A suit in equity for the partition of land, wherein the
plaintiff avers that he is seized as tenant in common of an estate
in fee simple and is in actual possession of the land described,
and, after setting forth the interests of the other tenants in
common, and alleging that no remedy at law exists to enable him to
obtain his share of said lands in kind, or of the proceeds if sold,
and that he is wholly without remedy except in chancery, prays for
the partition of the land and the segregation of his own share from
that of the others, and incidentally that certain deeds may be
construed and, if invalid, may be cancelled, and that he may
recover his advances for taxes and expenses, is clearly a bill to
enforce a claim and settle the title to real estate, and as such is
a suit covered by § 8 of the Act of March 3, 1875, c. 137, 18
Stat. 470, 472, of which the Circuit Court of the district where
the land lies may properly assume jurisdiction.
The questions that, the title of some of the parties to the land
being in dispute, such titles must be settled before partition
could be made, that the interests of several of the defendants were
adverse to each other, and that as some of these defendants were
citizens of the same state, it would raise controversies beyond the
jurisdiction of the circuit court to decide, not having been
certified to this Court, are not passed upon.
Page 155 U. S. 59
Where the laws of a state give a remedy in equity, that remedy
will be enforced in federal courts in the state if it does not
infringe upon the constitutional right of the parties to a trial by
jury.
The objection that A. was alleged in the bill to be a resident
and citizen of the District of Columbia was met by an amended
allegation that A. was "a citizen of South Carolina, now residing
in Washington City, District of Columbia," and while this
allegation was traversed, it must, for the purpose of this hearing,
be taken as true.
This was a bill in equity for the partition of real estate
originally filed by George P. Greeley and wife, who were alleged to
be citizens of New Hampshire, against 130 defendants, most of whom
were citizens of Florida. Of the remaining defendants, some were
citizens of Georgia; others, of Illinois, South Carolina, Alabama,
Texas, North Carolina, New York, New Jersey, Mississippi, and one,
Eliza B. Anderson, of the City of Washington and District of
Columbia.
The bill averred the plaintiff, George P. Greeley, to be seised
as tenant in common, in fee simple, and in actual possession, of
10,016 acres of land in the Northern District of Florida, of the
value of $10,000, exclusive of interest and costs, etc.; that one
John T. Lowe, and Susan, his wife, were originally seised of the
said premises by grant from the Spanish government in 1816, as a
mill right (Lowe being then married, and his wife, Susan, being
seised, by ganancial right, of an undivided half of said premises
under the laws of Spain, which declared that real estate acquired
by either the husband or wife during coverture by purchase, gift,
or gain becomes and remains community property), and that they were
seised thereof as tenants in common; that Lowe died in 1824, and
the grant was subsequently confirmed by the Supreme Court of the
United States in 1842,
United States v.
Low, 16 Pet. 162, that the ganancial right and
title of said Susan Lowe has never been alienated, relinquished, or
annulled, and has been duly protected and guarantied by the treaty
of 1819 between the United States and Spain, that Lowe attempted to
convey to one Clark the southern half of this grant, but his wife,
then living, did not join, and the half of the south half only was
conveyed; that Clark conveyed to Duncan L. Clinch, who died
testate, leaving his
Page 155 U. S. 60
executor power to sell said lands, that Susan Lowe survived her
husband, but both died intestate, and their estates had long been
settled, that the north half of said grant and half of the south
half descended to their children, nine in number.
The geneology and shares of the heirs and their grantees are
stated at great length in the bill, all the claims of the various
members being set up and defined, and the invalidity of certain
deeds attached as exhibits being averred and pointed out. The bill
contained a general averment that no other person except such as
were made parties had any interest in or title to the premises,
that by reason of the lapse of time, the disturbed condition of the
country, etc., it has been almost impossible to trace the lineage
of the several families and to find the actual parties in
interest.
The bill prayed that the different deeds attached as exhibits
might be construed and the interest, if any conveyed, ascertained
or the deeds cancelled, that all persons having any claims or liens
upon the lands might be brought in and required to prove their
claims or have the same held null and void, that partition of the
lands be made, if possible and equitable, and, if not, that they
might be sold and the proceeds distributed, that plaintiff recover
his advances for taxes and expenses, including costs and counsel
fees; that a master be appointed to state the shares, advances, and
fees, and that commissioners be appointed to make partition or
sale, etc.
