and '.defendllJ!.t tender· to the complainant, in an and ,offer to account for whatever rentsj,may have been r.eqeived from· the coal lands by crediting the same .witb.interest on the note. We think that credit should also be given, with interestfrom the dateofit$ receipt, for the money which Ankeney sent ,to Carson for credit upon the note, and whicllC;l>rson'declined,w:,receive, but turned over to the bank. district court must be reversed,,:with instructions The decree: th.e action on the note unless ,the plainto enter tiff shaILmakec;Jredits the note as above.
OVER et a1. v. LAKE ,
:ilJRtE & W. R. ,. ,
co. et al.
(Oircuit Court,D. Indiana.
Where, in an action agaillsta' railroad company for goods destroyed in trjj.llsit, the insurance companies, whichba.ve become, subrogated to the eqUitable rights, are joined with the owner, who has the full lega.l title, so as 'to defeat the right of the ,ra1lroad to a removal of .the legl!-l cause of action to the federal court on' grounds of diverse citizenship, the federal court will separate the lega1:cause of action, and will not allow the joinder of parties having only equitai:Jle claims to defeat the right of removaL
This was an action by Charles H. Over and others against the Lake Erie & Western Railroad. Company. The action was removed from the state court by defendant. On motion to remand. R.yan & Thompson, & Harding, and R. W. Barger, for plaintiff. Miller, Winter & Elam, W.· E. Hackedorn, and John B. Cockrum, for defendant. BAKER, District Judge. This is an action to recover judgment for damages to the amount of $75,000 for the alleged negligent destruction by fire of property owned by Charles H. Over, a citizen of the state of Indiana. At the time the property was destroyed, it was insured in his favor, in the sum of a1;lout $38,000, in several dif· are citizens of the state of ferent insurance companies, two of Illinois, of which state the railroad company is a citiz.en. After the of the property the insurance companies severally paid the amount of their respective policies to Over, who gave to each qompany a written assignment of a part of his claim for loss 'against the railroad companY,the amount so assigned being equal . to the amount paid by each company to him. Over and the insurexcept one,! then b,t.'Qllght ..suit in the state court, ance as joint parties and owners of the claim for loss, against the rail· road company and the insurance company which had declined to become a plaintiff. One of the plaintiff insurance companies and
the defendant citizens of the state of TIlinois. The railroad company has removed the case into this court on the grouIldQf diverse citizenship, alll;Lon the the insurance companies are merely formal, and not necessary or proper, parties to the suit. The cause of action for the alleged wrong accrued to Over alone. It was a right of action at law, triable by jury. It was not assignable, in whole or in part, so as to invest the assignee with a legal title. By the payment of the policies the insurers became subrogated, pro tanto, to an E!qnitable right in the cause of action. The written assignment executed by Over to the insurance companies gave them nothing beyond an equitable right. Neither at common law nor under our statutes does the assignment of a part of a cause of action for a tort invest the assignee with any part of the legal The plaintiff Over still retains the entire legal title to the -cause of action. As the owner and holder of the entire legal title to the cause of action, and having also the entire beneficial ownership of the unassigned part of it, he can, in this state, as at common law, mllintain in his own name an action for the whole amount of the loss. Cunningham v. Railroad Co., 102 Ind. 478, 1 N. E. 800. His right of action is at law, because his title is purely legal. The title and interest of the insurance companies, are wholly equitable, and extend to but a part of the cause of action. Can Over, whose right of action is at law, by joining the insurance companies, whose right of action is in equity, depri"ve the railroad company of the right of removal? He could have brought his suit originally in this court against the railroad company, but it would have, had to be brought in his name alone. His right of action, being legal, and embracing the entire loss, is separable from the equitable causes of action of the insurance companies. The distinction between actions at law and suits in equity is firmly maintained in the federal system of jurisprudence, and state legislation will not be permitted to alter or abridge this distinction. Scott v. Neely, 140 U. S. 106, 11 Sup. Ct. 712; Cates v. Allen, 149 U. S. 451, 13 Sup. Ct. 883, 977. If the practice in the state courts permits the joinder of parties having the entire legal title with others having only an equitable title or interest in a part of the cause of action, still, in my opinion, such joinder will not defeat the right of the federal court to separate the parties having a legal cause of action from those having an equitable right; and if, when thus separated and arranged, the action at law is removable, the presence of parties having a mere equitable interest will not defeat such right. If the assignee of an equitable interest in a cause of action of a legal nature is a necessary or proper party with the owner of the entire legal title, then, in every case where a cause of action arises, of which the federal court might rightfully have taken cognizance by removal, this right could be defeated by the assignment, to a citizen residing in the state of the defendant's residence, of a small interest in the claim or cause of action. Such can· , struction would make the defendant's right of removal, in every case, depend on the will of the owner of' the cause of action. I think the motion to remand should be overruled, and it is so ordered.
