The opinion of the Court was delivered by
Fenner, J.
The plaintiff, as executor of Leroy A. Stafford, deceased, of the parish of Rapides, La., brings this action against Marshall EL Twitchell and Jesse G-. Steele, of the parish of Red River, La., Mrs. Elizabeth Twitchell, of the State of Yermont, and Marshall EL Twitchell, Jr., a minor represented by the last named defendant as guardian, appointed in Yermont and recognized by the courts of this State.
The petitioner represents that the succession of L. A. Stafford was owner of 1517 68-100 acres of land, situated in Red River parish, and described in the petition; that thesaid lands are now in possession of the defendants who claim to be owners thereof, under a certain tax sale made on the 6th of January, 1874, by which they were adjudicated to Marshall H. Twitchell and Jesse G. Steele. Steele subsequently sold his interest in 320 acres of the land to Twitchell; and Twitchell, after this, sold his whole interest in the land to his mother, Mrs. E. Twitchell, whioh accounts for her presence as defendant. The minor is the son of Marshall H. Twitchell, who was married at the date of the tax-purchase, and whose wife has since died, and the minor is made a party as the representative of her community interest.
The petition alleges that the tax sale was a nullity for various [522]*522reasons therein set forth, and prays that the same be decreed null and void, that petitioner’s title be recognized and enforced,- and for a judgment for rents and revenues.
The foregoing is a sufficient statement of the issues, for the purpose of determining an application for removal to the Federal court, which must be first determined, because it involves our jurisdiction in the case. One of the defendants, Mrs. Twitchell, filed a petition praying for the removal of the cause to the United States Circuit Court. The allegations of this petition'are substantially as follows:
1st. That she is a party defendant, and that her interest involved therein exceeds two thousand dollars;
2d. That she is, and was at the date of suit, a resident and citizen of Vermont, and that the plaintiff is, and was at the said date, a citizen of Louisiana;
3d. That by virtue of sections 639, 640 and 670 of the U. S. Revised Statutes, and of the act of Congress of 1875, she is entitled to have the cause removed;
4th. That “ the grounds on which she bases her right and claim to the removal are that she verily fears and believes, and has good ground to fear and believe, that from prejudice or local influence, one or both, that now exists and has existed against her in the said parish of Red River, La., and against her vendor M. H. Twitchell, therein, she will not be able to obtain justice in said State court or courts.”
Her application was timely and accompanied with tender of the requisite bond; and she prayed for the removal of the suit.
The question to be determined is whether her petition presents sufficient grounds for removal under any of the laws referred to.
Sections 640 and 670 of U. S. Rev. Statutes have no conceivable application to case.
Section 6Ó9 contains three paragraphs setting forth distinct grounds for removal, as follows:
First. This embodies the provision of the judiciary act of 1789, and applies only where the suit is exclusively between a citizen of the State where it is brought and a citizen of another State. Such is not the case at bar, where the party plaintiff and some of the defendants are citizens of the same State.
Second. This embodies the provision of the act of 1866. It is applicable to a suit like the present, where the plaintiff is a citizen of the State of the forum, and the defendants are, some of them, citizens of the same State, and another is a citizen of another State. The latter is only authorized to remove, when “there can be a final determination of the controversy, so far as concerns him without the presence of the other defendants as parties in the cause;” and, even in that case, [523]*523he is not authorized to remove the suit, but only the particular controversy between himself and plaintiff, without prejudice to the latter’s right to proceed with his suit in the State court as against the other defendants. The petition for removal cannot be sustained under this provision, for several reasons, viz: (1), it does not set forth the essential allegation on which the right rests; (2), it prays for the removal of the whole suit and not of the particular controversy between plaintiff and the petitioning defendant; (3), the grounds on which she expressly bases her right to removal, viz: “local prejudice or influence,” have no application under this provision; and (4) from the nature of the cause, being a suit to declare null the common title of the several defendants to lands held by them in indivisión, and to establish the title of plaintiff to the whole of said lands as against all the defendants, there cannot be a final determination of the controversy, so far as concerns the petitioner for removal; without the presence of the other defendants.
Third. This embodies the act of 1867, commonly called the “ local prejudice or influence act.” Though the petition presents the requisite affidavit as to “local prejudice or influence ” prescribed in the act, the application cannot be sustained under this provision, because by its terms the latter applies only to cases where the suit is exclusively between a citizen of the State of the forum and a citizen of another State.
