tion, and appointing George Sidney Tyler master commissioner to make the sale. That part 19] of the *decree which referred to Robb and Strong, trustees, was as follows:

"And it is ordered with the consent of Henry W. Taylor, and Charles E. Strong, and James Hampden Robb, trustees, that the fee simple title of the premises described in said mortgage to William Stix be sold and said premises sold freed from the claims of Henry W. Taylor, and Charles E. Strong, and James Hampden Robb, trustees; and all other parties in this suit, their respective rights in and to said premises being transferred to and reserved in the proceeds of such sale."

By proceedings under this decree, on April 16, 1887, the property in question was sold, a part thereof to August Vos and a part to William Stix, and on May 24, 1887, conveyed, by a master, to them in fee simple, Vos paying into court the amount of his bid, $9100, and Stix paying $3131.32.

In the final decree of distribution it was ordered that the sum of $11,361.66, being principal and interest, should be paid over by the master to Robb and Strong, trustees, or Kebler, Roelker & Jelke, attorneys, and $7926.02 to William Stix of Kebler, Roelker & Jelke, attorneys, and those sums were paid to Charles A. Kebler, attorney.

On June 23, 1887, Charles A. Kebler gave to F. G. Roelker a conveyance of lands as security for moneys due by Kebler to Roelker, and also to indemnify the latter against any loss he might sustain or liability that he might be under by reason of the partnership business of Kebler & Roelker, attorneys.

On November 25, 1887, Charles A. Kebler died by his own hand, intestate and insolvent. In January, 1888, io the court of common pleas of Hamilton county, Ohio, at No. 79,812. William J. Coppock, as administrator of Charles A. Kebler, deceased. filed a petition setting forth, among other things, the death of Kebler intestate and insolvent; that there was a large amount of real estate which it was necessary to sell in order to provide means to pay debis; that certain persons had, or claimed to have, title to or liens against said real estate, etc. The minor children of Kebler and F. G. Roelker were made parties defendant. To this petition Roelker filed an answer, in which he 20 alleged the *existence of the conveyance or mortgage made to him in June, 1887, by Kebler, and that J. Hampden Robb and Charles E. Robb, as trustees, claimed to have had dealings with Charles A. Kebler, acting and professing to act as a partner of him, the said Roelker, whereby they claimed that the said partnership and the said Roelker were indebted to them; that he, the said Roelker, did not know, and was unable to state, the particulars of said transactions; that they were concealed from him by the said Charles A. Kebler during his lifetime, etc.; and that he, Roelker, if liable by reason of said transactions, was entitled to the protection of the said conveyance of June, 1887; and he further alleged that the said Robb and Strong, trustees, were necessary parties to the determination of the rights of the parties to the litigation, and asked that they be made defendants and be called upon to answer to and set up their claims, etc.

In this suit Robb and Strong, trustees, appeared and filed an answer and a cross-petition, in which they set forth the particulars of their title to or interest in the lands described in their conveyance to Moritz Loth and the lease of the latter to them, and the proceedings in the Gugenheim case. In respect to that case their averments were as follows:

"And these defendants further say that on said day one Myer Gugenheim, having recov ered by the consideration of this court a judgment against the said Moritz Loth, brought suit in this court, case No. in this court, against the said Moritz Loth, and the defendants and divers other persons, praying, among other things, that these defendants may be declared to hold said lands by way of mortgage as security for the said purchase price on said lands of $10,000, and that said lands might be free from the claim of these defendants and all other persons parties thereto to satisfy the said judgment of the said Meyer Gugenheim and the claims of divers persons therein made defendants.

