1871. On March 5, 1872, an act of congress took effect, (17 St. 37,) which enacted "that the commissioner of the general land-office is hereby authorized and required to receive and examine the selections of swamp lands in Lucas, O'Brien, Dickinson, and such other counties in the state of Iowa as formerly presented their selections to the surveyor general of the district including that state, and allow or disallow said selections and indemnity provided for according to the acts of congress in force touching the same at the time such selections were made, without prejudice to legal entries and rights of bona fide settlers under the homestead or pre-emption laws of the United States at the date of this act."

An application was made under this act, on April 21, 1875, to the commissioner of the general land-office, to adjust the claims of the county for swamp lands on the basis of its lists theretofore filed. Upon this application, the commissioner, on July 7, 1875, notified the railroad companies, to which, in the mean time, the lands in question had been certified as embraced in the, grant to them, that his office had no right to refuse to make the investigation asked for "in regard to the swampy character of these lands, and if any of them are found, on examination, to be of the description of lands granted to the state as swamp and overflowed lands, it will be the duty of the department to cause the same to be certified, and, on the request of the governor, patented to the state as such." An appeal was taken from this decision of the commissioner to the secretary of the interior, on the ground that the subject-matter of the proceeding, so far as it related to lands already certified to the railroad companies, had passed from the jurisdiction of the department. On August 24, 1876, the acting secretary of the interior sustained the appeal and reversed the decision of the commissioner, being of opinion that no examination or certification of the lands in question should be made. Upon this recital of the proceeding in the general land-office it is claimed for the plaintiff in error:

(1) That by the terms of the act of March 5, 1872, the decision of the commissioner was intended to be final, from which no appeal would lie to the secretary.

But there is nothing in the act which alters the relation between the two officers, as otherwise established, or puts the decisions of the commissioner, under that act, upon a footing different from his other decisions; and if there were it would make no difference, for the only decision made was that the state of Iowa was entitled to the examination of the question as to the lands claimed for Buena Vista county, whether they were not swamp and overflowed lands. But he did not, in fact, enter upon the examination, and made no decision as to the character of the lands. The statement casually made in the letter of the commissioner that the state had long since claimed the lands as swamp lands, and furnished prima facie evidence that they were of that character, certainly has no value, either as evidence or adjudication, especially as he immediately adds, that "this claim has not yet been examined by this office, and until it is so examined, and either rejected or approved, the duty of this department is not performed."

(2) It is further claimed by the plaintiff in error that the defendant having notice of its application to the land department of its claim, based upon the list in question, and having objected to its consideration solely on the ground that the department had no jurisdiction to entertain it, which objection prevailed, is now estopped from making, in any other forum, any other objection to the list itself, or to the character of the lands described in it.

But this claim is equally without foundation. The defendant in error, if it could be considered as a party to the proceeding in the land-office, contested its jurisdiction, as it had the right to do; and, having prevailed on that point, cannot be charged with waiving other objections it was not called on to make. If the department had decided to entertain the claim, the inquiry would have

been open, upon evidence from both parties, as to the actual character of the lands in question at the date of the swamp-land grant of September 28, 1850; and the department would, in that event, have decided the question of fact according to the weight of the evidence adduced by both parties bearing upon it. The very theory of the case of the plaintiff in error is that, because the officers of the land department have neglected or refused to perform their duty in determining the question of fact on which the validity of its claim depends, it has an equity to require the investigation to be made in a court of justice, which ought to have been made by them, so that if, in point of fact, the lands claimed passed under the terms of the grant, the legal title wrongfully granted to the defendant may be decreed to it. According to the principle stated in the case of the Railroad Co. v. Smith, 9 Wall. 95, the same evidence which might have been required in the land-office would be necessary to establish the plaintiff's claim in a court of equity, which would not decree the defendant to convey to the plaintiff the legal title, unless clearly satisfied, by full proof of the disputed fact, that the lands in controversy were swamp and overflowed lands at the date of the act of congress of September 28, 1850. The plaintiff in error did not choose to go into a trial of that issue, and rested its case simply upon the list purporting to be the selection on behalf of the county of its swamp and overflowed lands. That instrument had no value as evidence, as to the only matter in issue, for the reasons given by the supreme court of Iowa.

