one defendant, his co-tenant.17 In a suit to set aside part of a will and for a partition of the property thereby devised a defendant who would share in the partition but who was a legatee under the will was considered as upon the side of the controversy opposite to that of plaintiffs.18 Complainants filed a bill in a Circuit Court of the United States in California against defendants, who were citizens of that State alleging that complainants were heirs at law of a decedent from whom, prior to his death, one of the defendants, who was also a brother and one of his heirs, had procured a conveyance of all his property without consideration, which was invalid by reason of the decedent's insanity; that subsequently such defendant, who was insolvent, had conveyed such property to his co-defendant in payment of an antecedent indebtedness. The prayer of the bill was that the conveyances be set aside as to such shares of the property as would have been inherited by complainants. It was held, that the court could not determine from such allegations and prayer that the interest of the defendant, who was a co-heir with complainants, would be best served by their success, so as to require such an arrangement of parties as would make him a complainant, and defeat the court's jurisdiction; there being no proof of fraud or collusion by him and complainants. 19

In a suit to set aside a marriage and for a partition of the dead husband's land where the sole defendant was his wife, a citizen of West Virginia, who had qualified as administratrix of his estate, it was held that since all the heirs were citizens of Pennsylvania there could be no jurisdiction unless they filed a disclaimer of all right to attack the validity of the marriage.20 In a suit by a wife's administrator to set aside a deed given by her and her husband and a second deed by such grantee to another it was held that her husband although made a defendant was on the same side of the controversy as the plaintiff.21 In a suit by heirs against the executor to secure a construction of the will, contending that it gave the executor the residuary estate

17 Morse v. South, 80 Fed. 206. But see German Savings & Loan Soc. v. Tull, C. C. A., 136 Fed. 1. 18 Sutton v. English, 246 U. S.

19 Reavis v. Reavis, 98 Fed. 145. 20 Hastings v. Douglass, 249 Fed. 378.

21 Grigsby v. Miller, 231 Fed. 521.

in trust for them and another heir whose administrator was joined as defendant; it was held that such administrator was on the plaintiff's side of the controversy.22

In a garnishee proceeding after judgment, it was held, that the judgment debtor was on the same side of the controversy as the judgment creditor.23 In a suit by contractors against their bondsman, the person who had employed them and claimants against the balance due them; it was held that the bondsman was on the plaintiff's side of the controversy.24 In an action on a bond secured by a mortgage, brought by citizens of one State against the citizens of another, one of the defendants, by her answer, prayed that the mortgage and bond be declared valid and foreclosed for her benefit and that of plaintiffs. The bond and mortgage were not divisible. All the defendants, including the one praying for relief, were citizens of the same State. It was held, that the Federal Court had no jurisdiction as it was substantially an action between citizens of the same State.25

An Ohio corporation filed a bill in a Federal Court in West Virginia against B., as trustee and individually, M., A., P., K., and the personal representative and heirs of G., all of whom were citizens of West Virginia, and a Pennsylvania corporation, alleging that land owned by plaintiff and by K. and G. was conveyed to B., as trustee, to sell, and pay the proceeds to plaintiff, K., and G.; that B. conspired with M., P. and A., who, on G.'s death qualified as his personal representative, and pursuant thereto, the value of the land having greatly increased, sold it to M. for much less, fraudulently concealing from plaintiff the fact of the increase; that the consent of K. to the sale was obtained by permitting him to retain a one-fifth interest in the land, the other four-fifths being held by A., who joined the conspiracy to defraud G.'s heirs, M., P. and B.; and that after title was conveyed by B. to M. the land was leased to the P. Co. for a bonus much larger than the price accounted for by B., with a royalty on oil taken from the land and other rentals and payments. Complainant prayed that M., B., A., P., and