Isaac A. Stewart, one of the defendants resident in Florida,
filed a plea to the jurisdiction setting up, among other things,
that the suit was not brought in the district of the residence of
either the plaintiffs or defendants, that the controversy was not
between citizens of different states, that certain defendants had
interests adverse to other defendants, that Eliza B. Anderson, one
of the defendants, was a resident and citizen of the District of
Columbia, that her claim was adverse to his (Stewart's), that
Greeley's wife was improperly joined, was not the cotenant, and
could not maintain a suit, that the wives of several of the
defendants were improperly joined
Page 155 U. S. 61
in that they possessed no legal interest in the property, and
that others who were necessary parties were not joined as
defendants. Thereupon, plaintiff moved for leave to amend his bill
by inserting after the name of Eliza Anderson the words, "citizen
of South Carolina, now resident in Washington, D.C.," and also to
add other defendants. The court granted the motion to amend, and
the cause came on to be heard on the plea to the jurisdiction. The
court made a final decree holding that while it was true that the
complainants were citizens of New Hampshire and resident there, and
some of the defendants were citizens of Florida in the district in
which the land lies, yet because there were other defendants
citizens of New York, and also of other states than the state in
which the complainants reside and have citizenship, and also
citizens of other federal districts than that where the land is
situate and where certain defendants reside, it was decreed
that
"this court has not jurisdiction over all the defendants to this
action, because they are not all residents and citizens of the
district in which the land sought to be partitioned lies, and are
not all found in said district at the time of the service of the
process."
On May 6, 1892, plaintiffs filed a petition for rehearing, and
on June 13 amended their bill by striking out the name of Eliza B.
Anderson as defendant. While no formal decree subsequent to the
rehearing appears to have been entered, by an endorsement made upon
the bill of June 15, it would appear that the bill was finally
dismissed upon that date. From this decree an appeal was taken to
this Court, and the question of jurisdiction, as above stated, was
certified to this Court for decision pursuant to section 5 of the
Court of Appeals Act.
Page 155 U. S. 67
MR. JUSTICE BROWN delivered the opinion of the Court.
This bill appears to have been dismissed by the court below upon
the ground that inhabitants of other districts than the Northern
District of Florida were made defendants. The question really is
whether, under the Act of August 13, 1888, c. 866, 25 Stat. 433,
requiring, in actions between citizens of
Page 155 U. S. 68
different states, suits to be brought only in the district of
the residence of either the plaintiff or the defendant, it is
admissible to bring a suit for partition in a district in which
only a part of such defendants reside. As suits are usually begun
in the district in which the defendants or one of the defendants
reside, the question practically involves the whole power of the
circuit court of one district to take jurisdiction of such suits,
brought against defendants, some of whom are residents of other
districts.
(1) The paragraph of section 1 of the act of 1888 relied upon by
the defendants reads as follows:
"And no civil suit shall be brought before either of said courts
against any person by any original process or proceeding in any
other district than that whereof he is an inhabitant, but where the
jurisdiction is founded only on the fact that the action is between
citizens of different states, suit shall be brought only in the
district of the residence of either the plaintiff or the
defendant."
In the case of
Smith v. Lyon, 133 U.
S. 315, this Court held that the circuit court has no
jurisdiction on the ground of diverse citizenship if there are two
plaintiffs to the action who are citizens of and residents in
different states and defendant is a citizen of and a resident in a
third state and the action is brought in a state in which one of
the plaintiffs resides. As was said by the Court, the argument in
support of the jurisdiction was
"that it is sufficient if the suit is brought in a state where
one of the defendants or one of the plaintiffs is a citizen. This
would be true if there were but one plaintiff or one defendant. But
the statute makes no provision in terms for the case of two
defendants or two plaintiffs who are citizens of different states.
In the present case, there being two plaintiffs, citizens of
different states, there does not seem to be, in the language of the
statute, any provision that both plaintiffs may unite in one suit
in a state in which either of them is a citizen."
The Court, referring to several prior cases in this Court in
which it was held that the word "citizen," as used in the Judiciary
Act of 1789, is used collectively, and means all citizens upon one
side of a suit, and if there are several co-plaintiffs the
intention of the act is that each plaintiff
Page 155 U. S. 69
must be competent to sue, and if there are several codefendants
each defendant must be liable to be sued, or the jurisdiction
cannot be entertained, held that the same construction must be
given to the word "inhabitant" as used in the above paragraph in
the act of 1888, and that if suit were begun in a district whereof
the plaintiff was an inhabitant, jurisdiction would only attach if
there were no other plaintiffs citizens and inhabitants of other
districts. If this doctrine be also applicable to defendants in
local actions, it necessarily follows that suit will not lie in any
district of which a defendant is a citizen or inhabitant if there
are inhabitants of other districts also made defendants. As above
stated, this practically inhibits all suits against defendants
resident in different districts.
