pany. and upon his cross-bill and answer he has separate controversies with that company and the original complainants. Each of these controversies is between, and may be wholly determined between, citizens of different states. Indeed, each claimant in the original bill, -and there are three of them,-and each additional claimant who has or may come in under that bill, has a separate claim which Porter does or may contest; and the controversy so raised is clearly separable, and determinable wholly between him and the particular claimant as if there were no other parties to the record. And one of the claimants in the case is, as I understood it to be stated and conceded upon the argument, a citizen of the state of Michigan; and as against him, even if New were an actual and willing party and ranged upon the same side of the case with Porter, there would be, in this view, a proper controversy upon which the application for removal could stand. This would certail)ly be so, unless the railway companyshould be deemed a necessary party to such controversy. This question, however, need not be decided. It follows that the transcript and other papers offered should be filed, and the cause docketed here as properly removed. Ordered accordingly.
(Circuit Oourt, N. D. New York.
TRUST-PAYMENT OF PUHCHASE :MONEY FOR LAND, AND TITLE TAKEN IN NAME OF THIRD PARTy-HEV. ST. N. Y. §§ 51, 52.
:M., D., W., and K. entered into II verbal agreement to purchase from J., for their joint benefit, certain land, each of them to advance one-fourth of the purchase money, and the title to be taken in the name of K. The money was advanced, the land purchased, and an absolute de"d executed to K., who immediately delivered to :M., D., and W. II written memurandum acknowledging the receipt of the purchase money, and that each of the co-purchasers was the joint owner of one-fourth part of the land. K became insolvent, and made an assignment to V., and V. a,signed and deeded to S., as assignee in bankruptcy of K., all of the property as·<igned to him. S. sold the land under order of the court. Held, that the purchas"r at sueh sale acquired a good title as against :M., D., and W.
Hale. J; Bulkley, for plaintiff.
F. Fish and John M. Carroll, for defendant. WALLACE, J. This action was brought the supreme court of the state of New York, and was removed to this court upon the petition of the plaintiff. It is a partition suit, brought under the provisions of the Code of Procedure, and the defendants are made parties as claiming an adverse interest to the plaintiff in the real estate sought io be partitioned. The defendant Cornelius Kline,- has the legal title
STEBBIKS V. MORRIS.
to one undivided fourth part of the real estate. The suit involves the rights of the other parties to three undivided one.fourth parts of certain real estate conveyed April 1, 1870, by one Jackson to James W. Kline. Kline was adjudged a bankrupt upon the petition of his creditors filed on the twenty-ninth day of August, 1878, in the United States district court for the Northern district of New York, and one Vandenburg was subsequently appointed his assignee. On the twenty-fourth day of September, 1881, the said Vandenburg as such assignee, pursuant to the direction and order of the court in bankruptcy, sold and conveyed by deed to the plaintiff all the estate, title, and interest of said Kline in said real estate vested in said assignee. Within three months of the filing of the petition in bankruptcy, Kline had made a general assignment of all his property for the benefit of creditors to one Stewart; and on the twenty-seventh day of December, 1878, Stewart, by deed, granted, conveyed, and released to Vandenburg, as signee of Kline in bankruptcy, all the real estate which was transferred to him by Kline under the general assignment. Whether Vandenburg, as assignee of Kline in bankruptcy, acquired Kline's interest by a tItle superior to Stewart's, or acquired it by the deed of release from Stewart, is not material. The title was in him at the time of the sale under the order of the conrt, and the plaintiff acquired any title that the assignee could convey. It follows that the plaintiff had the legal title at the time of the commencement of the suit to the three undivided fourth parts of the land ill question. The defendants claim to be the equitable owners of the three undivided fourth parts of the land, and insist that the plaintiff'sIegal title is subordinate to their equitable title because the plaintiff ii3 chargeable with notice of their equities. Their equitable title arises' out of the foHowing facts: On or before April 1, 1870, Morris, De Wolf, McDonnell, and Kline entered into a verbal agreement to purchase for their joint benefit of Jackson the land in controversy. By this agreement each of them was to advance one·fourth of the purchase money to pay for the land, and the title was to be taken in tile name of Kline. The money was accordingly advanced, and on the first day of April, 1870, a deed was executed hy Jackson to Kline, in which Kline was named sole grantee. The deed did not express any trust in behalf of the co-purchasers. Immediately after receiving the deed, and on the same day, Kline delivered to each of the co-pnrchasers a memorandum in writing, whereby he acknowleged the receipt of the purchaEe money, and that each of the co-purChasers was the joint owner of one-fourth part of the real estate. Kline subsequently mortgaged an undivided fourth part of the land. The title remained in him as sole owner until he became insolvent and made the general assignment to Stewart. Upon these facts it must be held that the defendants who claim under Morris, McDonnell, and De Wolf have no equitable title. If the agreement between Kline and the other co-purChasers had been
made after he acquired title from Jackson, or if the deed from J ackson had not been executed directly to Kline pursuant to the agreement between the co-purchasers, there would be no difficulty in maintaining that all the co-purchasers acquired an equitable title by virtue of the transaction between themselves. But the transaction is directlywithin the operation of thoso sections of the Revised Statutes of the state relating to uses and trusts, which are as follows:
"Sec. 51. Where a grant for a.valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made; but the title shall vest In the person named as the alienee in such conveyance, subject only to the provisions of the next section. "Sec. 52. Every such conveyance shall be presumed fraudulent as against the creditors, at that time, of the person paying the consideration; and where a fraudulent intention is not disproved a trust shall result in favor of such creditors to the extent that may be necessary to satisfy their just demands."
