[48] [49] N ERROR to the Supreme Court of the State | the local land office between these parties as IN ERROR to t The history and facts appear in the Statement of the case by Mr. Justice Field: This case comes before us from the Supreme Court of California. The plaintiff in the court below, the defendant in error here, is the holder of a patent of the United States for certain lands situated in Humboldt County, in that State, issued to him under the preemption laws upon proof of settlement and improvement, and the present action is to recover their possession. In his complaint he alleges his ownership in fee of the premises on a day designated, the entry thereon of the defendant without license, and the subsequent withholding of them; also that the value of the annual rents and profits of the premises is $800, for which sum and the restitution of the premises he prays judgment. The answer of the defendant denies the several allegations of the complaint, and sets up in a special count, by way of a cross complaint, various matters, which, as he insists, constitute in equity a good defense to the action and entitle him to a decree; that he has an equitable right to the premises; that the plaintiff holds the title in trust for him; and that the plaintiff should be required to convey the same to him. The matters set up as grounds for equitable relief are the previous settlement upon the premises and their improvement by the defendant, and certain proceedings taken by him to acquire the title under the preemption laws, which were disregarded and held insufficient by the Land Department of the Government, but which he contends establish his right to the patents. It appears from the record and findings of the court that in October, 1862, the defendant purchased from his brother William, then in occupation of the land, the possessory right of the latter to the premises and his improvements thereon, received a deed from him, and immediately thereafter went into possession which was held until March 23, 1865; that on that date, in consideration of $600 partly paid in cash, and partly payable in installments, the defendant contracted to convey the premises and improvements to the plaintiff Dilla, who thereupon was put into possession and continued in possession until the 5th of May, 1868; that he was then evicted under a judgment obtained by the defendant upon the contract of purchase, and the latter was restored to the possession. In July, 1869, the defendant removed to Arcata, about twenty miles distant, and remained there until October, 1871, when his family went back to the land, followed by himself in December. In April, 1872, he moved to Mattole, about eighty miles distant, and there remained until August, 1874, when he again returned. In October following he again moved to Arcata and did not return until March, 1875. The land was surveyed in 1873, and the plat thereof filed in the Land Office in October of that year. On the 3d of that month the defendant Bohall filed his declaratory statement, alleging settlement on October 22, 1862, and claiming the land. On the 26th of December following, the plaintiff Dilla filed his declaratory statement, alleging settlement under the preemption laws on the 25th of March, 1865, and claiming the land. A contest thus arose in to which was entitled to the land under the preemption laws. The register and receiver of the land office differed in their judgment, the receiver holding that the land should be awarded to Dilla, and the register that it should go to Bohall. The contest was thereupon transferred to the General Land Office at Washington, and the Commissioner sustained the claim of Dilla, holding that, from the time of his settlement in 1865 until ejected in 1868, he had fully complied with the law; that his absence since then was compulsory, as he was unable to make a residence on the land without being in contempt of the court under whose judgment he was evicted; that his non-residence was for that reason excusable, and should not be allowed to work against him. But as to Bohall, the Commissioner held that his residence on the land had not been continuous since his settlement, but had been interrupted by residence elsewhere for several periods; and that the occupation of tenants during such periods did not satisfy the provisions of the preemption laws, which required the continuous personal residence of the preemptor; and therefore his claim was rejected. The decision of the commissioner was affirmed on appeal by the acting Secretary of the Interior. It is upon this ruling, charged to be erroneous, that the defendant relies to maintain his claim for equitable relief. The local state court, upon these facts and others not material to the case, adjudged that the defendant was entitled to the decree prayed; but the Supreme Court of the State held otherwise and reversed the judgment; and, as there was no finding as to the value of the rents and profits of the premises, ordered a new trial if the plaintiff so elected. Upon the filing of the remittitur in the lower court, the plaintiff waived his privilege of a new trial, and the court thereupon, on the pleadings and previous findings, gave judgment for the plaintiff, which was affirmed by the Supreme Court of the State; and this judgment is brought here for review. Messrs. W. W. Cope and S. M. Buck, for plaintiff in error. Mr. Walter Van Dyke, for defendant in error. Mr. Justice Field delivered the opinion of the court: The