A brief review of the history of corresponding provisions in
prior acts will show that it has never been supposed that the
federal courts did not have jurisdiction of local actions in which
citizens of different districts were defendants, and in fact
provision was expressly made by law for such contingency. In the
eleventh section of the Judiciary Act of 1789, c. 20, 1 Stat. 73,
79, is a provision, subsequently incorporated in section 739 of the
Revised Statutes, that
"no civil suit shall be brought before either of said courts
against an inhabitant of the United States by any original process
in any other district than that whereof he is an inhabitant or in
which he shall be found at the time of serving the writ."
Under this section, any number of nonresidents could be joined
as defendants if only they were served within the jurisdiction of
the court.
Ober v. Gallagher, 93 U. S.
199.
But, to obviate any objection that might be raised by reason of
the nonjoinder or inability to serve absent defendants, it was
provided by the Act of February 28, 1839, c. 36, 5 Stat. 321,
subsequently carried into the Revised Statutes as section 737,
that
"When there are several defendants in any suit at law or in
equity, and one or more of them are neither inhabitants of nor
found within the district within which the suit is brought, and did
not voluntarily appear, the court may entertain jurisdiction, and
proceed to the trial and adjudication of the suit
Page 155 U. S. 70
between the parties who are properly before it, but the judgment
or decree rendered therein shall not conclude or prejudice other
parties not regularly served with process nor voluntarily appearing
to answer, and nonjoinder of parties who are not inhabitants of nor
found within the district as aforesaid shall not constitute matter
of abatement or objection to the suit."
Construing this act, it was held in
Shields v.
Barrow, 17 How. 130, that it did not enable a
circuit court to make a decree in equity in the absence of an
indispensable party whose rights must necessarily be affected by
such a decree. Says Mr. Justice Curtis (page
58 U. S.
141):
"It remains true, notwithstanding the act of Congress and the
forty-seventh rule, that a circuit court can make no decree
affecting the rights of an absent person, and can make no decree
between the parties before it which so far involves or depends upon
the rights of an absent person that complete and final justice
cannot be done between the parties to the suit without affecting
those rights."
This ruling was applied in
Barney v. Baltimore
City, 6 Wall. 280, to a bill for partition filed by
Barney, a citizen of Delaware, in the Circuit Court of Maryland,
against the City of Baltimore and several individuals, citizens of
Maryland, and certain other citizens of the District of Columbia.
These latter had made a conveyance to one Proud, a citizen of
Maryland, for the special purpose of conferring jurisdiction on the
federal court, such conveyance being made without consideration and
with an agreement that the grantee would reconvey on request. It
was held that the court of chancery could not render a decree
without having before it the citizens of the District of Columbia,
and that their conveyance to Proud, being merely collusive,
conferred no jurisdiction upon the court.
The law remained in this condition until June 1, 1872, when
Congress, apparently to remove the difficulty suggested by these
cases, passed an act, Act of June 1, 1878, c. 255, 17 Stat. 196,
§ 13; subsequently incorporated into the Revised Statutes as
section 738, providing that
"[w]hen any defendant in a suit in equity to enforce any legal
or equitable lien or claim against real or personal property within
the district where the suit is brought is not an inhabitant of nor
found within the said district,
Page 155 U. S. 71
and does not voluntarily appear thereto, it shall be lawful for
the court to make an order directing such absent defendant to
appear, plead, answer or demur to the complainant's bill at a
certain day therein to be designated,"
etc. And then follows the provision, in section 739 that
"except in the cases provided in the next three sections, . . .
and the cases provided by
the preceding section [section
738], no civil suit shall be brought in any other district than
that of which the defendant is an inhabitant,"
etc. The "next three sections" are § 740, in which special
provision is made for states containing more than one district,
requiring the defendant, if a single one, to be sued in the
district where he resides, but if there are defendants in different
districts, suit may be brought in either, and a duplicate writ
issued against residents of the other districts; § 741,wherein
provision is made for suits of a local nature, where the defendant
resides in a different district in the same state from that in
which the suit is brought, permitting process to be served in the
district where he resides, and § 742, providing that in any
suit of a local nature at law or in equity, where the land, or
other subject matter of a fixed character, lies partly in one
district and partly in another within the same state, suit may be
brought in the circuit or district court of either district, etc.
