Presbyterian Society vs. Goodrich Trans. Co. of the defendant, issues are raised touching the issuance of the policy of insurance by the plaintiff insurance company, the amount of the insurance, the payment thereof and the assignment of the claim of the plaintiff society to its coplaintiff to the extent of the insurance, the questions thus raised make a controversy between the plaintiff insurance company and the defendant, in which the plaintiff society is not interested. But those, I think, are rather branches or incidents of the actual controversy, than the vital issues which constitute the controversy. And moreover, it is more than questionable whether they are questions in which the plaintiff and defendant who are citizens of different states are alone interested. Cases having a bearing upon the question of the right of removal as it arises in the case at bar, are: Merchants' Nat. Bank vs. Thompson, 4 Federal Reporter, 876, and Bailey vs. The New York Savings Bank, 18 Blatchford, 77. On the whole, my opinion is, that there is not presented here, within the meaning of the second clause of section two, of the act of 1875, a controversy which is wholly between citizens of different states, and which can be fully determined as between them without the presence of the plaintiff, who is a citizen of the same state with the defendant. Since the foregoing opinion was written, the decisions of the Supreme Court of Wisconsin, in Pratt vs. Radford' and of the Supreme Court of the United States in Barney vs. Latham,' have been promulgated. In the first named case it is held that in a suit like that at bar, the insurance company and the owner of the property must join in bringing the action as having a united interest in the cause of action, and in the recovery sought. The decision in Barney vs. Latham does not, as I conceive, affect the conclusion reached in the 152 Wisconsin, 114. Presbyterian Society vs. Goodrich Trans. Co. present case, because here there is no such separable controversy between citizens of different states as brings the case within the principle and scope of that decision. Motion to remand granted, and order accordingly. NOTE. CONTROVERSY.-To determine whether the suit involves a controversy which is wholly between citizens of different states, the court will classify the parties according to their actual interests. Sayer vs. LaSalle & Peru Gas Light and Coke Co., 9 Bissell, 372; Burke vs. Flood, 6 Sawyer, 220; Removal Cases, 100 United States, 457. And if there is such a controversy, either one or more of the plaintiffs or defendants actually interested therein, may remove the entire suit. Barney vs. Latham, 103 United States, 205. Such controversy must exist when the petition is filed. The Chicago, etc. R. R. Co. vs. Macomb, 17 Blatchford, 871. And if it appears to the court at any time that the suit does not involve a removable controversy, it will be dismissed or remanded. Ryan vs. Young, 9 Bissell, 63. The controversy must consist of a separate and distinct cause of action in respect to which all the necessary parties on one side are citizens of different states from those on the other. Hyde vs. Ruble, 104 United States, 407. But a defendant who is a proper, though not an indispensable, party to the controversy, will not affect the right of removal. Barney vs. Latham, 103 United States, 205. A removal of one of the controversies in a suit takes the entire suit. Farmers' L. & T. Co. vs. C., P. & S. W. R. R. Co. 9 Bissell, 133; Barney vs. Latham, supra. It is not necessary that there should have been an answer or demurrer filed before removal, in order to create a controversy. Bailey vs. American Central Ins. Co. 2 McCrary, 413; contra, Stanbrough vs. Griffin, 52 Iowa, 112. If judgment has been rendered against some of the defendants and appeal taken in the State Court, the other defendants cannot remove the cause then, for the controversy is an entire thing and cannot be removed at all unless removed as to all. Mooney vs. Agnew, 2 McCrary, 89. A proceeding to condemn land for railroad purposes under the right of eminent domain, is a suit of a civil nature, and is removable. Warren vs. Wisconsin Valley R. R. Co., 6 Bissell, 425; so also, an action by an alleged legatee under a lost will, to establish the will. Southworth vs. Adams, 9 Bissell, 521. In an action for a tort, the controversy is between the plaintiff and all of the defendants, and a part of them cannot remove, though part may have been sued separately. Tuedt vs. Carson, D. Minnesota, 1882, per Treat, J., 13, Federal Reporter, 353. And where the defendants under a state statute call in warranty other parties, the controversy is still between the original defendants and the Presbyterian Society vs. Goodrich Trans. Co. plaintiff. Ellerman vs. New Orleans, etc. R. R. Co. 1 Woods, 120. Garnishees in an attachment suit are not parties to the controversy between the plaintiff and the defendant. Cook vs. Whitney, 3 Woods, 715, and the controversy between them and the plaintiff, as to their indebtedness to the defendant in the principal action, is only incidental, and is not removable. Pratt vs. Albright, post, page - 511 Where the widow sues a bank to recover money deposited by the deceased, and which the executor claims, joining the executor as defendant, the bank is an indispensable party to the controversy between the widow and executor as long as it holds the money. Bailey vs. New York Savings Bank, 18 Blatchford, 77. If several attachment creditors are joined as defendants in a replevin suit, the controversy as to the ownership of the