20 S.E. 469 | N.C. | 1894
The plaintiffs could have brought and maintained in the State courts any one of these suits growing out of the transactions covered by the complaint.
1. They might have filed their complaint against the trustee Mayo and his cestuis que trustent, asking an account or an adjudication of the amount of their claims and a sale to satisfy them, and pay over any balance to the plaintiffs, acting on the assumption that the older mortgage debts were satisfied.
2. They might have instituted an action against the first mortgagees solely for the purpose of effecting a settlement and having the court formally declare the mortgage debt satisfied.
They had the right to demand that all of these questions be (378) settled by one action, in which, if they should prevail, the older mortgage debts should be declared satisfied, the property sold to *259 pay the later mortgage debts to Mayo, and freed by the decree of the court from the clouds of the other claims, and the residue of the purchase money above the amount required to discharge the debts of the mortgages under the Mayo deed, if any, adjudged to belong to the plaintiffs.
The fact that the plaintiffs and those claiming under the last mortgage deed have a common interest in showing that the debts secured by the older mortgage deeds have been discharged makes them none the less adversary parties as to the other matters involved in this controversy. Louisa M. Herring, one of the cestuis que trustent secured under the last or Mayo deed, and the trustee L. R. Mayo are and were at the institution of the suit citizens and residents of the State of North Carolina. Supposing that the plaintiff's purpose is in good faith to first relieve the property of the cloud which the incumbrance of the first mortgages cast upon it, and to satisfy a purchaser at a foreclosure sale that the junior mortgagee, Louisa M. Herring, among others, will be concluded from setting up any further claim, and thereby to secure a large price, with possibly the incidental advantage of securing a considerable surplus after discharging debts out of purchase money, there can be no doubt about the necessity and propriety of making both of these residents of this State parties to this proceeding in order to obtain the complete relief desired. It is not our province to act upon a suspicion of improper motives, or indeed to impute to parties invoking the aid of the court anything but good faith, in the absence of plenary proof of a wrongful intent. Wilson v. Township,
This suit, therefore, was brought for a complete adjustment of (380) priorities and equities between all of the parties in interest. If the plaintiffs, having the right to elect that they will have such a complete adjustment of all liens and equities affecting certain property, bring in all parties interested in one action instead of suing separately, when some of the defendants are from the same and others from a different State from that in which the plaintiffs reside, a portion of the defendants cannot demand a rearrangement of parties according to residence, because some of the defendants from the State in which the plaintiffs reside admit the material allegations made by the plaintiffs. It is not a sufficient reason for removal that the plaintiffs might have brought separate suits or without associating other joint plaintiffs with them. 2 Foster Fed. Pr., secs. 382, 384; Wilder v. Ins. Co., 46 Fed., 682.
It would be impossible in our case to rearrange the parties plaintiff and defendant on the one side and the other, so as in that way to show the existence of a separable controversy. If the parties should be classified according to common interest it would result in placing L. R. Mayo and L. M. Herring of North Carolina, together with L. Hassell Lapp of Pennsylvania, with the plaintiffs on the one side as seeking to show that nothing remains due on the mortgages for the benefit of Howes Sheets, while on the other side would be some of the present plaintiffs, residents and citizens of North Carolina, associated with several citizens of Pennsylvania, two of New Jersey and one each from New York and Florida. So that, by no conceivable rearrangement on the basis of common interest could the appellants show (as it is essential to show in order to establish the right to an order of removal) the existence of a separable controversy wholly between citizens of North Carolina on the one side and citizens of another or other State on the other. Brown v. Truesdale,
Having chosen to have all parties whose presence is indispensable to obtaining the full measure of relief sought before the court in one suit, that suit cannot be cut up into two and removed, so as to try in piecemeal, against the will and to the possible detriment of the plaintiffs, on the suggestion that some of the indispensable parties, having apparently adverse interests to those of plaintiffs, are really in collusion and making common cause with them. Had the remedy against Howes Sheets been in nowise connected with or dependent upon the demand against the parties to the Mayo deed, or had no relief been asked that would conclude Mayo, Herring and Lapp, the contention that they were not adversary to the plaintiffs, and that as to Howes Sheets there is a separable controversy with citizens of North Carolina, might have been more plausible. Viral v.Ins. Co., 34 Fed., 228. Even on that supposititious state of facts other difficulties might arise, growing out of the presence of other parties plaintiff from other States joined in the alleged exercise of a right of election by the plaintiffs. Desty, supra, 96 J.
The rule is, that for the purpose of testing the right of removal, the allegations of the bill must be taken as true. Desty, supra, 96 M. We think that, conceding the truth of the allegations of the complaint, the plaintiffs could not get the complete relief demanded against all of the parties whose presence is indispensable to that end, and at the same time so arrange the parties, according to interest, that all on one side would be citizens of different States from those on the other. Desty, supra, 96 I.
In refusing to grant the motion to remove, we think there is
No error.
Cited: Mecke v. Mineral Co.,
(382)