Having stated the case as above,
SEVERENS, District Judge,
delivered the opinion of the court.
The first question to be disposed of is that which arises upon the complainant’s contention that the order of removal from the state court, made by the circuit court of the United States, upon the petition of the defendant, was unauthorized and void, for the reason that the matter in controversy did not exceed in value the sum of $2,000, exclusive of interests and costs. . In support of this conten^ [563]*563tion, it is urged by the complainant that, in truth, less than the sum of $2,000 was in controversy, and that that fact was made to appear by the stipulation of the parties in regard to the facts made and filed after the removal of the case, preliminary to tbe hearing and for the purposes thereof. If it were competent to try the question of jurisdiction thus raised by the test of this stipulation, the complainant's position would seem to be well founded. But it is the well-established rule that the question whether a case is removable or not is to be determined by the claim of tbe complainant, as shown by 'the record at the time of filing the petition. It is that only which the court can take cognizance of and base its action upon. Under the practice prescribed by the statute, there is no trial and determination upon extrinsic proof of the question as to how much is the actual value of the matter claimed. Gaines v. Fuentes, 92 U. S. 10: Schunk v. Moline, Milburn & Stoddart Co., 147 U. S. 500, 13 Sup. Ct. 416; Dickinson v. Trust Co., 64 Fed. 895.
Nor is the jurisdiction defeated upon its subsequently appearing upon the trial, or by the complainant’s concession, that she was not entitled to so much as was claimed. Equally unfounded is the argument made by the appellee in support of the jurisdiction of the court below, founded, as it is, upon tbe fact that it is shown by the trust, deed of June 17, 1889, that it provided that, in case of suit to enforce collection or protect the security, an attorney’s fee should accrue and become a lien upon tbe property. Prom this it is argued that the attorney’s fee became at once due upon the appearance of the attorney to defend this suit, and, added to the $2,000 of the note for that sum, would make more than the requisite sum, the1 oilier note for $120 not being taken into the account. But no mention of any such provision for an attorney’s fee, or of any claim for it, appears in the record as it was exhibited at tbe time of the removal. That appeared later on, when the trust deed was brought into evidence by the stipulation of the parties.
Recurring to the bill filed by tbe complainant in the state court, it was. among other things, prayed that, upon grounds stated in the bill, “the lien of both of said deeds of trust (referring to those of January 5, 1889, and June 17, 1889, respectively) should be released.” “and both of the same be canceled.” In the stating part of the bill, it was alleged that the mortgage executed by Mrs. Kersbner to the defendant on June 17, 1889, upon the north 47-| feet (to which the plaintiff now claims title), was for the sum of $2,120,— $2,000 in one note, and $120 in another; and there is no allegation of the fact which now appears, that $120 of this has subsequently been paid. It further appeared from the bill that, as the complainant alleged, the defendant claimed the right and was seeking to cast the whole burden of the debt upon tin; complainant’s land. It was alleged in the answer that: more than $2,000, besides interest and costs, was due upon this note. The petition for removal also stated that the amount in dispute exceeded $2,000 in value besides interests and costs, and, as we have shown, the pleadings support this averment. It is true that part of the relief prayed by the bill [564]*564was for an injunction to restrain the enforcement of the deed of trust of June 17, 1889, by a sale thereunder of the north 47-£ feet for the satisfaction of the note of $2,000; but this was incidental to the principal relief sought, and was not the measure of the whole controversy. It is not necessary to inquire in this connection into the status of the other deed of trust executed on January 5, 1889, or the kind of relief sought in reference to it. It is evident that, as the case stood upon the record at the time of the removal, the amount involved was sufficient in that regard to warrant the removal, and give the court below jurisdiction- thereon.
No question was raised in regard to the right of removal until after the stipulation was entered into agreeing upon the facts for the purposes of the trial. The fact that at that time such a stipulation was made as is therein recited, “in order to save unnecessary cost and trouble,” could not be made to retroact and prove that at the time of the removal the complainant did not claim what in her pleadings she asserted a right to, and upon the ground of which she prayed coextensive relief. Various reasons are likely to occur during the progress of litigation which induce a change in the expectations of the parties, and often, for the saving of cost and trouble, concessions are made and compromises reached. Here the case was removable on account of the diverse citizenship of the parties, provided the dispute involved the sum of $2,000 besides interests and costs. The pleadings show that the requisite amount was in controversy, and furnish sufficient ground for the allegation in that particular in the petition. There is no room for any suggestion that the complainant’s claim was collusively or otherwise fraudulently made for the purpose of giving jurisdiction to the United Spates court, and the consequences of such an incident are not involved. We are therefore of opinion that there was no ground upon which the circuit court should have decided “that the cause was improperly removed,” and that the complainant’s motion to remand was properly denied. It appears from the bill and the exhibit thereto attached that the defendant was proceeding to sell the land of the complainant under the trust deed of June 17, 1889, for the payment of the $2,000 note, and the interest thereon from January 5, 1891. The case has been argued here by both sides upon the assumption that the interest could not be included in estimating the value of the matter in dispute. We express no opinion upon the correctness of this assumption in a case where interest is stipulated for by the terms of the contract, as distinguished from such interest as may be awarded as damages for the withholding of a sum due, for the reason that we sustain the jurisdiction upon another ground.
