U.S. Supreme Court
Ayres v. Wiswall, 112 U.S. 187 (1884)
Ayres v. Wiswall
Submitted October 20, 1884
Decided November 10, 1884
112 U.S. 187
In a proceeding commenced in a state court to foreclose a mortgage, which prays judgment that the mortgage debtors be adjudged to pay the amount found due on the debt, and in default thereof that the property be sold, a mortgage debtor who has parted with his interest in the property subject to the debt (which the purchaser agreed to assume and pay), is a necessary party to the suit, and if he is a citizen of the same state with the mortgagees, or one of them, the suit cannot be removed to the circuit court of the United States under the provision of the first clause of § 2, Act of March 3, 1875, 18 Stat. 470.
The filing of separate answers by several defendants in a suit for the foreclosure of a mortgage, which raise separate issues in defending against the one cause of action, does not create separate controversies within the meaning of the second clause in § 2, Act of March 3, 1875, 18 Stat. 470.
This is an appeal under § 5 of the Act of March 3, 1875, c. 137, 18 Stat. 470, from an order of the circuit court remanding chanrobles.com-redchanrobles.com-red
a case which had been removed from a state court. The suit was brought on the 15th of April, 1879, in the Circuit Court of Huron County, Michigan, by the appellees, citizens of New York, against Ebenezer Wiswall, also a citizen of New York; Ebenezer R. Ayres, a citizen of Ohio; Frederick S. Ayres, James S. Ayres, Charles G. Learned, citizens of Michigan, and many others whose citizenship does not appear, to foreclose a mortgage executed by Frederick S. Ayres, Charles G. Learned, and Ebenezer Wiswall, to Catharine E. Wiswall, a citizen of New York, to secure a debt owing by them jointly to her. This mortgage and the debt it secured were assigned to the appellees before the suit was brought. After the mortgage was made, Ebenezer Wiswall contracted in writing to sell to Frederick S. Ayres his interest in the mortgaged property, subject to the mortgage debt, which Ayres assumed to pay as part of the consideration money. Afterwards, Learned sold and transferred to Ebenezer R. Ayres all his remaining interest in a part of the mortgaged property, subject to the mortgage, which Frederick S. Ayres, James S. Ayres and Ebenezer Ayres bound themselves to pay. Between the time of the execution of the mortgage and the commencement of the suit, the mortgagors and their grantees sold and conveyed a large number of the parcels of the mortgaged property to various persons whose citizenship does not appear. All these purchasers were made parties. The bill, after setting forth the execution of the mortgage, and the various transfers and conveyances, and giving credit for certain payments on the mortgage debt, prayed that Frederick S. Ayres, Charles G. Learned, and Ebenezer Wiswall be decreed to pay the amount found due on the mortgage debt, and in default that the property, or so much thereof as was necessary, might be sold and the proceeds applied to that purpose. It further prayed for execution against Frederick S. Ayres, Charles G. Learned, Ebenezer Wiswall, and James S. Ayres for any balance of the debt which might remain due after the property was exhausted.
Ebenezer Wiswall and Learned filed separate answers to the bill, in which they admitted the execution of the mortgage and the debt for the security of which it was given, and asked chanrobles.com-redchanrobles.com-red
that their respective grantees, who had assumed the payment of the mortgage debt, might be decreed to be first personally liable for any money decree that should be rendered.
Frederick S. Ayres and James S. Ayres also answered, denying that the original debt for which the mortgage was executed amounted to as much as it was stated in the mortgage to be, and averring that other payments had been made beyond those stated in the bill. They insisted that there was not more than $20,000 due, and this they offered to pay.
In this state of the pleadings, Frederick S. Ayres, James S. Ayres, and Ebenezer R. Ayres, on the 28th of November, 1879, filed in the state court a petition, accompanied by the necessary bond, for the removal of the cause to the Circuit Court of the United States for the Eastern District of Michigan. The parts of the petition material to the present inquiry are as follows:
"That said complainants are, and were at the time said suit was commenced, citizens of New York; that your petitioners Frederick S. Ayres and James S. Ayres are, and were when said suit was commenced, citizens of Michigan, and your petitioner Ebenezer R. Ayres is, and was when said suit was commenced, a citizen of Ohio; that in said suit, which is for the foreclosure of a mortgage on a large tract of land in the Eastern District of Michigan, there is a controversy which is wholly between said complainants and these petitioners, and which can be fully determined, as to them, without the presence of the other defendants."
Under this petition the case was taken to the circuit court of the United States, where it remained until the 29th of December, 1881, and until after a hearing, and a decree finding the amount due on the mortgage and ordering a sale of the property. While the case was in the United States court, Ebenezer R. Ayres filed an answer, presenting substantially the same issues as those of Frederick S. and James S., in the state court. On the 29th of December, 1881, and during the same term in which the final decree was rendered, the following order was made:
"It appearing to the court that the record in this cause was
improperly removed to the court from the Circuit Court of the County of Huron, in chancery, and that this court hath not jurisdiction of the cause, it is ordered that the proceedings had thereon in this court be, and the same are hereby, set aside and held for naught, and that the said cause be remanded to the said Circuit Court for Huron County in chancery, and that this cause be dismissed from this court for want of jurisdiction."
From this order the present appeal was taken on the 12th of November, 1883.