These sections -- 740, 741 and 742 -- are the "next three sections"
mentioned in section 739 as exceptions to the general rule that no
civil suit shall be brought against an inhabitant in any other
district than his own.
But by the Act of March 3, 1875, c. 137, § 1, 18 Stat. 470,
a slight change was made in the previous phraseology to the effect
that
"no civil suit shall be brought before either of said courts
against any person by any original process or proceeding in any
other district than that whereof he is an inhabitant, or in which
he shall be found at the time of serving such process or commencing
such proceedings,
except as hereinafter provided."
This exception is contained in § 8 of the same act, which
deals with the class of cases mentioned in Revised Statutes, §
738, and provides for publication
"in any suit . . . to enforce any legal or equitable lien upon
or claim to, or to remove any encumbrance or lien or could upon
Page 155 U. S. 72
the title to real or personal property within the district where
such suit is brought,"
with a further proviso that
"said adjudication shall, as regards such absent defendant or
defendants without appearance, affect only the property which shall
have been the subject of the suit and under the jurisdiction of the
court therein, within such district."
As no exception was made in that act of the cases provided for
by §§ 740-742, it is at least open to some doubt as to
whether suits will lie against nonresident defendants under those
sections. So too, in the Act of August 13, 1888, § 5, there
was an express reservation of any jurisdiction or right mentioned
in § 8 of the act of Congress of which this act was an
amendment (that is, the Act of March 3, 1875), which, as above
stated, is the section permitting suits to enforce any legal or
equitable lien upon or claim to real estate to be brought in the
district where the property lies, and defendants, nonresidents of
such district, to be brought in by publication or personal service
made in their own districts. It is entirely true that § 8 of
the act of 1875, authorizing publication, does not enlarge the
jurisdiction of the circuit court. It does not purport to do so.
Jurisdiction was conferred, by the first section of the act of
1888, of "all suits of a civil nature," exceeding $2,000 in amount,
"in which there shall be a controversy between citizens of
different states;" and this implies that no defendant shall be a
citizen of the same state with the plaintiff, but otherwise there
is no limitation upon such jurisdiction. Section 8 of the act of
1875, saved by § 5 of the act of 1888, does, however, confer a
privilege upon the plaintiff of joining in local actions defendants
who are nonresidents of the district in which the action is
brought, and calling them in by publication, thus creating an
exception to the clause of § 1 that no civil suit shall be
brought in any other district than that of which defendant is an
inhabitant. Hence it appears that the case of
Smith v.
Lyon really has no bearing, as that case involved only the
rights of parties to personal actions residing in different
districts to sue and be sued, and was entirely unaffected by the
act of 1888 (§ 5), which deals with
defendants only in
local actions, and expressly reserves jurisdiction
Page 155 U. S. 73
if the suit be one to enforce a lien or claim upon real estate
or personal property. The precise question here involved has never
been passed upon by this Court, but in the only cases in the
circuit courts to which our attention has been called the
jurisdiction was upheld.
American F.L.M. Co. v. Benson, 33
F. 456;
Carpenter v. Talbot, 33 F. 537;
Ames v.
Holderbaum, 42 F. 341;
McBee v. Marietta &c.
Railway, 48 F. 243, and
Wheelwright v. St. Louis, New
Orleans &c. Transportation Co., 50 F. 709.
In line with these cases, and almost directly in point here, is
the decision of this Court in
Goodman v. Niblack,
102 U. S. 556, in
which it was held that where a bill was filed to enforce a claim or
lien upon a specific fund within reach of the court, and such of
the defendants as were neither inhabitants of nor found within the
district did no voluntarily appear, the circuit court had the power
to adjudicate upon their right to or interest in the fund if they
be notified of the pendency of the suit by service or publication
in the mode prescribed by Rev.Stat. § 738. This is a distinct
adjudication that defendants who are neither inhabitants of nor
found within the district may be cited by publication to appear,
and, if this be so, it is difficult to see how the omission of the
words "found within the district" in the act of 1888 makes any
difference whatever with regard to the right to call absent
defendants in by publication. The act of 1875 gave the right to sue
defendants wherever they were
found. The act of 1888
requires that they shall be inhabitants of the district. But in
both cases, an exception is created in local actions wherein any
defendant interested in the
res may be cited to appear and
answer provided he be not a citizen of the same state with the
plaintiff. So, too, in
Mellen v. Moline Malleable Iron
Works, 131 U. S. 352, a
suit instituted by a creditor to set aside a conveyance of the real
estate and a mortgage upon the personal property of his debtor,
made to secure certain preferred creditors, was held to be a suit
brought to remove an encumbrance or lien or cloud upon the property
within the meaning of § 8 of the act of 1875, and that the
circuit court
Page 155 U. S. 74
was authorized to summon an absent defendant and to exercise
jurisdiction over his rights in the property in suit within the
jurisdiction of the court.