Coming, then, to the merits of the case, it is observable that the facts are somewhat complicated; but, gleaning out those which are material and decisive of the questions presented, it will be convenient to consider first the state of things when the complainant purchased from Coulter and acquired' the title to the land she claims, being the north 47-J feet, which was on December 12, 1889. It will be seen from the preceding statement of facts that Mrs. [565]*565Kershner had, on the 5th day of January preceding, executed a trust deed of the south 92£ feet and other property to Clark, to secure three notes, aggregating $2,240; and on June 17th, in order to obtain a release of some of the other property, she executed a deed of trust to Clark of the north 47^ feet, also to secure two of the above notes, aggregating $2,120, the third for $120 having been paid.
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Having stated the case as above,
SEVERENS, District Judge,
delivered the opinion of the court.
The first question to be disposed of is that which arises upon the complainant’s contention that the order of removal from the state court, made by the circuit court of the United States, upon the petition of the defendant, was unauthorized and void, for the reason that the matter in controversy did not exceed in value the sum of $2,000, exclusive of interests and costs. . In support of this conten^ [563]*563tion, it is urged by the complainant that, in truth, less than the sum of $2,000 was in controversy, and that that fact was made to appear by the stipulation of the parties in regard to the facts made and filed after the removal of the case, preliminary to tbe hearing and for the purposes thereof. If it were competent to try the question of jurisdiction thus raised by the test of this stipulation, the complainant's position would seem to be well founded. But it is the well-established rule that the question whether a case is removable or not is to be determined by the claim of tbe complainant, as shown by 'the record at the time of filing the petition. It is that only which the court can take cognizance of and base its action upon. Under the practice prescribed by the statute, there is no trial and determination upon extrinsic proof of the question as to how much is the actual value of the matter claimed. Gaines v. Fuentes, 92 U. S. 10: Schunk v. Moline, Milburn & Stoddart Co., 147 U. S. 500, 13 Sup. Ct. 416; Dickinson v. Trust Co., 64 Fed. 895.
Nor is the jurisdiction defeated upon its subsequently appearing upon the trial, or by the complainant’s concession, that she was not entitled to so much as was claimed. Equally unfounded is the argument made by the appellee in support of the jurisdiction of the court below, founded, as it is, upon tbe fact that it is shown by the trust, deed of June 17, 1889, that it provided that, in case of suit to enforce collection or protect the security, an attorney’s fee should accrue and become a lien upon tbe property. Prom this it is argued that the attorney’s fee became at once due upon the appearance of the attorney to defend this suit, and, added to the $2,000 of the note for that sum, would make more than the requisite sum, the1 oilier note for $120 not being taken into the account. But no mention of any such provision for an attorney’s fee, or of any claim for it, appears in the record as it was exhibited at tbe time of the removal. That appeared later on, when the trust deed was brought into evidence by the stipulation of the parties.
Recurring to the bill filed by tbe complainant in the state court, it was. among other things, prayed that, upon grounds stated in the bill, “the lien of both of said deeds of trust (referring to those of January 5, 1889, and June 17, 1889, respectively) should be released.” “and both of the same be canceled.” In the stating part of the bill, it was alleged that the mortgage executed by Mrs. Kersbner to the defendant on June 17, 1889, upon the north 47-| feet (to which the plaintiff now claims title), was for the sum of $2,120,— $2,000 in one note, and $120 in another; and there is no allegation of the fact which now appears, that $120 of this has subsequently been paid. It further appeared from the bill that, as the complainant alleged, the defendant claimed the right and was seeking to cast the whole burden of the debt upon tin; complainant’s land. It was alleged in the answer that: more than $2,000, besides interest and costs, was due upon this note. The petition for removal also stated that the amount in dispute exceeded $2,000 in value besides interests and costs, and, as we have shown, the pleadings support this averment. It is true that part of the relief prayed by the bill [564]*564was for an injunction to restrain the enforcement of the deed of trust of June 17, 1889, by a sale thereunder of the north 47-£ feet for the satisfaction of the note of $2,000; but this was incidental to the principal relief sought, and was not the measure of the whole controversy. It is not necessary to inquire in this connection into the status of the other deed of trust executed on January 5, 1889, or the kind of relief sought in reference to it. It is evident that, as the case stood upon the record at the time of the removal, the amount involved was sufficient in that regard to warrant the removal, and give the court below jurisdiction- thereon.