"And these defendants further say that thereafter, to wit, on the 18th day of December, 1885, Charles A. Kebler and Frederick G. Roelker, then partners engaged in the practice of law under the firm name and style of Kebler & Roelker, of the *city of Cin- [21 cinnati, entered the appearance of these defendants in such cause and filed an answer therein on behalf of these defendants; further say therefore, to wit, upon the 10th day of May, 1887, said firm of Kebler & Roelker was dissolved, and Charles A. Kebler, Frederick G. Roelker, and Ferdinand Jelke, Jr., entered into a partnership and engaged in the practice of law in the city of Cincinnati under the firm name and style of Kebler, Roelker & Jelke, as the successors of said firm of Kebler & Roelker, and these defendants say that thereafter all steps in said cause on behalf of these defendants were taken by said firm of Kebler, Roelker & Jelke, and by none others; and these defendants further say that such proceedings were afterwards had in said cause that the said premises were sold, free of the claims of these defendants and of all other persons whoever, by one George Sidney Tyler, who was appointed special master commissioner by this court in said cause for the purpose of making such sale, and said proceedings were thereafter had in said cause that a decree was made in said cause on the 19th day of May, 1887, whereby it was ordered, adjudged, and decreed that said George Sidney Tyler, special master commissioner in said cause, pay to these defendants or their counsel, Kebler, Roelker & Jelke, out of the proceeds of said sale, the sum of $11,361; and these defendants further say that said sum was duly paid on the 16th day of June, 1887, to said firm of Kebler, Roelker & Jelke by said George Sidney Tyler, special master commissioner, as ordered by the decree of said court, and that no portion thereof has been paid to these defendants or accounted for to them; and these defendants further say that since which time, to wit, on the 23rd day of November, 1887, Charles A. Kebler departed this life, and that Frederick G. Roelker and Ferdinand Jelke, Jr., are the surviving

partners of said firm. Wherefore these defendants pray that said Ferdinand Jelke, Jr., may be made party defendant hereto and that it may be adjudged that these defendants are creditors of said firm of Kebler, Roelker & Jelke, and that the property in the petition and cross petition of Frederick G. Roelker sought to be sold may be sold, and that out of the 22 proceeds thereof said sum $11,361, *with interest from the 16th day of June, 1887, may be paid to these defendants, and that these defendants may recover judgment against Frederick G. Roelker and Ferdinand Jelke, Jr., as surviving partners of Kebler, Roelker & Jelke, for said sum of $11,361, with interest from the 16th day of June, 1887, and for their costs."

Subsequently, on May 17, 1888, Robb and Strong, trustees, obtained leave of court to withdraw their said answer and cross petition, and filed a demurrer on the ground that they were not proper parties to the case, which de murrer was sustained by the court, and Robb and Strong were, on May 26, 1888, dismissed with their costs.

On May 12, 1888, Robb and Strong, trus tees, at No. 43.368 of the superior court of Cincinnati, Hamilton county, Ohio, brought a suit against August Vos and William Stix. In the petition, after reciting the conveyance by themselves to Moritz Loth and the lease of the latter to them, they set forth the proceedings in the Gugenheim case, and allege as follows:

"And the plaintiffs further say that on said day one Meyer Gugenheim, having recovered by the consideration of the Court of Common Pieas of Hamilton county, O., a judgment against the said Moritz Loth, brought suit in the said court of common pleas, numbered 74,375 in the said court, against the said Moritz Loth and these plaintiffs and divers other persons, praying, among other things, that these plaintiffs might be declared to hold said lands by way of mortgage as security for the said purchase price of said lands of $10,000, and that the said lands might be sold free from any claims of these plaintiffs and all other persons parties thereto, to satisfy the judgment of the said Meyer Gugenheim and the claims of the divers other persons therein made defendants.

"And these plaintiffs further say that in said cause no summons or other process was ever issued for these plaintiffs (who then were and ever since have been non-residents of Ohio) and no advertisement was ever made for these plaintiffs, and that they had no notice of said proceedings; and these plaintiffs further say that thereafter, to wit, on the 18th day of December, 1885, one Charles A. Kebler, then en23 gaged in the practice of the law with one Frederick G. Roelker, under the firm name and style of Kebler & Roelker, in the said city of Cincinnati, did, without authority from the plaintiffs and without their knowledge, enter the appearance of these plaintiffs in said case, and did file an answer therein on behalf of these plaintiffs, using for that purpose said firm name of Kebler & Roelker.