22 Thomas v. Anderson, C. C. A., 223 Fed. 41.

23 Baker v. Duwamish Mill Co., 149 Fed. 612.

24 John W. Hod & Co. v. Board of School Directors, 210 Fed. 384. 25 Blacklock v. Small, 127 U. S. 96, 32 L. ed. 70.

K. be decreed to account for and pay over to plaintiff K., and the heirs of G., moneys received from the Pennsylvania Company, and that the latter be required to attorn to such beneficiaries. It was held: that the real controversy was as to the fraud alleged to have been committed by B., A., M., P. and. K.; that plaintiff and the heirs of G. were, on the one side, opposed to the other parties; that such heirs were indispensable parties, and, being citizens of the same State as part of the other defendants, the court was without jurisdiction.26 In an action against the trustee of a deed of trust and his cestui que trust, brought by the assignee in insolvency of the grantor to prevent a sale of the property and for an accounting between the grantor and the beneficiary, the trustee is an indispensable party adverse in interest to the plaintiff, and, if a resident of the same State as the plaintiffs, the District Court of the United States has no jurisdiction of the action as a controversy between citizens of different States, although the cestui que trust is a citizen of a different State.27

In a suit by a judgment creditor to set aside a fraudulent conveyance by his debtor it was held that the latter's trustee in bankruptcy was on the plaintiff's side of the controversy.28 In a suit by an attaching creditor to set aside a judgment obtained against the debtor by confession, it was held, that other attaching creditors, whom he had joined as defendants, were on the same side of the controversy as the plaintiff 29

In a suit by the trustee of a mortgage, to enforce a right of, action held by the mortgagor,30 or to protect the mortgaged property from injury,31 the mortgagor will be considered to be..

26 Trustees of Oberlin College v. Blair, 70 Fed. 414.

27 Peper v. Fordyce, 119 U. S. 469, 30 L. ed. 435.

28 Casey v. Baker, 212 Fed. 247. 29 Pollok v. Louchheim, 19 Fed. 465.

30 Dawson v. Columbia Trust Co., 197 U. S. 178, 49 L. ed. 713; Williams v. City Bank & Tr. Co., C. C. A., 186 Fed. 419; Mahon v. Guaranty Trust & Safe Deposit Co., C. C. A., 239 Fed. 266. See Adams

v. City of Woburn, 174 Fed. 192. But see City of Denver v. Mercantile Trust Co., C. C. A., 201 Fed. 790, supra, § 25, infra, § 43.

31 Consol. Water Co. v. Babcock, 76 Fed. 243; Boston S. D. & Tr. Co. v. Racine, 97 Fed. 817; Old Colony Tr. Co. v. Atlanta Ry. Co., 100 Fed. 798. Cf. Mercantile Tr. & D. Co. v. Collins P. & B. R. Co., 99 Fed. 812. But see Knickerbocker Tr. Co. v. City of Kalamazoo, 182 Fed. 865.

1

1

on the same side of the controversy as the complainant, unless it clearly appears that he is actively opposed to the relief prayed.32 But in a suit to enjoin striking employees of a contractor with complainant, from intimidating the contractor, it was held, that such contraltor, although he did not oppose the relief sought could not be aligned on the same side of the controversy as the plaintiff so as to defeat the jurisdiction.33

In a suit by a bondholder or other cestui que trust, to enforce a right after his trustee has refused to sue upon the same, the defendant trustee is considered to be upon the same side of the controversy as the plaintiff; 34 unless the latter seeks some relief antagonistic to the other beneficiaries of the trust,35 or when the plaintiff claims some substantial relief against the trustee 36 In a suit by the beneficiary of a trust to remove the trustee it was held that the trustor was not on the plaintiff's side of the controversy.37

In a suit by the creditors of an insolvent corporation, citizens of another State from the corporation, and its assignees, charg

32 Dawson v. Columbia Trust Co., 197 U. S. 178, 180, 49 L. ed. 713, 715.

33 Carroll v. Cheas. & O. Coal Agency Co., C. C. A., 124 Fed. 305; s. c., as Cheas. & O. Coal Co. v. Fire, Creek C. & C. Co., 119 Fed. 942; Niles Bement-Pond Co. v. Iron Molders' Union, Local No. 68, 246 Fed. 851; Iron Molders' Union v. NilesBement-Pond Co., C. C. A., 258 Fed. 408, reversing 246 Fed. 801.