system of pleading in civil cases in the courts of California permits an equitable defense to be set up in a special count, by way of cross complaint, in the answer to an action for the possession of lands. The cross complaint is in the nature of a bill in equity, and must contain its material allegations, disclosing a case which, if established, would entitle the defendant to a decree enjoining the further prosecution of the action, or directing that the title be conveyed to him. This equitable defense is therefore to be first considered, for, according to its disposition will the necessity exist for further proceedings in the action at law, in which the legal title of the parties will alone control. Quinby v. Conlan, 104 U. S., 420 | Bk. 26, L. ed., 800]; Estrada v. Murphy, 19 Cal., 248, 273; Arguello v Edinger, 10 Id., 150. We do not think the claim of the defendant to the equitable relief he seeks can be sustained on the grounds stated in his answer or cross [50] and distinct cause of action, on which a separate complaint. To charge the holder of the legal | 3, 1875, refers only to suits where exists a separate title to land under a patent of the United States, as a trustee of another, and to compel him to transfer the title, the claimant must present such a case as will show that he himself was entitled [51] to the patent from the Government, and that, in consequence of erroneous rulings of the officers of the Land Department upon the law applicable to the facts found, it was refused to him. It is not sufficient to show that there may have been error in adjudging the title to the patentee. It must appear that by the law properly administered the title should have been awarded to the claimant. Smelting Co. v. Kemp, 104 U. S., 636, 647 [Bk. 26, L. ed., 875, 879]; Boggs v. Merced Mining Co., 14 Cal., 279, 363. It is [52] 3. A defendant cannot make an action severa} which a plaintiff has elected to make joint. Submitted Dec. 22, 1884. Decided Mar. 23, 1885. [No. 856.] IN ERROR to the Circuit Court of the Unit ed States for the Southern District of New York. the opinion of the court. Mr. John L. Cadwalader, for plaintiff in error. Mr. Austin G. Fox, for defendant in error. Mr. Chief Justice Waite delivered the opinion of the court: gan therefore immaterial for the decision of this case The alleged fraud of Dilla in obtaining possession under the alleged contract, if any such fraud existed, could have had no effect upon the defendant's residence after his restoration to the land in May, 1868. As he could not maintain his equitable defense, the plaintiff was entitled to judgment upon his legal title as shown by his patent. Judgment affirmed. True copy. Test. James H. McKenney, Clerk, Sup. Court, U. s. knowledged the receipt of the cotton to be trans ited-115 U. S., 413; 116 U. S., 50. LOUISVILLE AND NASHVILLE RAIL- v. CHARLES W IDE.. (See 8. C., Reporter's ed., 52–57.) Removal of causes-joint action against several ported over their line and delivered to the re- The Louisville and Nashville and the New NOTE.-Removal of causes under Act of 1875; citizenship. See Del., etc., Co. v. Meyer, 100 Ú. S., XXV., 1. The last clause of section 2 of the Act of March 593, note. [53] [54] eral defendants, and that they were each and iff, a citizen of the State of New York, and the The petition for removal was filed under the "And when in any suit *** 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 for the proper district.' " As we have already said at this Term in Ayres In the present case all the defendants are sued jointly and as joint contractors. There is more than one contract set out in the complaint, and there is therefore more than one cause of action embraced in the suit; but all the contracts are alleged to be joint and binding on all the defendants, jointly and in the same right. There is no pretense of a separate cause of action in favor of the plaintiff and against the Louisville and Nashville Company alone. The answer of the company treats the several causes of action alike and makes the same defense to all. For the purposes of the present inquiry the case stands as it would if the complaint contained but a single cause of action. The claim of right to a removal is based entirely on the fact that the Louisville and Nashville Company, the petitioning defendant, has presented a separate deIt also appears from the statements in the pe- fense to the joint action by filing a separate antition for removal, that the New York Central swer tendering separate issues for trial. This, and Hudson River Company filed a separate an- it has been frequently decided, is not enough swer in the State Court, but that answer has not to introduce a separate controversy into the suit been copied into the transcript. The Louisville within the meaning of the statute. Hyde v. Ruand Nashville Company on filing its answer ble, supra; Ayres v. Wiswall, supra. Separate presented to the State Court a petition for the answers by the several defendants sued on joint removal of the suit to the Circuit Court of the causes of action may present different questions United States for the Southern District of New for determination, but they do not necessarily York, which was the proper district, on the divide the suit into separate controversies. ground" that there is in said suit a controversy defendant has no right to say that an action which is wholly between citizens of different shall be several which a plaintiff elects to make States, namely: