62 F. 161 | U.S. Circuit Court for the District of Southern California | 1894
This suit was brought in the superior court of Los Angeles county. To the bill, James R. Townsend and a corporation styled Rig Rock Creek Irrigation District are made defendants, and in it it is alleged that at a certain stated date the complainant was the owner and seised in fee of certain lands designated according to subdivisions of the public surveys of the United Stales, situated in Los Angeles county, Cal., and aggregating 1,435.68 acres, which the complainant then agreed in writing to sell, and defendant Townsend to buy, for the sum of $3,589.20 in United States gold coin, of which sum Townsend, at the time, paid $717.84. The remainder of the purchase money was, hv the terms of the contract, to be paid at certain designated dates, with interest thereon, as provided for. The contract provided that the vendee should have the immediate possession and enjoyment of the property, in consideration of which he should pay all taxes and assessments imposed thereon, and. upon the full performance on the part of Townsend, his legal representatives or assigns, of his part of the contract, the complainant should execute to íúm, his heirs or assigns, “upon request and 1 he surrender of this contract, a deed of grant, bargain, and sale for the conveyance of said premises, reserving all claim of the United ■States to the .same as mineral land.” The bill alleges that the defendant Townsend failed to make any of the deferred payments at maturity, or at all, and failed to pay any interest thereon, and that the whole of such payments, together with the interest thereon, remain unpaid. It alleges that on October 19, 1892, complainant demanded of him payment of the several sums due under the contract, and, at the time of demanding such payment, tendered to him a good and sufficient grant, bargain, and sale deed conveying the lands
The petition for removal set up that the defendant Big Rock Creek Irrigation Company was, at the time of the commencement of the suit, — November 1, 1892, — and still is, a corporation organized and existing under an act of the legislature of the state of California
The purpose of the suit is the enforcement of the contract into which, complainant and the defendant Townsend entered, to compel. him to make the payments he stipulated to make, and to obtain a decree fixing a time within which he or his assignee shall make such payments, and receive the conveyance the complainant contracted to make, and, in the event that the defendants fail to make such payments, that all rights acquired by them under the contract be barred and foreclosed, and the complainant be restored to the possession of the property that was conferred, by the contract. Townsend demurred to the bill, but did not join in the peril ion for removal. It. is said on behalf of the defendant corporation, on whose petition (he case was removed, that he is a mere nominal party, and must be so regarded, because of the allegation of the petition that after the execution of the contract, and before
A deed by which a party sells and conveys all of his right, title, and interest in land is not necessarily a quitclaim deed; nor is it to be inferred, in support of the asserted jurisdiction of the circuit court, that the claims of the defendant corporation under the act of March 3, 1891, antedated the alleged conveyance from Townsend to it. The motion to remand ilie case would, therefore, be granted, but for the allegations of the petition respecting the act of congress of March 3,1871. under and by virtue of which it is alleged the com-
‘Your petitioner states that said suit is one arising' under the laws of the United States, in this, to wit: That plaintiff seeks, in and by said suit, to recover lands embraced in a survey of public lands made by ihe government of the United States in 1874, embracing a part of said section twenty (20), ip. 37 N., R. 15 E., 3d P. M., in Illinois, and patents Issued under said survey, under which your petitioner deraigned title In fee sinrpie before the commencement of said suit, and in him ihen vested by conveyance from the patentee; that the plaintiff claims that he is seised of the fractional tract described in the declaration as the grantee of one Horatio D. De Witt; that the said survey, patents, and deeds of petitioner are not made in pursuance of the acts of congress and laws of the United States relating to the surveying and disposition of the public lands of the United stales, and that said act of congress and laws have been misconstrued by the said land department and disregarded, and that said survey, patents, deeds, and the proceedings of the land department, are illegal ami void, and in violation of the contract rights of said Mitchell under the laws of (lie United States; that, by virtue of the alleged ownership of said fractional tract described in the declaration, he (the plaintiff), under and in imrsuance of said act of congress and laws of the United States, is also the owner of said lands so owned by your- petitioner by virtue of said survey of 1874, and patents and deeds (hereunder. This*166 petitioner claims title in fee to said lands other than said fractional tract by yirtue of said survey of 1874, said patents, and deeds issued thereunder in pursuance of the act of congress aforesaid and laws of the United States, and therefore states that said suit is one arising under the laws of the United States entitling this petitioner to a removal of the suit under the act of congress” of March 3, 1876, for that cause alone.
The court said:
“Whether the facts stated in the original petition for removal were sufficient for that purpose may perhaps admit of some question. The plaintiff was alleged to be a citizen of Illinois, and the defendant Jordan a citizen of New York. The citizenship of the other defendants was not mentioned, though it is understood they were residents of Illinois. It is clear, therefore, that the case was not removable -unless the interest of Jordan was so separate and distinct from that of the other defendants that it could be fully determined, as between vhim and the plaintiff, without the presence of the others as parties in the case. As he alone, according to his statement, had the title, and as Smale was merely his tenant, if this relation was admitted by Smale (as it was), there would seem to be no good reason why the contest respecting the title might not have been carried on between him and the plaintiff alone, so far as Smale was concerned. * * * As to the other defendants, — the Bennetts, — there may have been greater difficulty in sustaining a removal. They were made defendants, apparently in good faith, and were not acknowledged to be tenants of Jordan; and the plaintiff might well insist on prosecuting his action against them, as well as against Jordan, in order that, if he should be successful,'there might be no failure of a complete recovery of the land claimed by him.”
The manifest view of tbe court was that the Bennetts were proper parties, as to whom the plaintiff had the right to proceed to judgment. They did not join in the petition for removal, yet the court held that the additional ground of removal stated in the amended petition was sufficient to authorize the removal to be made.
“It states [said the court] very clearly that the controversy between the parties involved the authority of the land department of the United States to grant the patent or patents under which the defendant claimed the right to hold the land in dispute after and in view of the patent under which the plaintiff claimed the same land. This, if true, certainly exhibited a claim by one party, under the authority of the government of the United States, which was contested by the other party on the ground of a want of such authority. In the settlement of this controversy, it is true the laws of the state of Illinois might be invoked by one party or both, but it would still be no less true that the authority of the United States to make the grant relied on would necessarily be called in question. We are therefore of opinion that the ground of removal now referred to presented a case arising under the laws of the United States, and so within the purview of the act of 1875.”
The decision of the supreme court in the case of Mitchell v. Smale is applicable to the removal in question, and, upon the authority of that case, the motion to remand is denied.