Springer v. . Sheets

20 S.E. 469, 115 N.C. 370

• Court: Supreme Court of North Carolina
• Decided: September 5, 1894
• Status: Published

Opinion

Avery, J.:

The plaintiffs could have brought and maintained in the State Courts any one of these suits growing out of the transactions covered by the complaint:

1. They might have filed their complaint against the trustee Mayo and his cestuis que trust, asking an account or an adjudication of the amount of their claims and a sale to satisfy them, and pay over any balance to the plaintiffs, acting on the assumption that the older mortgage debts were satisfied.

2. They might have instituted an action against the first mortgagees solely for the purpose of effecting a settlement and having the Court formally declare the mortgage debt satisfied.

They had the right to demand that all of these questions he settled by one action, in which, if they should prevail, the older mortgage debts should be declared satisfied, the property sold to pay the later mortgage debts to Mayo, and freed by thé decree of the Court from the clouds of the other claims, and the residue of the purchase-money above the amount required to discharge the debts of the mortgages under the Mayo deed, if any, adjudged to belong to the plaintiffs.

The fact that the plaintiffs and those claiming under the last mortgage. deed have a common interest in showing that the debts secured by the older mortgage deeds have been discharged, makes them none the less adversary parties as to the other matters involved in this controversy. Louisa M. Herring, one of the cestuis que trust secured under the last or Mayo deed, and the trustee L. R. Mayo are and were at the institution of the suit, citizens and residents of the State of North Carolina. Supposing that the plaintiff’s purpose is in good faith to first relieve the property of the cloud which the incumbrance of the first mortgages casts upon it, and to satisfy a purchaser at a foreclosure sale that the junior mortgagee Louisa M. Herring, among others, will be concluded from setting up any further claim, and thereby to secure a large price with possibly the incidental advantage of securing a considerable surplus after discharging debts out of purchase-money, there can be no doubt about the necessity and propriety of making both of these residents of this State parties to this proceeding, in order to obtain the complete relief desired. It is not our province to act upon a suspicion of improper motives, or indeed to impute to parties invoking the aid of the Court anything but good faith, in the absence of plenary proof of a wrongful intent. Wilson v. Township, etc., 151 U. S., 56. Looking at the controversy in this view, and taking the allegations of the complaint to be true, Louisa M. Herring is a necessary adversary party, notwithstanding the fact that she admits the material allegations of the complaint, and it would be manifestly unjust, perhaps ruinous to the interests of the plaintiffs, to have the questions involved adjudicated separately by different tribunals and at different periods of time. Desty . on Removals, §95,1 J, K. Louisa M. Herring is not a’mere formal party, but a beneficiary under the trust deed which the plaintiffs seek to have foreclosed, and the summons was served on her within two days after it was issued on January 17,1894. It is not material, therefore, to discuss the question whether the trustee L. R. Mayo is a necessary party, though he is at least not an improper party. We have one beneficiary under the Mayo mortgage deed whose presence is indispensable, in order to the granting of a conclusive decree, such as that which the plaintiffs seek, and whose interests are, in some respects, antagonistic to both parties to the older deed. It is true that a separate suit might have been prosecuted against Howes & Sheets for an account and cancellation of the mortgage deed, but complete relief could not have been granted in such an action without the presence of the cestuis que trust under the later mortgage deed, if not the trustee, and such being the case, this is not a separable controversy. Hinson v. Adrian, 86 N. C., 61; Jones v. Britton, 102 N. C., 178; Faison v. Hardy, 114 N. C., 429; Fidelity Co. v. Huntington, 117 U. S., 280. The plain principles which make the mortgagees under the Mayo deed proper parties and indispensable to the accomplishment of the end aimed at by the plaintiffs were, first, that they would not be concluded if not parties, and that they were interested in the settlement of the prior incumbrances, upon which their own security depended, and were to that extent adversaries to the other defendants; second, that plaintiffs could not. have complete relief, except by a decree declaring what amount secured by each of the mortgages was still due, and enabling them to ascertain what residue would be left for them as mortgagors. Fidelity Co. v. Huntington, supra.

This suit, therefore, was brought for a complete adjustment of priorities and equities between all of the parties in interest. If the plaintiffs, having the right to elect that they will have such a complete adjustment of all liens and equities affecting certain property, bring in all parties interested in one action instead of suing separately, when some of the defendants are from the same and others from a different State from that in which the plaintiffs reside, a portion of the defendants cannot demand a rearrangement of parties according to residence, because some of the defendants from the State in which the plaintiffs reside admit the material allegations made by the plaintiffs. It, is not a sufficient reason for removal that the plaintiffs might have brought separate suits, or without associating other joint plaintiffs with them. 2 Foster Fed. Pr., sections 382, 384; Wilder v. Va., etc, Co., 46 Fed. Rep , 682.

It would be impossible in our case to rearrange the parties plaintiff and defendant on the one side and the other, so as in that way to show the existence of a separable controversy. If the parties should be classified according to common interest, it would result in placing L. R. Mayo and L. M. Herring, of North Carolina, together with L. Hassell Lapp, of Pennsylvania, with the plaintiffs on the one side as seeking to show that nothing remains due on the mortgages for the benefit of Howes & Sheets, while on the other side would be some of the present plaintiffs, residents and citizens of North Carolina associated with several citizens of Pennsylvania, two of New Jersey, and one each from New York and Florida. So that by no conceivable rearrangement, on the basis of common interest, could the appellants show (as it is essential to show, in order to establish the right to an order of removal) the existence of a separable controversy wholly between citizens of North Carolina on the one side, and citizens of another or other State on the other. Brown v. Truesdale, 138 U. S., 389; Wilson v. Oswego, supra; Desty, supra, 96 O. We are of the opinion that the plaintiffs had a right to elect between two remedies which the law afforded, between combining two causes of action when lawful to do so, or prosecuting separate actions, and between prosecuting the suit alone or joining proper parties plaintiffs with them.

Having chosen to have all parties whose presence is indispensable to obtaining the full measure of relief sought before the Court in one suit, that suit cannot be cut up into two and removed so as to try in piecemeal, against the will and to the possible detriment of the plaintiffs, on the suggestion that some of the indispensable parties, having apparently adverse interests to those of plaintiffs, are really in collusion and making common cause with them. Had the remedy against Howes & Sheets been in nowise connected with or dependent upon the demand against the parties to the Mayo deed, or had no relief been asked that would conclude Mayo, Herring and Lapp, the contention that they were not adversary to the plaintiffs, and that as to Howes & Sheets, there is a separable controversy with citizens of North Carolina, might have been more plausible. Viral v. Continental, etc., 34 Fed. Rep., 228. Even on that supposititious state of facts other difficulties might arise, growing out of the presence of other parties plaintiff from other States joined in the alleged exercise of a right of election by the plaintiffs. Desty, supra, 96 J.

The rule is that, for the purpose of testing the right of removal, the allegations of the bill must be taken as true. Desty, supra, 96 M. We think that, conceding the truth of the allegations of the complaint, the plaintiffs could not get the complete relief demanded against all of the parties whose presence is indispensable to that end, and at the same time so arrange the parties, according to interest, that all on one side would be citizens of different States from those on the other. Desty, supra, 96 I.

In refusing to grant the motion to remove, we think there is No Error.