POWER v. MUNGER. (Olrcult 'Oourt of Eighth Circuit. ;rul,. 16, 1894.) No. 410.
:W., .who was operating Ill'arine ways, agreed with P. to haul the latto the ways, and keep it there. In handling the steamer, W·. allowed it. to. collide with a boat belonging to B. Suit was brought in. the. federal court P., and a judgment for $9,572 was rendered. Pending an aweal .from the judgment, B. sued W. in the. state conrt; and obtained of $4,300, from which an appeal was pending, when W. andP.'agreed that if W. would withdraw his appeal, and pay the judgment,; .. would 'contribute one-half thereof, and that, UPOll the discharge of,tblUudgment, P. would try to have the judgment <Uscharged, but that, if he was compelled to pay it, W. should refuJid him the said amount' paid by him and used towards paying the jU(1gmentagainSt W.,whUe; If P. should succeed in getting the judgment him satisfied, amount so paid by him towards satisfying the 311dglDent against W. shOUld not be refunded. P. eventually had to pay the judgment against him. Held, thatP. could not recover from W. the am()unt of such judgment against him, on the ground of W.'s negligence, the agreement having expressly defined W.'s liability, and thereby rahim from all other liability growing out of the accident.
In Error to the OircuitConrt of the United States for the District of Minnesota. Action. by Thomas C. Power against Roger S. Munger to recover the amount of a decree rendered against plaintiff lnan admiralty snit. . Defendant had judgment, and plaintiff brings error. Af·
In the month of November, 1879, the firm of C. S. Weaver & Co., which was composed of C. S. Weaver and Roger S. Munger (the latter of whom is the defendant in error), were in charge of and were operating certain marine wa.ys at Bismarck, in the then territory of Dakota. On the 17th day of November, 1879, the firm entered into two contracts with the respective owners of the steamers Butte and· Colonel McLeod to haul the said steamers out of the Missouri river, and to .furnish room for the same on the marine ways in question, until the opening of naVigation in the spring of the year 1880. In the execution of these contracts, the steamer Butte was first hauled out of thEi water, and partially up the ways, when work was suspended on her for the time being, and the steamer Colonel McLeod was moved to the foot of the ways for the purpose of being drawn out of the water before ice had formed in the river. While the steamers were in this situation, the Butte slid down the ways, becauselt was not securely blocked and stayed. It collided with the Colonel McLeod, and caused the latter to sink. Sub· sequently, in the month of July, 1881, John Baker and others, who were the owners of the steamer Colonel McLeod·. filed a libel in personam in the United States district court for the district of Minnesota against Thomas C. Power, the present plaintiff in error, and also against other persons who were at the date of tbe collision the owners of the steamer Butte, for the da.mage that had been sustained by the sinking of the steamer Colonel McLeod in the aforesaid collision. This suit in admiralty eventually. resulted in a decree again&!; Thomas C. Power for. the sum of $9,572, from which decree he took an appeal to the United States, supreme court. While the latter suit was pending and as yet undetermfned, to wit, in the month of August, 1883, Ba,. ker and others also brought a 'suit at common law against C. S. Weaver & Co., In the district court forSt. Louis county, in the state of Minnesota, to recover the damages sustained by the aforesaid collision, which latter suit