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rights; and, second, because upon the facts of the case as disclosed by the record the appellant is not entitled to the application of the doctrine of subrogation.
We are of opinion that, except in one respect, the judgment of the court below is right. It refused to allow "any interest on the account.” We think that the one-half of the various amounts of money received by the appellant from the property belonging to the complainants and cross-complainant should bear legal interest from the date they were respectively received by the appellant, and that the appellant is entitled to like interest upon the various sums of money paid out by it on account of the property that were allowed by the court below from the date of their respective payments.
The judgment of the court below will be so modified, and, as thus modified, will stand affirmed.
MORROW, Circuit Judge (dissenting). This is a suit in equity for the partition of real estate and improvements thereon, and for an accounting for the proceeds of the property according to the rights and interests of the respective parties, and, in case partition thereof cannot be made without prejudice and loss to the owners thereof, then and in that event the said premises, or such part thereof as cannot be divided, to be sold by and under the direction of the court, and the proceeds of the sale divided between the parties. The real estate and improvements concerned in this case are situated in the city of Spokane, state of Washington. The complainants in the court below (appellees here) are William L. Tull, a citizen of the state of Washington, and Lucius B. and Lucius G. Nash, a firm of attorneys doing business under the name of Nash & Nash in the city of Spokane, Wash. The defendant German Savings & Loan Society is a corporation existing under the laws of California, the defendant Dora May Seeley is a citizen of Illinois, and the defendant Ernest B. Tull, a minor, a citizen of Iowa. The trial of the case resulted in a decree of partition dividing a portion of the property in question among the complainant William L. Tull and the defendants Dora May Seeley, Ernest B. Tull, and the German Savings & Loan Society, and for a sale of the remainder and the distribution of the proceeds between the parties in interest. From this decree an appeal is taken to this court by the German Savings & Loan Society, and a cross-appeal is prosecuted by Ernest B. Tull and Dora May Seeley.
The facts leading up to this litigation are, briefly, the following: F. M. Tull, the father of William L. Tull, Dora May Seeley, and Ernest B. Tull, parties herein, bought the lots which are the subject of suit in 1886, and commenced the construction of a building thereon. In order to complete the purchase price of the ground and to construct a suitable building thereon, he negotiated a mortgage on the property with the appellant herein in the amount of $40,000, but before it was executed his wife died. The property was considered to be community property, and the wife's interest therein passed to the three children. As they were minors at the time of her death, a valid mortgage could not be given, under the laws of Washing
ton. A guardian was appointed by the probate court for the minors, and upon his petition a sale was ordered of their interests in the property. The father became the purchaser at this sale, but paid no money for their interests, merely giving a mortgage for the amount bid to the guardian, which mortgage was afterwards canceled without further payment. The record title was thus completed in F. M. Tull, the father, who then secured the loan of $40,000 from the appellant, and proceeded with the construction of buildings on the lots. In 1889 the buildings were destroyed by fire, and with the insurance collected F. M. Tull paid off the mortgages, leaving the ground free from incumbrance. He afterwards gave other mortgages to the appellant as security for loans made by it at different times, amounting to $120,000, all of which was expended in the improvements now on the property. In 1894 F. M. Tull defaulted in the payment of interest, the mortgages were foreclosed, and at foreclosure sale the appellant became the purchaser and obtained possession of the property. In 1897 the Tull children brought suit in the state court of Washington against the appellant herein and others, seeking a decree declaring the act of their guardian in canceling the mortgage given by their father null and void, and to have said mortgage reinstated as a lien upon the property superior to any other interest or right, and for a foreclosure of said mortgage and sale of the property. The superior court decided against the complainants, and they appealed to the Supreme Court of the state, submitting the cause upon the transcript of the record and briefs. After submission of the case one of the justices of the Supreme Court resigned. Hon. William H. White was appointed in his place, and delivered the opinion of the court in the case on November 7, 1900, reversing the decision of the superior court, holding the proceedings in the probate court to be fraudulent, and restoring to the complainants the share of their mother in the property, namely, an undivided one-half interest, unincumbered. Dormitzer v. German Savings & Loan Society, 23 Wash. 132, 224, 62 Pac. 862. This judgment was affirmed by the Supreme Court of the United States in January, 1904. German Savings & Loan Society v. Dormitzer, 192 U. S. 125, 24 Sup. Ct. 221, 48 L. Ed. 373. Meanwhile the Tull children commenced an action in the superior court of Washington to have the property partitioned, and for an accounting from the appellant herein of the rents, issues, and profits of the property. This cause was removed to the United States Circuit Court for the District of Washington, where judgment was rendered in favor of the complainants. An appeal was taken therefrom to this court, resulting in a reversal of the judgment of the Circuit Court for want of jurisdiction, and the cause was ordered remanded to the state court. German