Other errors are assigned upon the record, relating, however, to matters of pleading and practice under the laws of the state, which, as they involve no federal question, are not proper for our consideration. The judgment of the supreme court of Iowa is accordingly affirmed.

(112 U. S. 187)

AYRES and others v. WISWALL and others.
(November 10, 1884.)

The foreclosure of a mortgage against several mortgagors, some of whom reside
outside of the state, the mortgage debt being a unit, and all the mortgagors, resi-
dent and non-resident, being similarly bound, is not such a suit as may be removed
to a federal court under act of March 3, 1875.

Appeal from the Circuit Court of the United States for the Eastern District of Michigan..

John Atkinson and John F. Dillon, for appellants. J. H. McGowan and W. T. Mitchell, for appellees.

WAITE, C. J. This is an appeal, under section 5 of the act of March 3, 1875, c. 137, (18 St. 470,) from an order of the circuit court remanding a case which had been removed from a state court. The suit was brought on the fifteenth of April, 1879, in the circuit court of Huron county, Michigan, by the appellees, citizens of New York, against Ebenezer Wiswall, also a citizen of New York; Ebenezer R. Ayres, a citizen of Ohio; Frederick S. Ayres, James S. Ayres, Charles G. Learned, citizens of Michigan, and many others whose citizenship does not appear, to foreclose a mortgage executed by Frederick S. Ayres, Charles G. Learned, and Ebenezer Wiswall, to Catharine E. Wiswall, a citizen of New York, to secure a debt owing by them jointly to her. This mortgage and the debt it secured were assigned to the appellees before the suit was brought. After the mortgage was made, Ebenezer Wiswall contracted in writing to sell to Frederick S. Ayres his interest in the mortgaged property, subject to the mortgage debt, which Ayres assumed to pay as part of the consideration money. Afterwards, Learned sold and transferred to Ebenezer R. Ayres all his remaining interest in a part of the mort

gaged property, subject to the mortgage, which Frederick S. Ayres, James S. Ayres and Ebenezer Ayres bound themselves to pay. Between the time of the execution of the mortgage and the commencement of the suit, the mortgagors and their grantees sold and conveyed a large number of the parcels of the mortgaged property to various persons whose citizenship does not appear. All these purchasers were made parties. The bill, after setting forth the execution of the mortgage, and the various transfers and conveyances, and giving credit for certain payments on the mortgage debt, prayed that Frederick S. Ayres, Charles G. Learned, and Ebenezer Wis wall be decreed to pay the amount found due on the mortgage debt, and in default that the property, or so much thereof as was necessary, might be sold and the proceeds applied to that purpose. It further prayed for execution against Frederick S. Ayres, Charles G. Learned, Ebenezer Wiswall, and James S. Ayres for any balance of the debt which might remain due after the property was exhausted. Ebenezer Wiswall and Learned filed separate answers to the bill, in which they admitted the execution of the mortgage and the debt for the security of which it was given, and asked that their respective grantees, who had assumed the payment of the mortgage debt, might be decreed to be first personally liable for any money decree that should be rendered. Frederick S. Ayres and James S. Ayres also answered, denying that the original debt for which the mortgage was executed amounted to as much as it was stated in the mortgage to be, and averring that other payments had been made beyond those stated in the bill. They insisted that there was not more than $20,000 due, and this they offered to pay.