property, involves all of the defendants. Temple vs. Smith, 2 McCrary, 226. In a suit by a town against certain state and county officers and the holders of its bonds, to restrain the collection of taxes for their payment, and to declare them void, the real controversy involves only the town and the holder of the bonds. Aroma vs. Auditor, 9 Bissell, 289; Harter vs. Kernochan, 103 United States, 562. Where a bondholder has filed a bill in a foreclosure suit against a railroad company and some of its officers and other defendants, creditors, etc., involving the validity of the mortgage and charging fraud by the officers, there is a controversy wholly between the complainant and the company and its officers. Osgood vs. Chicago, D. & V. R. R. Co. 6 Bissell, 331; but a subsequent incumbrancer cannot remove the cause. Donohoe vs. Mariposa Land Co. 5 Sawyer. 163; neither can an intervening creditor who claims that nothing is due under the mortgage, and seeks to charge the property with the payment of his judgment. Chicago vs. Gage, 6 Bissell, 467. In a suit to enjoin the foreclosure of, and to set aside, a trust deed, and cancel the notes thereunder on the ground that they have been paid, the controversy is wholly between the mortgagor and the holder of the notes and the citizenship of the trustee has no effect. Chester vs. Wellford, 2 Flippin, 347; but in case of a bill to remove cloud from title, the holder of the adverse legal title is an indispensable party. Steinkuhl vs. York, 2 Flippin, 376; so where the suit attacks the validity of a trustee's sale under a trust deed, and seeks to redeem, the trustee is a necessary and not a formal party. Evans vs. Faxon, 11 Bissell; and, also, if the complainant claims to have rights superior to those of the trustee, and the holder of the notes, and seeks to subordinate the latter. Mitchell vs. Tillotson, per Harlan J., to appear in 11 Bissell; and in a suit to set aside a will, where the will provides that the executors shall take a certain sum in trust, and pay the proceeds therefrom as indicated, the executors are indispensable parties to the controversy. Price vs. Foreman, per Harlan J., to appear in 11 Bissell. And when the bill is filed Presbyterian Society vs. Goodrich Trans. Co. to enforce specific performance of a contract for sale of land and charging that the land has since been fraudulently conveyed, there is only one controversy, to which both defendants are parties. Tyler vs. Hagerty, 2 Flippin, 257; but if a creditor's bill charges that the judgment debtor fraudulently conveyed one piece of property to A, and another piece to B, there is a removable controversy between A and the complainant. Sheldon vs Keokuk Northern Line Packet Co. 9 Bissell, 307. Under a bill to establish title, if there are several defendants each claiming under a separate title, and the court is empowered under the state statntes to decide which one has the real and true title, they are all parties to one controversy. Carraher vs. Brennan, 7 Bissell, 497. And mortgagees under an adverse title cannot remove a suit to remove cloud from title. Steinkuhl vs. York, 2 Flippin, 376. An incidental controversy which has arisen during the progress of the suit in the state court cannot be removed. Ellis vs. Sisson, to appear in 11 Bissell; nor can a controversy between a contractor and a receiver appointed by the state court. Buell vs. C., E. & Q. Construction Co. post, page 555 See also, Reporter's note to Sheldon vs. Keokuk Northern Line Packet Co. 9 Bissell, 807.-[REPORTER. Heermans vs. Schmaltz. JOHN HEERMANS vs. FREDERICK SCHMALTZ et al. CIRCUIT COURT-EASTERN DISTRICT OF WISCONSIN-MAY, 1881. 1. CREATION OF EXPRESS TRUSTS-WISCONSIN STATUTES.-A conveyance of lands in trust to rent and sell the same and pay the proceeds to the grantor during his life, and after his death, to certain other persons named in a supplementary writing, will create a lawful trust, under the fifth subdivision of section 2081, Revised Statutes of Wisconsin. 2. CONSTRUCTION OF SUPPLEMENTARY INSTRUMENT. — The original conveyance and supplementary writing will be construed together as one instrument. 3. DEFINITENESS OF TRUST-DESIGNATION OF CLASS.-The fact that part of the beneficiaries are designated as a class, instead of naming them individually, will not render the trust void, on the ground that the trust is not fully expressed and clearly defined. 4. Distinction between Wisconsin and New York statutes concerning trusts considered. 5. TITLE BY ADVERSE POSSESSION.—In order to gain title by adverse possession in Wisconsin, the party must have had possession under a claim of title, whether founded upon a written instrument or not, exclusive of any other right. 6. PRESUMPTION.-Evidence of adverse possession is always to be construed strictly, and every presumption is to be made in favor of the true owner. 7. SAME-ENTRY UNDER CONTRACT-ESTOPPEL.-A party who enters into possession of lands under a contract to purchase, is estopped from asserting a paramount title by adverse possession, unless there has been express notice to the vendor of an intention to claim adversely, or a surrender of the possession flowing from the original entry, prior to the time of the adverse possession begianing to run. 7. EVIDENCE-VERBAL ADMISSIONS-ADMISSIBILITY AFTER DEATH.Verbal admissions by the adverse claimant that he entered into possession under a contract, and that he had never paid anything on the same, are not rendered inadmissible in evidence after his death,by sections 4069 and 4070, Revised Statutes of Wisconsin. Jenkins, Elliott & Winkler, for plaintiff. |