Torrence v. Shedd

STATEMENT BY MR. JUSTICE GRAY.

This was a bill in equity, filed August 29, 1881, in the superior court of Cook county, in the state of Illinois, by Joseph T. Torrence against Susan M. Shedd, John B. Brown, and 90 others, for partition of a tract of land in that county, to an undivided third of which the plaintiff claimed title under a deed from Edward Sorin. Brown and 20 others were not served with process. Most of the other defendants appeared and answered, denying the plaintiff's title, and claiming title in themselves to the whole in separate shares.

A decree of the superior court dismissing the bill was reversed, on appeal, by the supreme court of Illinois, and the case remanded to the superior court for further proceedings. 112 Ill. 466.

Afterwards, on May 5, 1885, Sorin was allowed, against the plaintiff's objection, to intervene, and to file an answer and cross-bill, admitting his deed to the plaintiff, but alleging that it was only in trust for Sorin, and that the plaintiff, in violation of the trust, had refused to reconvey the land to Sorin, and had agreed to convey it to Brown, and claiming an equitable title in whatever should be set off to the plaintiff. The plaintiff and Brown demurred to the cross-bill, and others of the defendants answered that bill, alleging that they were strangers to the controversy between the plaintiff and Sorin, and denying the title of both.

On May 18, 1885, the plaintiff and Brown filed a petition under the act of March 3, 1875, c. 137, § 2, for the removal of the case into the circuit court of the United States, alleging that by reason of Sorin's intervention and appearance, answer, and cross-bill, a separate controversy was presented between citizens of different states, which could be fully determined as between them in that court, and in which the matter in dispute exceeded $500 in value; and that at the time of filing the petition for removal, and for five years before, the petitioners were citizens of Illinois, and Sorin was a citizen of Indiana, and none of the other defendants were citizens of Indiana, or had any interest in this controversy.

The case was thereupon removed into the circuit court of the United States, which sustained the demurrer to Sorin's cross-bill, and dismissed that bill, and referred the case to a master, who filed his report on July 3, 1886.

On December 2, 1886, the plaintiff filed a stipulation between himself and Brown and Sorin, which was as follows: 'It is hereby stipulated between Joseph T. Torrence, complainant, and John B. Brown, one of the defendants, and Edward Sorin, also a defendant in the above-entitled cause, that said Edward Sorin is entitled to a lien to the extent of $400 per acre upon each and every acre of land which said complainant, Torrence, may recover in the above-entitled cause; and in any decree which may be entered therein the court many recognize and declare and make all necessary orders to enforce such lien. And the said defendant Edward Sorin withdraws all allegations contained in his answer in said cause filed, and all claim that the conveyance made by said Sorin to said Torrence, in said answer mentioned, was executed to convey the said title to said Torrence to be held by him in trust for said Sorin, and not as an absolute conveyance of said land; and, further, he withdraws and renounces any and all claims against and upon said land other than for a lien to secure the purchase money of four hundred dollars per acre for the amount of land which may be recovered by said Torrence.'

On the same day the plaintiff filed a motion to remand the cause to teh state court, on the ground that, 'by reason of said stipulation, there no longer exists in the said cause any controversy, separable or otherwise, as between the said complainant and said Edward Sorin, cross-complainant therein and defendant to the said original bill, and that by reason thereof this court can no longer have any jurisdiction of said cause.'

The circuit court denied the motion to remand, and, after a hearing on pleadings and proofs, entered a final decree dismissing the bill. The plaintiff appealed to this court.

C. M. Osborn, for appellants.

Frederic Ullman and ''Wm. Ritchie'', for appellees.

Mr. Justice GRAY, after stating the case as above, delivered the opinion of the court.