CIRCUIT COURT, W. D. NORTH CAR- Alpena, The..

CASES

ARGUED AND DETERMINED

IN THE

Anited States Circuit and District Courts

CHESTER V. CHESTER and others.

(Circuit Court, W. D. Tennessee. April 25, 1881.)

1. REMOVAL OF CAUSES-ACT MARCH 3, 1875-RESULTING TRUST-INSEPARABLE CONTROVERSY.

A bill in equity to establish a resulting trust in land in possession of a mortgagor, upon facts occurring before the mortgage, to which the mortgagee, a citizen of another state than the plaintiff, is made a defendant, cannot be removed to the federal court on his application, where the mortgagor, being also a defendant, is a citizen of the same state with the plaintiff, the controversy of the plaintiff with either defendant being inseparable from the other.

2. SAME SUBJECT.

Cases since Judge Dillon's second edition of Removal of Causes cited in a note.

Motion to Remand.

The plaintiff and all the defendants are citizens of Tennessee, except the Life Association of America, which is a Missouri corporation, now dissolved, and represented by W. S. Relfe, its statutory assignee, who is a citizen of Missouri and a substituted defendant. The bill alleges that Robert H. Chester, one of the defendants, was the plaintiff's guardian, v.7,no.1-1

and as such was possessed of her money; that he, with Robert I. Chester and W. B. Chester, other defendants, executed a trust mortgage to secure a debt due the life association upon certain lands in Madison county, Tennessee,—another defendant, C. B. Wellford, being the trustee, with usual powers of sale; that in 1859, long before this trust deed was executed, a certain part of this land had been levied on under an execution and sold by the sheriff as the property of the defendant Robert I. Chester, and redeemed by the payment to the creditor of the plaintiff's money, this being done by her guardian for the benefit of Robert I. Chester, but without any legal obligation to do it; that this was done after the time for redemption had expired, and, by contract of the parties, the purchaser executing a quitclaim to Robert I. Chester; that, having now come of age, she elects to follow her money into this land, and claims it as hers, a trust having resulted in her favor; that, as to the other part of the land conveyed in the deed of trust, her guardian has used other parts of her money in making payments on the debt secured to the Life . Association, whereby the amount has been reduced; that all the parties, including the corporation, had knowledge of the facts and all her equities, and participated in the wrongful conversion of her funds by her guardian; and as to the land not included in her claim under the redemption contract she claims a right to be substituted to the company's security and priority of satisfaction. The bill prays for relief according to these alleged facts, and, on an allegation that the corporation is insolvent and non-resident, prays an attachment and injunction. The attachment was refused, but the trustee was enjoined from selling. The bill alleges that the Chesters are in possession of the land. Relfe appeared in the state court, was allowed to become a party, and immediately filed his petition and bond to remove the cause to this court, and the plaintiff now moves to remand for want of jurisdiction. The petition for removal alleges that the matters in controversy are those in which the plaintiff and the petitioning defendant "are solely interested," and that they "are wholly between the said plaintiff on the one side and your petitioners on the