"And these plaintiffs further say that thereafter, to wit, prior to the 11th day of May, 1887, the said firm of Kebler & Roelker was

dissolved, and the said Charles A. Kebler, the said Frederick G. Roelker, and one Ferdinand Jelke, Jr., entered into a partnership and engaged in the practice of the law in said city of Cincinnati, under the firm name and style of Kebler, Roelker & Jelke, as successors to the said firm of Kebler & Roelker; and these plaintiffs further say that thereafter all steps in said cause purporting to be on behalf of these plaintiffs were taken in the name of the said firm of Kebler, Roelker & Jelke.

"And these plaintiffs further say that all steps taken in said cause at any time purporting to be on behalf of these plaintiffs were taken without the knowledge of these plaintiffs and without any authority from these plaintiffs; and these plaintiffs say that all orders, decrees, and judgments entered in said cause purport to have been entered by and with the consent of these plaintiffs, but that the same were entered by the said Kebler, Roelker & Jelke, and without the knowledge, consent, or the authority of these plaintiffs, and that these plaintiffs had no knowledge of said cause or the institution thereof, or of any proceeding therein, until December 2, 1887, being long after the conveyance of said lands to the purchasers thereof, in pursuance of the pretended sale made in said case.

"And these plaintiffs further say that such proceedings were had in said cause No. 74,375, that the said premises were sold by one George Sydney Tyler, who was appointed special master commissioner by said court of common pleas for the purpose of making said sale of property, and that said special master commissioner purported to make said sale free of the claims of these plaintiffs and of all other persons *whatever parties to said cause, and [24 that the said parcels of land were purchased, respectively, at said sale by the said August Vos, purchasing lots numbered 3, 4, and 5, herein before described, of the subdivision of the tract of land on the west side of Vine street, 100 feet front and extending back westwardly 132 feet, of the same width in front as in rear, and the said William Stix purchasing the other lots herein before described, to wit, all those parts of lots 2, 4, and 5, of block 12 of Findlay and Ludlow subdivision, hereinbefore described.

"And these plaintiffs further say that in said cause numbered 74,375 a decree was made on the 19th of May, 1887, whereby it was ordered, adjudged, and decreed that the said George Sydney Tyler, special master commissioner in said case, pay to these plaintiffs, or to Kebler, Roelker & Jelke, purporting to be their attorneys in said cause, out of the proceeds of said sale, the sum of $11,361.66.

"And these plaintiffs further say that thereafter, on the 16th day of June, 1887, the said George Sydney Tyler, special master commissioner, as ordered by the decree of said court, but without the knowledge and consent of these plaintiffs and without their authority, did pay to the said Kebler, Roelker & Jelke, and the said Kebler, Roelker & Jelke received, the said sum of $11,361.66, and that no portion of the said sum has been received by these plaintiffs or been accounted to for them.

"And these plaintiffs say that they were never parties to said cause in law or in fact,

and that the said sale as to them is null and void.

"And these plaintiffs further say that the said transactions between them and said Moritz Loth were in truth and in fact a loan by them to the said Moritz Loth of the sum of $10,000, in consideration whereof the said Moritz Loth conveyed to them the premises herein before described, and they executed to the said Moritz Loth the lease herein before described, containing the privilege of purchase for the said sum of $10,000; and they say that in consequence thereof they have a first and best lien upon the said premises in the said sum of $10,000, with interest thercon, and that there is and remains 25] due and unpaid *thereon the sum of $10,000, with interest thereon from January 1, 1885, at six per cent per annum.

"Wherefore the plaintiffs pray that the said claim may be established as a first and best lien on the said premises, and that unless the defendants shall pay to them the said sum of $10,000, with interest as aforesaid, at a short day to be fixed by the court, that the said premises may be sold for the satisfaction of their said claim, and for such other and further relief as they may show themselves to be entitled in equity and good conscience."

In the superior court case, summons was issued May 12, 1888, and served on August Vos, May 18, 1889.