In this state of the pleadings, Frederick S. Ayres, James S. Ayres, and Ebenezer R. Ayres, on the twenty-eighth of November, 1879, filed in the state court a petition, accompanied by the necessary bond, for the removal of the cause to the circuit court of the United States for the Eastern district of Mich igan. The parts of the petition material to the present inquiry are as follows: "That said complainants are, and were at the time said suit was commenced, citizens of New York; that your petitioners Frederick S. Ayres and James S. Ayres are, and were when said suit was commenced, citizens of Michigan, and your petitioner Ebenezer R. Ayres is, and was when said suit was commenced, a citizen of Ohio; that in said suit, which is for the foreclosure of a mortgage on a large tract of land in the Eastern district of Michigan, there is a controversy which is wholly between said complainants and these petitioners, and which can be fully determined, as to them, without the presence of the other defendants." Under this petition the case was taken to the circuit court of the United States, where it remained until the twenty-ninth of December, 1881, and until after a hearing, and a decree finding the amount due on the mortgage and ordering a sale of the property. While the case was in the United States court, Ebenezer R. Ayres filed an answer, presenting substantially the same issues as those of Frederick S. and James S., in the state court. On the twenty-ninth of December, 1881, and during the same term in which the final decree was rendered, the following order was made: "It appearing to the court that the record in this cause was improperly removed to the court from the circuit court of the county of Huron, in chancery, and that this court hath not jurisdiction of the cause, it is ordered that the proceedings had thereon in this court be, and the same are hereby, set aside and held for naught, and that the said cause be remanded to the said circuit court for Huron county, in chancery, and that this cause be dismissed from this court for want of jurisdiction." From this order the present appeal was taken on the twelfth of November, 1883.

The fifth section of the act of March 3, 1875, makes it the duty of the circuit court of the United States to remand a cause which has been removed from a state court when it shall appear to the satisfaction of the court, at any time after the suit has been removed, that such suit does not really and sub


stantially involve a dispute or controversy properly within the jurisdiction of the court. For this purpose the circuit court retained its power over the suit and the parties until the end of the term at which the final decree was rendered. The parties were not, in law, discharged from their attendance in the cause until the close of the term, and the decree, though entered, was "in the breast of the court" until the final adjournment. Bac. Abr. tit. "Amendment and Jeofail," 1; Ex parte Lange, 18 Wall. 163; Goddard v. Ordway, 101 U. S. 752. The order to remand can be made at any time during the pendency of the cause when it shall appear there is no jurisdiction. The fact that Ebenezer R. Ayres had filed his answer in the United States court is a matter of no importance. That fact did not of itself confer jurisdiction if there had been none before. It will be for the state court, when the case gets back there, to determine what shall be done with pleadings filed and testimony taken during the pendency of the suit in the other jurisdiction. The suit was brought for the foreclosure of the mortgage, and a personal money decree for any balance that might remain due on the debt after the security of the mortgage was exhausted. The mortgage and the debt it secured presented the subject-matter of the controversy in the case. Ebenezer Wis wall was one of the mortgagors and one of the debtors. The relief sought was against him and the other defendants. It involved a finding of the amount due from him and the others who were bound for the payment of the debt, and in a certain event an order for an execution against him personally for the collection of the money. The debt was a unit. Whatever sum was due from one was also due from all who were chargeable with its payment. There could not be a decree against a part of the defendants for one sum, and against the rest for another. Although Wis wall did not contest the amount of the claim of the complainants as set out in their bill, Frederick S. Ayres, one of the joint debtors, did; and if he succeeds in his defense it will, of necessity, inure to the benefit of Wiswall. The matter in dispute between the parties on the opposite side of the suit to enforce the mortgage was the amount due on the mortgage debt. The complainants, citizens of New York, are on one side of the suit, and Ebenezer Wiswall, also a citizen of New York, and others, citizens of Michigan and Ohio, on the other. If the claim of the complainants is sustained, the decree will be against all the defendants. In order that the complainants may get all the relief they ask, and which, upon their showing in the bill, they are entitled to, Wiswall is a necessary and substantial party to the suit, and on the opposite side from them.