34 Pacific R. Co. v. Ketchum, 101. U. S. 289, 25 L. ed. 932; Blacklock v. Small, 127 U. S. 96, 32 L. ed. 70; Barry v. Mo. K. & T. Ry. Co., 27 Fed. 1; Needham v. Wilson, 47 Fed. 97; Reinach v. Atlantic & G. W. R. Co., 58 Fed. 33; Shipp v. Williams, C. C. A., 62 Fed. 4; Bowdoin College v. Merrit, 63 Fed. 213; Kildare Lumber Co. v. National Bank, C. C. A., 69 Fed. 2; First Nat. Bank v. Radford Tr. Co., C. C. A., 80 Fed. 569, 573; Dunn v. Waggoner,

11 Tenn. (3 Yerg.) 59; Swann v. Myers, 79 N. C. 101. But see Hack v. Chicago & G. S. Ry. Co., 23 Fed. 356. But see Einstein v. Georgia, So. & F. Ry. Co., 120 Fed. 1008; Hamer v. New York Railways Co., 244 U. S. 266; Sharp v. Bonham, 213 Fed. 660; Georgia Coast & P. R. Co. v. Lowenthal, C. C. A., 238 Fed. 795; Brown v. Denver Omnibus & Cab Co., C. C. A., 254 C. A. 560.

35 Rust v. Brittle Silver Co., C. C. A., 58 Fed. 611; Kildare Lumber Co. v. National Bank, C. C. A., 69 Fed. 2, First Nat. Bank v. Radford Tr. Co., 80 Fed. 569, 571, 573. See Mommonth Inv. Co. v. Means, C. C. A., 151 Fed. 159.

36 Fitz Gerald v. Thompson, 222

U. S. 555, 56 L. ed. 314.

37 Hidden v. Washington-Oregon Corporation, 217 Fed. 303; General Electric Co. v. Richardson, C. C. A., 233 Fed. 84.

ing improper conduct on the part of the assignees and praying for a receiver, it was objected to the jurisdiction of the Federal Court that the action was really one by the corporation against the assignees, and that the suit was brought by the creditors for the purpose of bringing the suit in the Federal Courts. It was held, that as the creditors had the right to sue, this objection was not tenable.38

In a stockholder's suit, the corporation if it is not alleged to be under the control of the defendants or to resist the relief sought should be aligned as a complainant for the purpose of determining the jurisdiction.39 In a stockholder's suit to enforce a right of his corporation, where it is shown that the corporation is under the control of the other defendants, it will be treated as upon the same side of the controversy that they are, for the purpose of determining the jurisdiction.40

In one to prevent the majority of the stockholders from causing the corporation to act in fraud of the minority, the corporation is to be aligned on the same side as the majority stockholders.41 It has been held: that in a stockholder's suit, where the plaintiff has failed to comply with the equity rules by showing efforts to secure action by the other

38 Bell v. Ohio Life Ins. Co., Fed. Cas. No. 1,261.

39 Iron Molders' Union v. NilesBement-Pond Co., C. C. A., 258 Fed. 408, reversing 246 Fed. 851.

40 Doctor v. Harrington, 196 U. S. 579, 49 L. ed. 606; overruling a number of decisions of the lower courts to the contrary. Hyams v. Calumet & Hecla Mining Co., 221 Fed. 529; Whitaker V. Whitaker Iron Co., 238 Fed. 980; Cutting v. Woodward et al., C. C. A., 255 Fed. 633. See Woolsey v. Dodge, Fed. Cas. No. 18,032, 6 McLean, 142; s. c., as Dodge v. Woolsey, 18 How. 331, 15 L. ed. 401; DeNeufville v. New York & N. R. Co., C. C. A., 81 Fed. 10; MacGinniss v. Boston & M. Consol. Copper & Silver Min. Co., 119 Fed. 96, 55 C. C. A. 648; Redfield v. Baltimore & O. R. Co.,

124 Fed. 929; Mills v. City of Chicago, 127 Fed. 731; Groel v. United Electric Co. of New Jersey, 132 Fed. 252; Howard v. Nat. Telephone Co., 182 Fed. 215; Crawford v. Seattle, R. & S. Ry. Co., 198 Fed. 920. Before the decision of Doctor v. Harrington, 196 U. S. 579, 49 L. ed. 606, it was held, that where a stockholder's bill did not conform to the requirement of the equity rules, by showing efforts made to secure action by the stockholders, or an excuse for such failure, the corporation must be aligned with the complainants. Waller v. Coler, 125 Fed. 821.

41 De' Neufville v. New York & N. Ry. Co., C. C. A., 81 Fed. 10; Redfield v. Baltimore & O. R. Co., 124 Fed. 929; Elkins v. Chicago, 119 Fed. 957.