The meaning and effect of these provisions was considered by the court of appeals in Garfield v. Hatmaker, 15 N. Y. 475, and it was held that where a grant for a valuable consideration is made to one person, and the consideration therefor is paid by another, no interest, legal or equitable, ves.ts in the person paying the consideration, but the statute imposes upon the legal estate in the hands of the grantor a pure trust in favor of the creditors at the time of the person paying the consideration, which can be enforced in equity only. As stated in the opinion of BROWN, J., "the plain and obvious import of the language of the sections is to destroy the trust or use which, but for the statute, would have resulted to the person paying the consideration as a legal consequence of the act;" and, in the language of COMSTOCK, J., (page 478,) "the person paying the consideration money must take the conveyance to himself or he can have no legal 61' equi. table interests in the land." In Everett v. Everett,·48 N. Y. 218, such was held to be the legal consequence of the conveyance, although the deed was delivered to and retained by the person who paid the consideration. The object of the statute was to prevent secret frands by imposing the penalty of forfeiture of the estate upon parties who thus conceal their real ownership under the name of another person. Siemon v.Schurc1c, 29 N. Y. 610. Doubtless, in the transaction here, there was no fraudulent purpose in the minds of the parties to it. The effect was, however, hy investing Kline with the ostensible title, to give him credit, and produce just such consequences as the statute was intended to prevent. The written memorandum delivered by Kline cannot be treated as a contract to convey made after he acquired title. It was evidence merelY,of the original transaction. A decree will be entered for a partition and sale, and establishing the rights of the parties according to this opinion.
NEW JERSEY LIGlITEB!GB 00.
NEW JERSEY LIGHTERAGE
(Circuit Oourt, E. D.New York. April 2,1885.)
MASTER AND SERVANT-INJURY TO EMPLOYE-NEGLIGENCE OF VICE-PRINCIPAL WHILE ACTING AS Co-EMPLOYE.
An employer is not liable to an employe for the negligence of a vice-principal in doing the duty of a co-employe of the person injured.
Motion for New Trial. Ohas. J. Patterson, for complainant. Benedict, Taft J: Benedict, for defendant. WALLACE, J. The plaintiff was injured by the negligence of the captain of a barge, owned by the defendant, while in loading the barge with iron rails. The captain at the time was assisting the plaintiff and other employes in the work. In loading the rails, two men worked on the hand-winch, one hooked the tongs upon the rails, and two pushed and guided the rails into the barge, when they were the winch; and it was the duty of the man at raised by the men the tongs to give the order to hoist to the men at the winch when the tongs were properly hooked. Prior to the accident, Qne Lee had been at the tongs, and the captain had been helping one of the men at the winch. At the time of the accident, the captain was at the tongs, and the plaintiff was one of the men to guide the rails. The captain gave the order to hoist prematurely, and the rail fell upon the plaintiff, inflicting the injuries for which his suit was brought. Upon the trial the judge instructed the jury that the negligence of the captain was the negligence of the defendant, and the motion for a new trial raises the question whether that instruction was correct. Stated in other terms, the question is an employer is liable to an employe for the negligenoe of a vice-principal in doing the duty of a co-employe of the person injured. It was assumed at the trial that the recent case of Ohicago, etc., R. 00. v. Ross, 112 U. S. 377, S. C. 5 Sup. Ct. Rep. 184, was an adjudication in point which is controlling in this court, and the instructions to the jury were given in consequence. The only question in that case was whether the corporation defendant was liable to an engineer managing the locomotive of a freight train who was injured in consequence of the neglect of a conductor of the train to communicate instructions to the engineer essential to the safety of the train; the conductor, by the regulations of the corporation, being in control of the train and of all employes on it, and reEponsible for all its movements. The court held that the conductor did not occupy the position of a co-employe with the engineer. Mr. Justice BRADLEY, delivering the opinion, used this language:
"A conductor, having the entire control and management of a railway train, occupies a very different position from the brakeman. the porters, and other subordinates employed. He is in fact, nnd should be treated as, the