The material facts of this case are entirely different from those in the Removal Cases, 100 U. S. 457, where there was one controversy between the construction company and the railroad company as to the existence of a mechanics' lien, and the amount due thereon, and another between the construction company and certain mortgage trustees as to the priority of their respectFive liens. In the progress of the cause, the mechanics' lien was established against the company, and the property sold under the lien to pay the mechanics' debt. This ended that controversy. There then remained to be settled the other controversy between the construction company and the mortgage trustees, and we held that, as the railroad company was not interested in that dispute, it was to be treated as a nominal party only. It stood indifferent between the two real parties. No decree was asked against it, and the rights of the parties who were really contending could be fully settled without its presence. So, in Pacific R. R. v. Ketchum, 101 U. S. 298, we held that the trustees of a mortgage, which was being foreclosed at the suit of bondholders, might properly be arranged on the same side of the controversy about the foreclosure with the complainants, although they were nominally defendants, because there was no antagonism between them and the complainants, and no relief was asked against them. Here, however, relief is asked against Wiswall, and it grows directly out of the subject-matter of the

action, to-wit, the collection of the mortgage debt which Wiswall owes jointly with the other debtors.

It follows that, as Wiswall was a citizen of the same state with the complainants, the suit was not removable under the first clause of section 2 of the act of 1875. All the parties on one side of the controversy were not citizens of different states from those on the other. Removal Cases, supra.

It remains to consider whether it was removable under the second clause on the ground that there was in the suit "a controversy which is wholly between citizens of different states, and which can be fully determined as between them." The petition for removal was framed to meet this provision of the statute. What we have already said applies equally well to this branch of the case. The rule is now well established that this clause in the section refers only to suits where there exists "a separate and distinct cause of action, on which a separate and distinct suit might have been brought and complete relief afforded as to such cause of action, with all the parties on one side of that controversy citizens of different states from those on the other. To say the least, the case must be one capable of separation into parts, so that, in one of the parts, a controversy will be presented with citizens of one or more states on one side and citizens of other states on the other, which can be fully determined without the presence of the other parties to the suit as it has been begun." Fraser v. Jennison, 106 U. S. 194; S. C. 1 Sup. Ct. Rep. 171. As has already been seen, this is not such a case. There is here but one cause of action. The personal decree which is asked against Wis wall is incident to the main purpose of the suit. It presents no separate cause of action. The fact that separate answers were filed which raised separate issues in defending against the one cause of action, does not create separate controversies within the meaning of that term as used in the statute. They simply present different questions to be settled in determining the rights of the parties in respect to the one cause of action for which the suit was brought. Hyde v. Ruble, 104 U. S. 407; Winchester v. Loud, 108 U. S. 130; S. C. 2 SUP. CT. REP. 311; Shainwald v. Lewis, Id. 158; S. C. 2 SUP. CT. REP. 385.

It follows that the suit was properly remanded, and the order of the circuit court to that effect is, consequently, affirmed.

(112 U. S. 183)


(November 10, 1884.)


Suit brought by citizens and tax-payers of a county to test the validity of a subscription to railroad stock made by the county, and the authority of the county court to bind the county to pay the bonds, which it was proposed to issue for the subscription, the county itself, through its proper officers, being party in the suit, is, in effect, the same as a suit brought for such purpose by the county itself.

2. SAME-EVIDENCE-NOTICE OF PENDENCY OF A SUIT AFFECTING NEGOTIABLE SECURITIES. Purchasers of negotiable securities are not charged with constructive notice of the pendency of a suit affecting the title or value of the securities; but in defense of an action brought by such a purchaser against a county to recover upon bonds alleged to have been issued by it, it is proper to introduce evidence going to show that the plaintiff or his assignor had actual notice of a suit pending, affecting such bonds, before their purchase by him.


If the trial court has doubts about the good faith of an offer of testimony, it can insist upon the production of the witness, and upon some attempt to make the proof, before it rejects the offer; but if it does reject, and allows a bill of exceptions, which shows that the offer was actually made and refused, and there is nothing else in the record to indicate bad faith, an appellate court must assume that the proof could have been made, and govern itself accordingly.

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