On June 7, 1888, Vos filed his answer and cross-petition in said case, denying that the alleged acts of Kebler for the said Robb and Strong, trustees, in the Gugenheim case were without their authority, knowledge, or consent, admitting the sale to him under the proceedings in that case, and that the transactions between them and said Loth were in fact a loan by them to him of $10,000 at six per cent interest secured in the form of said deed and lease, but denying that they have any lien on said premises therefor or that any part thereof remains unpaid. By way of cross-petition, the said Vos sets up the proceedings in the said Gugenheim case, and avers their regularity, and that said proceedings, orders, decrees, sale, and deed vested in him a valid title in fee simple to the said real estate purchased by him thereunder, free from all claims of said appellants and other parties to said cause, his pay. ment therefor of $9100, and his possession thereof ever since the conveyance to him, May 24, 1887. He prays "that the said claim and interest of the said Robb and Strong, trustees, in and to said real estate may be adjudged to be null and void, and that his title aforesaid may be quieted against the same, and for all other proper relief."

On June 8, 1888, upon motion of said Robb and Strong, trustees, their said petition was dismissed, and as to the said cross-petition of Vos, the cause was continued for further proceedings. On July 7, 1888, the said Robband Strong, trustees, filed their petition in said cause 26143,368, Superior Court of Cincinnati, for a removal of the same on the cross-petition of said Vos to the circuit court of the United States, in and for the Southern District of Ohio, Western Division, and the order of removal was made.

In said petition they say that they are citizens and residents of the state of New York;

that August Vos is a citizen and resident of the state of Kentucky, and William Stix is a citizen and resident of the state of Missouri. They further say that the said suit "is one of a civil nature, where the matter in dispute exceeds, exclusive of interests and costs, the value of $2000, and is one in which there is a controversy on cross-petition between citizens of different states." They then state the facts, in substance, averred in their said petition filed May 12, and in said cross-petition of August Vos, the dismissal of their said petition, June 8, and their remaining in the case only as defendant to said cross-petition of Vos.

On October 2, 1888, the transcript of the record in said case was filed in the said circuit court, and numbered therein 4182.

On October 4, 1888, the said Vos filed his motion in said circuit court for the remanding of said cause No. 4182 to the superior court of Cincinnati, for want of jurisdiction in said circuit court.

On November 17, 1888, the circuit court overruled said motion. To which overruling the said Vos then entered his exception.

On November 26, 1889, on motion of the said complainants, said cause No. 4182 was consolidated by order of court with said cause No. 4148, all further proceedings to be had under the latter number.

In No. 4148, complainants' bill states the citizenship and residence of the parties as in their petition in the superior court case. They were all non-citizens and non-residents of Ohio. It alleged that said Robb and Strong, trustees, owned certain valuable real estate in the city of Cincinnati, Ohio, which was in the possession of tenan's under a lease for the life of two persons for whom said trustees acted. A judgment creditor of the lessee sought by judicial proceedings in the *court of common [27 pleas of Hamilton county, Ohio, to subject his interest in these and other lands to payment of his claim. The petition was in the nature of a creditor's bill, and made parties defendant a number of persons, including said trustees, holding deeds from the lessee, and charged that these deeds were intended as mortgages, and prayed that they be so decreed, and the property sold to satisfy said judgment.

The trustees were non residents, and Kebler, of the law firm of Kebler & Roelker, and purporting to act for that firm, entered their ap pearance in the case and consented to a sale of the fee, it is alleged, without their authority or knowledge. The property was sold at judicial sale, and the proceeds received by Kebler and not paid over or accounted for by him to said trustees. The defendants, Vos and Stix, were purchasers. The bill seeks to avoid the title so acquired by them, on the ground that the sale was absolutely void by reason of the fraud of Kebler.

On August 2, 1888, the defendant, Vos, filed a demurrer to said bill.

On August 28, 1888, the court held the bill "good on its face substantially," and overruled the demurrer, and allowed Vos until the first Monday of October, 1888, to plead or answer to the bill.

On September 14, 1888, Vos filed a plea to said bill, setting forth the judicial proceedings referred to in said bill, and contained in Ex

On September 27, 1888, the court overruled 28] said plea, to *which said Vos entered his exception, and was allowed thirty days to answer, which time was, on November 26, 1888, extended to December 10, 1888.

On December 8, 1888, said Vos filed his answer to said bill.