a controversy between the plaint-joint. Smith v. Rines, 2 Sum., 348. A sepa [55] [56] Mr. Charles E. Perkins, for defendant in error. Mr. Chief Justice Waite delivered the opinion of the court: rate defense may defeat a joint recovery, but it | Swayne, Lewis E. Stanton and Edward W. Bell, This is a writ of error for the review of an order of the Circuit Court remanding a suit to a State Court. The suit was brought in the Superior Court of the County of Hartford, Connecticut, by George E. Ingraham, the defendant in error, a citizen of Connecticut, against N. D. Putnam and Henry Earle, citizens of New York, and W. G. Morgan, a citizen of Connecticut, as partners in business under the ance claimed to be due from the partnership on an account for money lent, paid out and expended, and upon a note of $5,000, made by W. G. Morgan to the order of Putnam, Earle & Co. and by the firm indorsed to Ingraham. The complaint contained simply the common counts, but a bill of particulars subsequently filed disclosed the true nature of the claim to be the note, and an account for the purchase and sale of stocks beginning August 17, 1883, and ending February 29, 1884. It is said, however, that by the New York Code of Civil Procedure, section 1204, "judg-name of Putnam, Earle & Co., to recover a balment may be given for or against one or more plaintiffs, and for or against one or more defendants," and under this it has been held that when several are sued upon a joint contract, and it appears that only a portion are bound, the plaintiff may recover against those who are actually liable. The same rule undoubtedly prevails in many other States, but this does not make a joint contract several, nor divide a joint suit into separate parts. It may expedite judicial proceedings and save costs, but it does not change the form of the controversy, that is to [57] say, the case. The plaintiff can still sue to recover from all, though he may be able to succeed only as to a part. The order remanding the case is affirmed. Dissenting: Mr. Justice Harlan. The defendants, Putnam and Earle, filed a separate answer, which contained: 1. A general denial of all the allegations in the complaint; 2. An averment as to the account, that the alleged loans were all made to the defendant Morgan for his individual and private use, and not to the firm; 3. An averment as to the note, that it was given for money loaned to W. G. Morgan alone for his individual use, and not to the firm, and that it was indorsed by Morgan in the name James H. McKenney, Clerk, Sup. Court, U. S. of the firm by collusion between him and In Cited-114 U. S., 59, 62; 115 U. S., 42, 61, 259. N. D. PUTNAM ET AL., Piffs. in Err., v. GEORGE E. INGRAHAM. Removal of causes-joint action against several 1. The last clause of section 2 of the Act of March 3, 1875, has no application to cases in which the defendants are sued jointly and as joint contractors. The preceding case of The Louisville and Nashville R. R. Co.v. Ide, ante, 63, affirmed. 2. A separate controversy is not introduced into the case by separate defenses to the same cause of action. 3. The fact that one of the defendants is in default is unimportant. [No. 1246.] Submitted Mar. 2, 1885. Decided Mar. 23, 1885. IN ERROR to the Circuit Court of the United States for the District of Connecticut. The history and facts of the case appear in the opinion of the court. See, also, the ing case of L. & N. R. R. Co. v. Ide. Messrs. Herbert E. Dickson, graham, and with intent to defraud Putnam Morgan has never answered the complaint, "And your petitioners further say, that in tween them, to wit: a controversy between the Upon the presentation of this petition the Superior Court declined to enter an order for the removal of the cause. Thereupon the petitioners entered a copy of the record in the Circuit [58] [59] [60] Court of the United States. This being done, We are unable to distinguish this case mate- promises and undertakinonnecticut, have fled a separate answer in which they deny their lia- In Connecticut, as in New York, "judgment corporated company of that State and a citizen of Submitted Mar. 2, 1885. Decided Mar. 23, 1885. APPEAL from the Circuit Court of tot mis ion of the court: cuit Court of the United States remanding a The fact that Morgan has not answered but is in default is unimportant. The suit is still on joint causes of action, and the plaintiff, if he sustains the allegations of his complaint at the trial, will be entitled to a joint judgment against all the defendants. The default places the parties in no different position with reference to a removal than they would occupy if Morgan had answered and set up an entirely different defense from that of the other defendants. A separate controversy is not introduced into the case by separate defenses to the same cause of action. The order to remand is affirmed. The Company and the Seligmans filed separate answers, but setting up substantially the James H. McKenney, Clerk, Sup. Court, U. s. same defense, to wit: that the stock, though True copy. Test: Cited-115 U. S., 61, 259. ST. LOUIS AND SAN FRANCISCO RAIL- v. WILLIAM C. WILSON. (See S. C., Reporter's ed., 60-62.) Removal of causes-action against a citizen of standing in the names of the Seligmans, did not The petition for removal was presented by NOTE.-Removal of causes under Act of 1875; citt zenship. See Meyer v. Delaware, etc., Co., 100 U.S., An action brought in a State Court against an in- bk. 25, 593, note. [61] |