A creditor's bill, to subject encumbered property to the payment
of his judgment, by sale and distribution of the proceeds among
lienholders according to priority, creates no separate controversy,
as to the separate lienholders parties respondent, within the
meaning of the removal acts, although their respective defenses may
be separate.
The case is stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This is an appeal under section 5 of the Act of March 3, 1875,
18 Stat. 470, c. 137, from an order of the circuit court remanding
a suit which had been removed from a state court. The case is
this:
Collis P. Huntington, a citizen of New York, recovered a
judgment in the Court of Common Pleas of Scioto County, Ohio, on
the 29th of May, 1885, against the Scioto Valley Railroad Company,
an Ohio corporation, for $639,305.67. Executions were afterwards
issued upon this judgment, and levied upon the railroad, rolling
stock, and other personal property of the company. This property
was covered by several mortgages or deeds of trust, one to the
Fidelity Insurance, Trust & Safe Deposit Company, a
Pennsylvania corporation; another to Samuel Thomas, a citizen of
New York; another to the Central Trust Company of New York, a New
York corporation; another to Henry K. McKarg, a citizen of New
York; another to the Metropolitan Trust
Page 117 U. S. 281
Company of the City of New York, a New York corporation, and
others to various citizens of Ohio. Such being the condition of the
property, Huntington began a suit in the Court of Common Pleas of
Scioto County, the object of which was to marshal the liens, and
obtain a sale of the property, free of encumbrance, to pay his
judgment, after satisfying all prior claims, and in the meantime to
have a receiver appointed. To this suit all the several lienholders
were made parties, and the Fidelity Insurance, Trust and Safe
Deposit Company answered, setting up its mortgage as a first lien,
and asking that the property be sold and the proceeds applied to
the satisfaction of that mortgage debt. This being done, the same
company presented a petition for the removal of the suit to the
circuit court of the United States on the ground that there was in
the suit a controversy which was wholly between citizens of
different states, and which could be fully determined as between
them, to-wit, a controversy between the petitioner, a citizen of
Pennsylvania, and Huntington, the plaintiff, and all the
defendants, except the petitioner, citizens of states other than
Pennsylvania. When the suit was entered in the circuit court it was
remanded, and to reverse that order this appeal was taken.
The suit as brought by Huntington is a creditors' bill to
subject encumbered property to the payment of his judgment by a
sale and distribution of the proceeds among lienholders according
to their respective priorities. There is but a single cause of
action, and that is the equitable execution of a judgment against
the property of the judgment debtor. This cause of action is not
divisible. Each of the defendants may have a separate defense to
the action, but we have held many times that separate defenses do
not create separate controversies within the meaning of the removal
act.
Louisville & Nashville Railroad Co. v. Ide,
114 U. S. 52;
Putnam v. Ingraham, 114 U. S. 57;
Pirie v. Tvedt, 115 U. S. 41;
Starin v. New York, 115 U. S. 248;
Sloane v. Anderson, ante, 117 U. S. 275. The
judgment sought against the Fidelity Company is incident to the
main purpose of the suit, and the fact that this incident relates
alone to this company does not separate this part of the
controversy
Page 117 U. S. 282
from the rest of the action. What Huntington wants is not
partial relief settling his rights in the property as against the
Fidelity Company alone, but a complete decree which will give him a
sale of the entire property free of all encumbrances, and a
division of the proceeds as the adjusted equities of each and all
the parties shall require. The answer of this company shows the
questions that will arise under this branch of the one controversy,
but it does not create another controversy. The remedy which
Huntington seeks requires the presence of all the defendants, and
the settlement not of one only, but of all the branches of the
case.
The order remanding the case is
Affirmed.
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