Jordan v. Marks, 11151.

• Citation: 147 F.2d 800
• Decision Date: 09 March 1945
• Docket Number: No. 11151.,11151.
• Parties: JORDAN et al. v. MARKS et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

147 F.2d 800 (1945)

JORDAN et al. v. MARKS et al.

No. 11151.

Circuit Court of Appeals, Fifth Circuit.

February 15, 1945.

Rehearing Denied March 9, 1945.

Gilbert P. Bullis, of Ferriday, La., for appellants.

Arthur O'Quin, Leon O'Quin, and John M. Madison, all of Shreveport, La., and Allan Sholars and Geo. Gunby, both of Monroe, La., for appellees.

Before McCORD, WALLER, and LEE, Circuit Judges.

LEE, Circuit Judge.

Appellants, twenty-four in number, sued to be recognized as the sole owners and possessors of a tract of land located in Tensas Parish, Louisiana, having a value in excess of $3,000, free from all claims of the appellee Henry M. Marks.

Jurisdiction was based upon diversity of citizenship. The complaint alleged that all plaintiffs were citizens and residents of Louisiana except two, who were citizens and residents of the State of Illinois, and that the defendants were citizens and residents of Mississippi, West Virginia, and Delaware. Upon the motion of the defendant Marks that the suit be dismissed for lack of jurisdiction, the court rearranged the litigants according to their interests, placing two of the plaintiffs, residents of Louisiana, on the side of the defense, and thereupon dismissed the suit for want of jurisdiction. The correctness of this ruling is the only question before us.

In their bill of complaint plaintiffs alleged that they had acquired the property by inheritance from Henry Jordan, and that they had lived upon and cultivated the property up to the time of the filing of this suit; that Marks wrongfully and erroneously claimed ownership of an interest in all or part of the property under a tax sale by the sheriff of Tensas Parish to M. L. Spencer for alleged unpaid taxes of 1930 assessed to Mrs. Bessie S. Goldman; that Spencer acted in said tax sale as attorney and agent of, and for and in behalf of, Britton & Koontz National Bank of Natchez, Mississippi, and thereafter quitclaimed to said bank whatever title he acquired by said tax sale; that G. L. Wooley, receiver of said bank in liquidation, purported to convey to Marks all of the right, title, and interest of said bank by quitclaim without warranty in December, 1935; that in making the purchase from G. L. Wooley, as receiver of the bank, Marks acted as agent of, and for and in behalf of, the plaintiffs, and that the conveyance from the receiver should have been to plaintiffs, but that Marks wrongfully took title in his own name; that Marks contracted and agreed with plaintiffs, prior to the sale from the receiver, to buy in the property for plaintiffs, and plaintiffs believed that he was buying for them and, thus lulled into security, were prevented from taking available means to buy said property from the receiver; that it would be a fraud on the plaintiffs to permit Marks to take title for himself and retain it; that the sale by the receiver was in reality payment of a debt owed by the succession of Henry E. Jordan and some of plaintiffs to the bank, and was so considered and treated by the bank; that plaintiffs were entitled to be relieved of said claim and said debt, and of the claim of Marks under said purported sale, upon reimbursing him the price paid for said claim, with interest and costs; that Marks had granted a mineral lease on a portion of said lands to the Carter Oil Company, a West Virginia corporation, and had granted mineral leases on the remaining lands which by assignment had been transferred to the Tide Water Associated Oil Company and Seaboard Oil Company, Delaware corporations. Each of said corporations were made parties defendant.

In his motion to dismiss, Marks set forth that, as owner of an undivided interest in the property claimed by the plaintiffs and of the other one-half interest therein, otherwise acquired, he had made sales of portions thereof, set forth in marginal note;¹ that twenty of the twenty-four named plaintiffs were citizens of the State of Louisiana, including Narcisse Jordan Robinson and Abe Jordan, Jr.; that Narcisse Jordan Robinson, as owner of lots 2 and 7 by deed from Marks and his author in title to an undivided one-half interest in the mineral rights therein, and Abe Jordan, Jr., as owner of lot 5 by deed from Marks subject to the reservation of an undivided one-half mineral interest, should, as respects the claims and demands relating to lots 2, 5, and 7, be recast as parties defendant with Marks, and that thereupon as between said parties defendant and the plaintiffs save two there would be no diversity of citizenship; that Allan Sholars, R. W. Hair, Winston L. Stokes, E. R. Whitaker, Mose Sexton, and Mamie Bolden Jordan, surviving widow in community and heir and legal representative of Abe Jordan, deceased, holding rights out of appellee and his immediate vendees were necessary and indispensable parties to said action; that all of said parties were citizens and residents of the State of Louisiana, and, as between them and the plaintiffs, there was no diversity of citizenship, and therefore no jurisdiction in the court below.

On the trial of the jurisdictional issue plaintiffs dictated an admission into the record that no judgment rendered against Marks to all or any part of the land in controversy would have any effect on sales and leases listed in the motion to dismiss for the reason that the plaintiffs admitted that all of the sales and leases set forth therein, except those made to parties to the suit, were made to purchasers who bought in good faith on the face of the record, hence, could not be affected by any alleged fraud on the part of Marks even though such fraud was proven.

Plaintiffs later during the hearing of said motion entered a nonsuit against all defendants except Marks.

Plaintiffs' admissions and the nonsuiting of all defendants except Marks were intended to eliminate from controversy any rights acquired in the property by third parties out of Marks, not parties to the suit, and thus dispense with the requirement of their being joined as necessary parties defendant. Whether this was accomplished we find it unnecessary to decide.

Analyzing the allegations of plaintiffs' petition, it is clear that the heirship of plaintiffs set forth therein is not an issue except as tending to fix the undivided interest in the property asserted by each plaintiff. The one issue before the court under the pleadings was the alleged fraud of Marks, in violation of his fiduciary duty as agent of the plaintiffs, in taking in his own name title to property which he was acquiring for them.

Two of the plaintiffs, Narcisse Jordan Robinson and Abe Jordan, Jr., four and five years after Marks had acquired the property, as shown by the admissions, acquired from him title to portions thereof. Their interests lie in protecting the property so acquired, and, upon the basis of the proof made on the trial of the jurisdictional issue,² it is clear that, having acquired by purchase from Marks several years subsequent to the alleged fraud practiced upon them with respect to the property, they waived any right that they might previously have had against Marks based upon his alleged fraud. As the plaintiffs were suing for all of the property, including the portions conveyed to two of the plaintiffs by Marks under recorded deeds, it is clear that the interests of these two plaintiffs are on the side of Marks to protect the title acquired by them from him. To recover all of the property, plaintiffs must set aside the sales of portions of the property from Marks to two of the plaintiffs. In no other way may they recover the entire property sued for, even though fraud be established. Under such condition, the two plaintiffs holding title from Marks should be recast as parties defendant with him; when recast, as between the parties defendant and the remaining plaintiffs save two, there is no diversity of citizenship and no basis for jurisdiction in the Federal court.

"The mere fact that certain parties who seek relief against each other make common cause against a third person who is also a party does not require them to be aligned as parties plaintiff." 35 C.J.S., verbo, Federal Courts, § 59, page...