Savings & Loan Society v. Dormitzer, 116 Fed. 471, 53 C. C. A. 639. While that cause was still pending and undetermined, the present suit was commenced in the Circuit Court on the 16th day of June, 1902, for partition of the property, and an accounting of rents and profits by the appellant herein; the complainants being but one of the Tull heirs, joined with Nash & Nash, attorneys, claiming a lien upon the property by virtue of express contracts with the Tull heirs. The appellant answered, and also filed a cross-bill, setting out a want of jurisdiction in the Supreme Court of Washington to render the judgment in favor of the Tull heirs, and pleading a misjoinder of parties and causes of action. It alleged that it acquired the various mortgages upon the property in question in perfect good faith, and for valuable consideration; that there was no community interest in the property at the time F. M. Tull invested in it, and the Tull children were therefore not entitled to any rights therein upon the death of their mother; that appellant is the rightful owner of the legal title to the property in controversy; but that, in the event it should be adjudged that the Tull heirs own an interest in said property, as tenants in common with the appellant, it is prayed that appellant be decreed to have a lien upon such interest for money expended by it in the payment of taxes, assessments, mortgages, repairs, etc., and for a fair valuation of the improvements upon the property. Issues were joined between all the parties after answers and cross-bills having been filed by the other defendants, and the Circuit Court rendered judgment against appellant for partition and an accounting, withholding decision as to the other controversies presented.
It is assigned as error that the court erred in not dismissing the proceedings in this cause, for the reason that the court had no jurisdiction to proceed in the matter. This objection is based upon the joinder of Nash & Nash, citizens of the state of Washington, with William L. Tull, also a citizen of the state of Washington, as complainants. It is alleged in the bill of complaint that Nash & Nash were copartners in the practice of the law at Spokane, Wash.; that William L. Tull and the defendant Dora May Seeley, in their own behalf and in behalf of the defendant Ernest B. Tull
, consulted and by agreement employed Nash & Nash to institute the necessary legal proceedings to determine their respective rights in and to said real estate, and to recover the same. It is further alleged that pursuant to such agreement Nash & Nash did institute the necessary legal proceedings in the superior court of Washington, and that such proceedings were thereafter had that a judgment and decree was entered adjudging and decreeing that Dora May Dormitzer (Seeley) and William L. Tull and Ernest B. Tull were entitled to an unincumbered, undivided one-half of the real estate described in the pleadings in this action. It is further alleged that the said Tull heirs, and each of them, were poor, and utterly without means or money to prosecute a suit to obtain relief from certain fraudulent acts referred to in the bill, and were compelled to secure the necessary legal assistance upon a contingent fee, which terms and agreement of employment between Dora May Seeley and William L. Tull and the firm of Nash & Nash were as follows, to wit:
"That said Dora May Seeley agreed to give as compensation to said Nash & Nash thirty-five per cent. of whatever the said Dora May Seeley recovered or established a right to in said real estate and the rents, issues, and profits thereof, and William L. Tull agreed to give as compensation one-half of whatever said William L. Tull recovered or established his right to in said real estate, and the rents, issues, and profits thereof; all compensation to be contingent upon the success of the litigation, which terms and conditions were accepted by said Nash & Nash."
It is further alleged that by virtue of the terms of this employment Nash & Nash are entitled to an undivided '/120 of the interest of Dora May Seeley in and to said real estate and all rents and profits of said real estate from April 23, 1896, and that by the terms of the agreement between Nash & Nash and William L. Tull Nash & Nash are entitled to one-half of the interest of said William L. Tull and all rents, issues, and profits of said real estate from the said 23d day of April, 1896. It is further alleged that the defendant Dora May Seeley is the owner in fee and entitled to the possession of one undivided onesixth of the real estate described in the bill of complaint and an undivided one-sixth of all rents, issues, and profits arising out of such real estate since the 23d day of April, 1896, less 35 per cent. thereof belonging to Nash & Nash; that William L. Tull is the owner in fee simple and entitled to the possession of one undivided one-sixth of the said real estate, and an undivided one-sixth of all rents, issues, and profits arising out of said real estate since the 23d day of April, 1896, less onehalf thereof belonging to Nash & Nash; Nash & Nash are entitled to an undivided ??/120 of the said real estate and an undivided ??/120 of all the rents, issues, and profits thereof since the 23d day of April, 1896; that the defendant Ernest B. Tull is the owner in fee simple and entitled to the possession of an undivided one-sixth of the said real estate and an undivided one-sixth of all rents, issues, and profits arising out of the said real estate since the 23d day of April, 1896; that the defendant German Savings & Loan Society is the owner in fee simple of an undivided one-half of said real estate and an undivided one-half of all rents, issues, and profits arising out of said real estate. In the prayer for relief the court is asked to ascertain and adjudge the respective rights and interests of the parties to the action in and to the real estate described in the complaint, and the rents, issues, and profits thereof. Nash & Nash also ask that they be allowed the sum of $15,000 as attorneys' fees for their services in the present suit.
