conveyed a remainder interest in the property and reserved a life estate to her. It then sustained a motion by defendant based on lack of diversity and dismissed the suit. From the findings and subsequent dismissal, plaintiff has again appealed.
Much space, with copious citations from Georgia decisions, is devoted in the briefs to a discussion of the deed from Mrs. West to Julian. Appellant urges that, under Georgia law, it is testamentary and that Mrs. West’s death is requisite to effectuating title in Julian. Appellee contends, as the court below held, that, under the local law, Mrs. West vested Julian with title, retaining a life estate in herself. We think a present decision of this question premature. The charge of misrepresentation or fraud, under which Mrs. West allegedly parted with possession of the deed to Julian, should first be resolved. If fraud is found, as alleged, the element of delivery by the vendor to the vendee, necessary to the validity of the deed would be lacking: Appellee would take nothing thereunder. Such a finding would foreclose consideration of the nature of this deed or of the rights it purported to create.
The only question we need now determine is, Did the trial court err in ruling that Mrs. West and Oliver were indispensable parties, whose presence would destroy diversity?
Under the provisions of the deed to Julian, Mrs. West retained the possession of and the revenues from the property during her lifetime; those same rights she enjoyed under the agreement with appellant. The outcome of this suit will not affect those rights. In Lawrence v. Sun Oil Co., 5 Cir., 166 F.2d 466, 469, we said: “ * * * in numerous adjudications it has been held that the test of indispensability is whether' the absent party’s interest in the subject matter of the litigation is such that no decree can be entered in the case which will do justice between the parties actually before the court without injuriously affecting the rights of the absent party.”
Applying this test to the facts before us, we hold that Mrs. West is riot an indispensable party. Nor is Oliver an indispensable
The judgment appealed from is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.