No question was raised in regard to the right of removal until after the stipulation was entered into agreeing upon the facts for the purposes of the trial. The fact that at that time such a stipulation was made as is therein recited, “in order to save unnecessary cost and trouble,” could not be made to retroact and prove that at the time of the removal the complainant did not claim what in her pleadings she asserted a right to, and upon the ground of which she prayed coextensive relief. Various reasons are likely to occur during the progress of litigation which induce a change in the expectations of the parties, and often, for the saving of cost and trouble, concessions are made and compromises reached. Here the case was removable on account of the diverse citizenship of the parties, provided the dispute involved the sum of $2,000 besides interests and costs. The pleadings show that the requisite amount was in controversy, and furnish sufficient ground for the allegation in that particular in the petition. There is no room for any suggestion that the complainant’s claim was collusively or otherwise fraudulently made for the purpose of giving jurisdiction to the United Spates court, and the consequences of such an incident are not involved. We are therefore of opinion that there was no ground upon which the circuit court should have decided “that the cause was improperly removed,” and that the complainant’s motion to remand was properly denied. It appears from the bill and the exhibit thereto attached that the defendant was proceeding to sell the land of the complainant under the trust deed of June 17, 1889, for the payment of the $2,000 note, and the interest thereon from January 5, 1891. The case has been argued here by both sides upon the assumption that the interest could not be included in estimating the value of the matter in dispute. We express no opinion upon the correctness of this assumption in a case where interest is stipulated for by the terms of the contract, as distinguished from such interest as may be awarded as damages for the withholding of a sum due, for the reason that we sustain the jurisdiction upon another ground.
Coming, then, to the merits of the case, it is observable that the facts are somewhat complicated; but, gleaning out those which are material and decisive of the questions presented, it will be convenient to consider first the state of things when the complainant purchased from Coulter and acquired' the title to the land she claims, being the north 47-J feet, which was on December 12, 1889. It will be seen from the preceding statement of facts that Mrs. [565]*565Kershner had, on the 5th day of January preceding, executed a trust deed of the south 92£ feet and other property to Clark, to secure three notes, aggregating $2,240; and on June 17th, in order to obtain a release of some of the other property, she executed a deed of trust to Clark of the north 47^ feet, also to secure two of the above notes, aggregating $2,120, the third for $120 having been paid. On the 23d of the same month, she conveyed, with covenant of warranty, the north 47-J feet to Harley. This, as between Mrs. Kershner and Harley and those succeeding to his rights, had the effect to make the south 92J feet, the primary fund for the payment of the $2,120. Gill v. Lyon, 1 Johns. Ch. 447; Clowes v. Dickenson, 5 Johns. Ch. 235; Cooper v. Bigly, 13 Mich. 463; 1 Washb. Real Prop. 570. This is the effect of the generally prevailing rule on the subject, with which the decisions in Tennessee are now in accord. Wright v. Atkinson, 3 Sneed, 585; Thompson v. Pyland, 3 Head, 537. These cases appear to overrule the previous decision in Jobe v. O’Brien, 2 Humph. 34. The title to the north ill feel, Hum, devolved by mesne conveyances, with covenant of warranty, to the complainant, December 12, 1889. At the time of Swr purchase, she had constructive notice of the deed of trust to Clark of June 17, 1889, it having been registered August 23, 1889. The others in the line of title from Mrs. Kershner had like constructive notice at the time of the respective conveyances to them. The complainant alleges that she had no actual notice, and this the defendant admits; but she avers that Clark, when he took the deed of trust of the north 47 feet, promised Mrs. Kershner that he would not put the instrument on record. This averment is not proven, however, and, if it were, it is difficult to see how the plaintiff could fake advantage of it. It wa.s a personal covenant, not running with the land, and, if broken, would render Clark liable only to Mrs. Kershner, for such daiuages as she could show she had sustained. The complainant therefore acquired title to her land, subject to the burden of the deed of trust to Clark of June 17, 1889, for the security of the two notes for $2,120, the payment of which was secured by a former deed of trust of January 5, 1889, covering other property, and which, by the operation of Mrs. Kershner’s warranty deed to Harley, was made in equity the primary fund for the payment of the debt. This was the condition of affairs when, on July lb 1890, Mrs. Kershner executed a second deed of trust to Grayson of the south 92¿ feet, to secure another indebtedness of $1,256. Default having been made in the payment of this latter indebtedness, Grayson proceeded to sell, under his trust deed, the equity of redemption in that description of land, that being all the interest he, bad power to sell. Clark became the purchaser for the sum of $800. It. is claimed that inasmuch as this south 92 feet had become primarily liable for the whole debt secured by the original trust deed to Clark, to the exoneration of the north 42 feet, Clark must be deemed to have purchased at the sale such an interest in the land as would remain after its appropriation pro tanto to the satisfaction of the whole debt secured by the first trust deed; that [566]*566it was equivalent to an assumption by Clark of that debt if it had belonged’ to another person; and that, as he was the owner of the debt’ himself, it was merged and satisfied. This is a more definite statement of the process by which the result contended for is reached than that stated by counsel for the appellant^ but such are the grounds upon which the contention might be supported if it were tenable in the circumstances of this case. And it must be confessed there would be much plausibility in it were it not for what supervened. Tice v. Annin, 2 Johns. Ch. 125; Clowes v. Dickenson, 5 Johns. Ch. 235; McKinstry v. Curtis, 10 Paige, 503; Booker v. Anderson, 35 Ill. 66.