This disposes of section 639 U. S. Rev. Statutes, and it now only remains to consider the act of March 3, 1875.
The only provision of this act which is germane to the instant case is the following, viz: “ When in any suit mentioned in this section, there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants, actually interested in such controversy, may remove said suit to the Circuit Court of the United States.” The only relief authorized by this act is the removal of the whole suit.
Dillon on Removal of Causes, p. 29, and cases there cited.
Burch vs. Davenport, 46 Iowa, 449.
We do not think there is, in this suit, any controversy which is wholly between citizens of different States, and which can be fully determined as between them.”
Plaintiff claims title to the whole of the lands in controversy under a single title. He alleges that they are in possession of all the defendants under pretended titles, having directly or derivatively a common origin, viz: a tax sale to the two resident defendants, which is sought to be annulled. As to the 1197 acres held in indivisión by Steele and Mrs. Twitchell, it cannot be questioned that they are, both, proper and necessary parties to the controversy touching the same.
[524]*524As to the 320 acres which Mrs. Twitchell claims to hold under title from Twitchell and Steele, her co-defendants, we think that plaintiff asserting a single title to the whole of the land, and alleging that defendants are in possession and have no title, cannot be driven to split up his action, because as to part of the land, the alleged void title is claimed to be vested in one of the defendants alone.
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The opinion of the Court was delivered by
Fenner, J.
The plaintiff, as executor of Leroy A. Stafford, deceased, of the parish of Rapides, La., brings this action against Marshall EL Twitchell and Jesse G-. Steele, of the parish of Red River, La., Mrs. Elizabeth Twitchell, of the State of Yermont, and Marshall EL Twitchell, Jr., a minor represented by the last named defendant as guardian, appointed in Yermont and recognized by the courts of this State.
The petitioner represents that the succession of L. A. Stafford was owner of 1517 68-100 acres of land, situated in Red River parish, and described in the petition; that thesaid lands are now in possession of the defendants who claim to be owners thereof, under a certain tax sale made on the 6th of January, 1874, by which they were adjudicated to Marshall H. Twitchell and Jesse G. Steele. Steele subsequently sold his interest in 320 acres of the land to Twitchell; and Twitchell, after this, sold his whole interest in the land to his mother, Mrs. E. Twitchell, whioh accounts for her presence as defendant. The minor is the son of Marshall H. Twitchell, who was married at the date of the tax-purchase, and whose wife has since died, and the minor is made a party as the representative of her community interest.
The petition alleges that the tax sale was a nullity for various [522]*522reasons therein set forth, and prays that the same be decreed null and void, that petitioner’s title be recognized and enforced,- and for a judgment for rents and revenues.
The foregoing is a sufficient statement of the issues, for the purpose of determining an application for removal to the Federal court, which must be first determined, because it involves our jurisdiction in the case. One of the defendants, Mrs. Twitchell, filed a petition praying for the removal of the cause to the United States Circuit Court. The allegations of this petition'are substantially as follows:
1st. That she is a party defendant, and that her interest involved therein exceeds two thousand dollars;
2d. That she is, and was at the date of suit, a resident and citizen of Vermont, and that the plaintiff is, and was at the said date, a citizen of Louisiana;
3d. That by virtue of sections 639, 640 and 670 of the U. S. Revised Statutes, and of the act of Congress of 1875, she is entitled to have the cause removed;
4th. That “ the grounds on which she bases her right and claim to the removal are that she verily fears and believes, and has good ground to fear and believe, that from prejudice or local influence, one or both, that now exists and has existed against her in the said parish of Red River, La., and against her vendor M. H. Twitchell, therein, she will not be able to obtain justice in said State court or courts.”
Her application was timely and accompanied with tender of the requisite bond; and she prayed for the removal of the suit.
The question to be determined is whether her petition presents sufficient grounds for removal under any of the laws referred to.
Sections 640 and 670 of U. S. Rev. Statutes have no conceivable application to case.
Section 6Ó9 contains three paragraphs setting forth distinct grounds for removal, as follows:
First. This embodies the provision of the judiciary act of 1789, and applies only where the suit is exclusively between a citizen of the State where it is brought and a citizen of another State. Such is not the case at bar, where the party plaintiff and some of the defendants are citizens of the same State.