Indeed, any other construction of this act would practically
nullify § 8 of the act of 1875, permitting the publication of
absent defendants, since the entire object of the section is to
call in defendants who cannot be served within the district, by
reason of their absence or nonresidence.
It follows, then, that if this be a suit covered by § 8 of
the act of 1875, the circuit court of the district wherein the land
in dispute lies may properly assume jurisdiction. We think that it
is such a suit. The bill in question is one for the partition of
land, wherein plaintiff avers that he is seised, as tenant in
common, of an estate in fee simple, and is in actual possession of
the land described, and after setting forth the interests of the
other tenants in common, and alleging that no remedy at law exists
to enable him to obtain his share of said lands in kind, or of the
proceeds, if sold, and that he is wholly without remedy except in
chancery, prays for the partition of the land, and the segregation
of his own share from that of the others, and incidentally that
certain deeds may be construed, and, if invalid, may be cancelled,
and that he may recover his advances for taxes and expenses. This
is clearly a bill to enforce a claim and settle the title to real
estate.
2. Further objection was made to the jurisdiction of the court
upon the ground that it appeared from the face of the bill that the
title of some of the parties to the land was in dispute; that such
titles must be settled before partition could be made; that the
interests of several of the defendants were adverse to each other,
and that, as some of these defendants were citizens of the same
state, it would raise controversies beyond the jurisdiction of the
circuit court to decide. These objections, however, are not within
the question certified to us for decision, which is that it had
been
"adjudged and decreed that this Court has not jurisdiction over
all of the defendants to this action, because they are not all
citizens and residents of the district in which the land sought to
be partitioned lies, and are not all found in said district at the
time of service of
Page 155 U. S. 75
process, although they are all residents and citizens of other
states than that in which complainants have residence and
citizenship."
The objections do not go to the jurisdiction of the federal
court as such, but to the maintenance of such a bill in any court
of equity in the State of Florida. They are questions proper to be
considered on demurrer to the bill, and, as bearing upon such
questions, the local practice of the state in that regard may
become an important consideration. This Court has held in a
multitude of cases that where the laws of a particular state gave a
remedy in equity -- as, for instance, a bill by a party in or out
of possession to quiet title to lands -- such remedy would be
enforced in the federal courts if it did not infringe upon the
constitutional rights of the parties to a trial by jury.
Clark v.
Smith, 13 Pet. 195;
Holland v. Challen,
110 U. S. 15;
Reynolds v. Crawfordsville Bank, 112 U.
S. 405;
Chapman v. Brewer, 114
U. S. 171;
Cummings v. National Bank,
101 U. S. 153,
101 U. S. 157;
United States v. Landram, 118 U. S.
81,
118 U. S. 89;
More v. Steinbach, 127 U. S. 70.
This suggestion is the more important in view of a statute of
Florida which authorizes a court of equity in partition cases "to
ascertain and adjudicate the rights and interests of the parties,"
which has apparently been held to authorize the court, in its
discretion, to settle the question of title as incidental to the
main controversy or retain the bill and refer it to a court of law.
Street v. Benner, 20 Fla. 700;
Keil v. West, 21
Fla. 508.
These questions, however, are not presented by the record in
this case, and are mentioned only as giving color to plaintiff's
claim that the existence of controversies between different
defendants is not fatal to the jurisdiction of the federal court
upon the allegations of this bill.
(3) The objection that Eliza B. Anderson was alleged in the bill
to be a resident and citizen of the District of Columbia was met by
an amended allegation that Anderson was "a citizen of South
Carolina, now residing in Washington City, District of Columbia,"
and, while this allegation was traversed, it must for the purpose
of this hearing be taken as true.
Page 155 U. S. 76
As this case was appealed under section 5 of the Act of March 3,
1891, upon a question of jurisdiction, no other question can be
properly considered, and the decree of the court below must
therefore be
Reversed, and the case remanded for further proceedings in
conformity with this opinion.
MR. CHIEF JUSTICE FULLER dissented.