Upon these allegations the appellant contends that the Circuit Court was without jurisdiction of the cause, for the reason that there was a lack of diversity of citizenship as required by the statute; that Nash & Nash are complainants against the Tull heirs as defendants, and that each of the separate contracts alleged to have been made by them with the Tull heirs, respectively, constitutes a separate and independent cause of action as against each of said heirs, and that each of these alleged causes of action set up by the Nashes must be separately tried out, ascertained and adjudged; that Nash & Nash cannot maintain their cause of action alleged in the bill of complaint against William L. Tull in the Circuit Court, for the reason that they are citizens of the state of Washington, and as between them there is no diversity of citizenship which is required to give the court jurisdiction of all the parties to the suit. A sufficient answer to this objection is the fact that the bill of complaint does not allege any controversy between Nash & Nash and William L. Tull. The bill alleges that Nash & Nash have an interest in the real estate in controversy, and in the rents, issues, and profits thereof, and sets forth the source of their title; but no separate controversy is alleged to exist between them and their co-com
plainant William L. Tull, from whom part of their interest has been derived, and no decree is asked as against him. Pacific R. R. v. Ketchum, 101 U. S. 289, 298, 299, 25 L. Ed. 932. This is a suit to partition real property, and under the law of the state of Washington the interest of all persons in the property must be set forth in the complaint specifically and particularly, as far as known to the complainant. Ballinger's Ann. Codes & St. Wash. § 5558. That is what has been done in this bill of complaint. It is a local action, brought to enforce a claim and settle the title to real estate, and comes within the provisions of section 8 of the act of March 3, 1875, c. 137, 18 Stat. 472 (U. S. Comp. St. 1901, p. 513), as declared by the Supreme Court in Greeley v. Lowe, 155 U. S. 58, 67, 74, 15 Sup. Ct. 24, 39 L. Ed. 69.
It is further contended that in arranging the parties in accordance with their interests as against the appellant the complainants would be Nash & Nash and William L. Tull, citizens of the state of Washington, Ernest B. Tull, a citizen of the state of Iowa, and Dora May Seeley, a citizen of the state of Illinois, against the appellant, a citizen of the state of California, as defendant. By this arrangement Nash & Nash and William L. Tull, who are citizens of the state of Washington, where the suit is brought, would be joined as complainants with Ernest B. Tull, a citizen of the state of Iowa, and Dora May Seeley, a citizen of the state of Illinois, and a lack of jurisdiction would arise under section 1 of the act of March 3, 1887, c. 373, 24 Stat. 552, as amended by the act of August 13, 1888, C. 866, 25 Stat. 433 (U. S. Comp. St. 1901, p. 514), as construed by the Supreme Court in Smith v. Lyon, 133 U. S. 315, 10 Sup. Ct. 303, 33 L. Ed. 635, where it was held that the Circuit Court did not have jurisdiction on the ground of diverse citizenship if there were two plaintiffs to the action who were citizens of and residents in different states, and the defendant was a citizen of and resident in a third state, and the action was brought in the state in which one of the plaintiffs resided. But it was held in Greeley v. Lowe, supra, that the case of Smith v. Lyon involved only the rights of parties to personal actions residing in different districts, and had no bearing upon a case involving a local action brought to enforce a claim and settle the title to real estate. But, aside from this distinction between a local action and a personal action, there is nothing in the allegations of the bill that would justify the court in arranging the parties as proposed by the appellant. Any question affecting the right of the plaintiff to a partition, or the rights of each and all of the parties in the land, may be put in issue, tried, and determined in such action. De Uprey v. De Uprey, 27 Cal. 329, 335, 87 Am. Dec. 81. And where the bill in such a case shows on its face diverse citizenship as between the parties complainant and defendant; that the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000; and the suit is brought in the district of the residence of either the plaintiff or defendant—the court has jurisdiction of the case, and no rearrangement of the parties will be made with respect to a subordinate question to defeat that jurisdiction. For the reasons stated, the bill is not open to the further