Second. This embodies the provision of the act of 1866. It is applicable to a suit like the present, where the plaintiff is a citizen of the State of the forum, and the defendants are, some of them, citizens of the same State, and another is a citizen of another State. The latter is only authorized to remove, when “there can be a final determination of the controversy, so far as concerns him without the presence of the other defendants as parties in the cause;” and, even in that case, [523]*523he is not authorized to remove the suit, but only the particular controversy between himself and plaintiff, without prejudice to the latter’s right to proceed with his suit in the State court as against the other defendants. The petition for removal cannot be sustained under this provision, for several reasons, viz: (1), it does not set forth the essential allegation on which the right rests; (2), it prays for the removal of the whole suit and not of the particular controversy between plaintiff and the petitioning defendant; (3), the grounds on which she expressly bases her right to removal, viz: “local prejudice or influence,” have no application under this provision; and (4) from the nature of the cause, being a suit to declare null the common title of the several defendants to lands held by them in indivisión, and to establish the title of plaintiff to the whole of said lands as against all the defendants, there cannot be a final determination of the controversy, so far as concerns the petitioner for removal; without the presence of the other defendants.
Third. This embodies the act of 1867, commonly called the “ local prejudice or influence act.” Though the petition presents the requisite affidavit as to “local prejudice or influence ” prescribed in the act, the application cannot be sustained under this provision, because by its terms the latter applies only to cases where the suit is exclusively between a citizen of the State of the forum and a citizen of another State.
This disposes of section 639 U. S. Rev. Statutes, and it now only remains to consider the act of March 3, 1875.
The only provision of this act which is germane to the instant case is the following, viz: “ When in any suit mentioned in this section, there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants, actually interested in such controversy, may remove said suit to the Circuit Court of the United States.” The only relief authorized by this act is the removal of the whole suit.
Dillon on Removal of Causes, p. 29, and cases there cited.
Burch vs. Davenport, 46 Iowa, 449.
We do not think there is, in this suit, any controversy which is wholly between citizens of different States, and which can be fully determined as between them.”
Plaintiff claims title to the whole of the lands in controversy under a single title. He alleges that they are in possession of all the defendants under pretended titles, having directly or derivatively a common origin, viz: a tax sale to the two resident defendants, which is sought to be annulled. As to the 1197 acres held in indivisión by Steele and Mrs. Twitchell, it cannot be questioned that they are, both, proper and necessary parties to the controversy touching the same.
[524]*524As to the 320 acres which Mrs. Twitchell claims to hold under title from Twitchell and Steele, her co-defendants, we think that plaintiff asserting a single title to the whole of the land, and alleging that defendants are in possession and have no title, cannot be driven to split up his action, because as to part of the land, the alleged void title is claimed to be vested in one of the defendants alone.
The subject of controversy is the nullity of the tax sale, in which all the defendants are interested, and which cannot be properly determined except contradictorily with them all. If, however, it could beheld that the controversy as to 320 acres was one wholly between Mrs. Twitchell and plaintiff, and capable of being fully determined between them, we should unhesitatingly decline to grant the only relief afforded by this act, viz: the removal of the entire suit, on the ground of the unconstitutionality of the act. This grave question has not yet been adjudicated by the Supreme Court of the United States in connection with this particular act.
The Federal judicial power, as conferred by the constitution, so far as dependent exclusively on the citizenship of the parties, is confined to “ controversies between citizens of different States.”
The removal of this whole suit would necessarily vest the Federal court with jurisdiction not only of the controversy between plaintiff and Mrs. Twitchell, but also of that between plaintiff and the other defendants who are his fellow citizens of the same State.
An act of Congress cannot confer such jurisdiction. The jurisprudence on this is so uniform and well-settled, that we see not how Congress could have assumed such a power, or by what possible-argument it can be sustained.
See Ober vs. Gallagher, 3 Otto, 199.
Bryant vs. Rich, 106 Mass. 192. Also, 14 How. 36; 17 How. 141; 21 How. 492; 1 Blatch. 571; 6 Wall. 286; 10 Wall. 332; 14 Peters, 65; 2 How. 497.
The application for removal was, therefore, properly denied.