Mitchell v. Smale

• Decision Date: 11 May 1891
• Citation: 11 S.Ct. 819,35 L.Ed. 442,140 U.S. 406
• Parties: MITCHELL v. SMALE et al
• Court: U.S. Supreme Court

140 U.S. 406

11 S.Ct. 819

35 L.Ed. 442

MITCHELL v. SMALE et al.

May 11, 1891.

Wm. Prescott, Wm. M. Booth, Jas. S. Harlan, and S. S. Gregory for plaintiff in error.

John I. Bennett and W. C. Goudy, for defendants in error.

BRADLEY, J.

The decision of this case depends upon the same general principles which have just been discussed in the case of Hardin v. Jordan, ante, 808, the two cases being in all essential respects much alike, both of them relating to land on the margin and under the waters of Wolf lake. But before adverting to the supposed distinction between them, it is necessary to examine a question of jurisdiction. The action was ejectment, and was commenced in the circuit court of Cook county, by Mitchell, the plaintiff in error, against three defendants, Jabez G. Smale and John I. and Frank I. Bennett, and summons was duly served on them. The Bennetts, being attorneys, appeared specially for Conrad N. Jordan, and moved that he be substituted as sole defendant. The motion was made upon an affidavit of Jordan that the Bennetts had no interest, having conveyed the property to him before the suit was commenced, and that Smale was a mere tenant under him, (Jordan,) and had no other interest. The court denied the motion, and thereupon Jordan, on his own motion, was admitted to defend the cause as landlord and as co-defendant. Afterwards, and in due time, Jordan filed a petition under the act of 1875 for the removal of the cause into the circuit court of the United States, alleging as a ground of removal that the plaintiff was a citizen of Illinois, and that he (Jordan) was a citizen of New York, and sole owner of the property, and that the sole controversy in the cause was between him (Jordan) and the plaintiff, stating the facts previously affirmed in his affidavit as to the want of interest in the Bennetts, and the tenancy of Smale. Objections to the removal being made by the plaintiff, Jordan asked and obtained leave to amend his petition, and filed an amended petition setting out, in addition to the facts stated in his original petition, the following matter, to-wit: '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 the government of the United States in 1874, embracing a part of said section twenty, (20,) t'p 37 N., R. 15 E., 3d P. M., in Illinois, and partents issued under said survey under which your petitioner deraigned title in fee-simple before the commencement of said suit, and in him then 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 B. 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 position of the public lands of the United States, 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 and void, and in violation of the contract rights of said Mitchell under the laws of the United States; that by virtue of the alleged ownership of said fractional tract described in the declaration he, the plaintiff, under and in pursuance 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 thereunder. This petitioner claims title in fee to said lands other than said fractional tract by virtue of said survey of 1874, said pten ts, 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 entitled 'An act to determine the jurisdiction of the circuit courts of the United States, and to regulate the removal of causes from the state courts, and for other purposes,' in force March 3, 1875, for that cause alone.'

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 him and the plaintiff, without the presence of the others as parties in the cause. 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. This was done in the case of Ayers v. Watson, (113 U. S. 594, 5 Sup. Ct. Rep. 641;) but no objection to the removal on that ground was made, though objections were made on other grounds, which were not sustained by the court. Still, as the fact appeared on the record, if it had been sufficient to divest the circuit court of jurisdiction altogether, this court could hardly have omitted to pass upon it. We do not see that the statute of Illinois would make any difference in the result. It merely declares that in ejectment the occupant of the land shall be named as defendant, and that all other persons claiming title or interest to or in the same may be joined as defendants. Starr & C. St. p. 981, § 6. This is merely declarative of the commonlaw rule, and makes no change in the char acter of the action or the principles of procedure therein True, it was decided in the case of Phelps v. Oaks, 117 U. S. 236, 6 Sup. Ct. Rep. 714, that the tenant is a proper party, and that, if the cause is removed by reason of his citizenship, the circuit court will not be deprived of jurisdiction by the subsequent admission of the landlord as a defendant, though a citizen of the same state with the plaintiff. But this does not prove that a landlord may not become the primary and only contestant, where the tenant's interests are subordinated to and made dependent on his.

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. We have held that a defendant cannot make an action several which the plaintiff elects to make joint. Little v. Giles, 118 U. S. 596, 7 Sup. Ct. Rep. 32. But, be this as it may, we think that the additional ground of removal, stated in the amended petition, was sufficient to authorize the removal to be made. It states 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 groun 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 amendment was properly allowed, and no valid objection...