Mrs. Kershner, feeling herself aggrieved by the sale, took proceedings to have it set aside. She had such an interest in the subject, by reason of her ownership of the land sold, and her personal obligation secured by the deed of trust, as gave her a right to challenge the sale if there was reason for it. She was not bound to associate the complainant with her in the controversy unless she chose to do so, nor was such controversy subject to the domination of another. If the complainant had any rights to be protected, she was at liberty to pursue the proper remedy. There is an allegation in the bill that Mrs. Kershner undertook by that suit to pi-otect the complainant, but there is no proof of such an agreement. The matter was compromised by an arrangement consented to by the parties concerned in the sale by a complete revocation of the transaction and a replácement of the whole matter in statu quo. The complainant had nothing to do with the sale. Her rights were not affected by it, and she had no ground on which she could dispute the right of the parties whose interests were directly involved to seek and tp award redress for any wrong complained of, and which did not impair any right possessed by her at the time of the transaction which they undid. The complainant alleges in her bill that:
“It was announced at the said sale, by the said trustee and the said Clark, that the said property was being sold subject to the said first deed of trust herein, and that the same was a prior lien to the amount of said debt and interest. This was done to prevent said property selling for its real value, and in order that the said Clark might get the same for about one-fourth of .its actual value, it being worth at least three thousand dollars ($3,000).”
As the complainant was not bound by what was done at the sale, if it infringed her rights, so neither did she acquire any vested right thereby. She retained her original rights, and was in the same position as before to vindicate them. All that could be claimed for her was that she had the right in equity to have the land covered by the first trust deed to Clark exhausted before recourse should be had to the land owned by her. But this right appears, from the admissions of the parties, to have been conceded to her. The defendant, Clark, at the same time he advertised the complainant’s land for sale under the trust deed of June 17, 1889, also advertised the other land for sale under the trust deed of January 5, 1889, and fixed the day of sale of the latter two days earlier than the former. There would be no doubt that, if both parcels had been included in [567]*567one mortgage, the sale of both could have properly been advertised for the same day. There is no substantial difference between the ease supposed and the present. The whole question is one which concerns the order of sale. In both cases the debt would be satisfied and the power extinguished if the property first exposed to sale brought enough to pay the debt. It further appears from the stipulation of the parties that on the 15th of August, 1893, the south 921 feet, being the land included in the first trust deed to Clark, was in fact sold pursuant to the advertisement for $400. It would seem that that was much less than its value, hut that was a matter which the complainant was bound to see to. There is nothing to show, other than the small price which the land brought, that the laud was not fairly sold, and that of itself is not sufficient to impeach it. The proceeds have been credited upon the debt. It may be that the complainant may suffer a misfortune from having too large a burden of the debt fall upon her land; but, if so, it is in consequence of her own negligence, and she has no right to complain.
We have not lost sight of the fact that it is stated in the Mil that the first trust deed to Clark included a house and lot on Cameron Hill, and it so appears from the trust deed which is made part, by reference, of the stipulation of the parlies in regard to the facts. There is nothing to show whether that was ever released or not, or whether that property has any substantial value. At all events, the assignment of errors takes no notice of it, nor have counsel for the appellant, in I heir brief or argument, made any reference to it. In these circumstances, we shall also disregard it.
The decree of the circuit court must be affirmed.