In this answer Vos admits specifically all the allegations of said bill, except the following, which he denies, to wit: He denies that the said Kebler and Kebler & Roelker had no authority to accept service of summons for said complainants in said Gugenheim case. He denies that said complainants had notice or knowledge of their answer and cross-petition in said case filed by said Kebler, or of their answer to the cross-petition of William Stix filed therein by said Kebler, or that said Kebler was not authorized to file the same. He denies that said Robb and Strong, trustees, did not consent that said premises should be sold free from their claim and title thereto, or that said claim and title should be transferred to or reserved in the proceeds of sale to be made under said decree, or that said Kebler and Kebler & Roelker had no authority to make or give such consent for them. He denies that said complainants had no knowledge of the order of distribution of the proceeds of said sale made in said cause, or of the payment of said sum of $11,361.65 to said Kebler, or that said Kebler was not authorized to receive said sum, or that the order of court directing such payment was null and void. He denies that said Kebler was wholly insolvent at all times mentioned in said bill. He denies that prior or at the time of his purchase of said premises he knew complain ants were absent from the state of Ohio, or non-residents of said state during the time of said proceedings. He denies that the proceedings and acts taken and done in said cause, purporting to be on behalf of said complainants, were without authority, notice, or knowledge, or that they were done solely by fraud of said Kebler, or that they were ignorant of said suit and the proceedings therein and of the receipt of said money by said Kebler until after his death. He denies that the said decree in said cause was null and void as to said complain29] ants, or that the said *court of common pleas was without jurisdiction to order the said premises sold free from their claim and title, or that said sale and conveyance to him by said Tyler were null and void. He denies that no rent had been paid under said lease since February 5, 1886, or that there was due and unpaid rent since that date at the rate of $600

Of the truth of the charge in said bill, that the said Kebler embezzled and appropriated said sum of $11,361.65 to bis own use, and that said complainants received no part of the same, or of the charge therein that said Loth was insolvent, this defendant avers that he had no knowledge, and did not admit the same. Admitting that he had failed and refused to perform any of the covenants and conditions of said lease as charged in said bill, he avers that he was under no obligation to perform the same, but that, by virtue of said sale and conveyance to him of the premises so purchased by him and the consideration of $9100, which he paid therefor, he acquired a perfect title to said premises in fee simple, including all the right, title, and interest of both said lessors and said lessee, and free from the claims of all the parties to said suit.

Further answering, said Vos avers that at the time said deed was made by said Loth to said Robb and Strong, trustees, and said lease by them back to him, the transaction was understood and intended to be in fact a mortgage to secure an investment then made of $10, 000 by said trustees for the purpose of furnishing an income to the said Ellen W. and Mary Robb; that at the same time it was understood and agreed between said trustees and said Kebler, and said Kebler & Roelker, that the said Kebler should have entire charge of said investment and collection of said rent or interest and pay same directly to said Ellen W. and Mary Robb, with full authority to act for said trustees in carrying out said trust in all matters required for the protection and collection of said interest and principal, and in pursuance thereof, that he did, with the knowledge and consent of said trustees, collect interest on said $10,000, paid as rent from February 5,1885, down to *November 1, 1887, and paid the [30 same over to said Ellen W. and Mary Robb.

And, further answering, said Vos avers that any alleged want of authority on the part of said Kebler, or Kebler & Roelker, to do any and all of the acts by him or said firm done and in said bill mentioned, was supplied, and all such acts purporting to be done on behalf of said complainants, were ratified by them as follows: Said complainants, on March 2, 1888, in the court of common pleas of Hamilton county, Ohio, in the case of William J. Coppock, Adm'r, v. John Kebler et al.. No. 79,812, on the docket of said court, voluntarily entered their appearance and filed their answer and cross petition; and again, on April 10, 1888, in the same court, in the case of William J. Coppock, Adm'r, v. John Kebler et al., No. 79,902, on the docket of said court, said complainants having, on cross-petition of Frederick G. Roelker, been made parties defendant in said cases, voluntarily entered their appearance and filed their answer and cross-petition in each of said cases, being in the same language, and in each case averring that said Charles A. Kebler, for his firm of Kebler & Roelker, had entered the appearance of said Robb and Strong, trustees, in said action in the bill mentioned, brought by said Gugenheim, and had filed an answer therein on their behalf, and that on May 11, 1887, said firm of