680 '

. FEDERAL, REPORTER,

vol. 38.

sought to be annulled, Sharp, neither before nor after becoming a party complainant in the suit, was a necessary party thereto, nor could he, after having made himself a co-complainant therein, have dismissed or discontinued the suit agninst the wishes of the other complainants who instituted the same. If, as we think, under the loeal prejudice clause of the net of 1887 there can be no removal unless all the necessary parties on the side of the plaintiff are citizens of the state in which the suit is brought, it follows that the act of Sharp in becoming a co-complainant in this case did not confer upon the defendant the Richmond & Danville Railroad Company the 'right to remove the suit to this court. Other grounds of objection to the removal are presented and urged on behalf of complainants, but in the opinion of the court they are not well taken, and need not be specially noticed and considered. No action is taken on the plea to the jurisdiction on the ground of Sharp's collusive joinder in order to effect the removal. The conclusion of the court is that this suit. was improperly removed to this court, which cannot take jurisdiction of the same, and that the motion to ramand it is well taken, and should' be sustained. It is accordingly ordered and adjudged that this suit be and the same is· hereby remanded to the chancery court of Knox; county, Tenn., at the cost of the Richmond & Danville Railroad Company. The foregoing and conclusion also disposes of the' removal made and had at the instance of the Richmond & West Point Terminal Railway .. & Warehouse Company, and a similar decree to the above is directed in that case.

HUDSON

et al.

'11. BISHOP.

(Oircuit Court, No D. Iowa, E. D. May 27,1889.)
COURTS-FEDERAL JURISDICTION-SUITS BY ASSIGNEES-PLEADING.

In an action in a circuit court, brought under the provisions of act Congo 1875, authOrizing an assigntle of a chose in action to sue. the complaint must ST-OW tbatthe 'assignor possessed the requisite citizenship to have maintained the action in that court.

At Law.

Lewis « Pfund and Henderson, Hurd, Daniels« KieBel, for plaintiff. GUger « Harrison, for defendant.

On demurrer to amended petition.

SmRAs, J. ,This cause was heretofore submitted to the court upon a demurrer to the original petition, and in passing on the question thus presented it was held that the four-years limitation found in the section of the statute of Wisconsin under which the guardian's bond was executed must be held, in favor of the sureties, to be part of the conditions of the bond, and t4at the surety might avail himself of this defense in

HUDSON V. BISHOP.

681

any forum in which suit on the bond w,as brought. ,See 32 Fed. Itep. 519, and 35 Fed. Rep. 820. ,The section of the Wisconsin statute providing the limitation in question further provides that if the party suing has been under a disability to sue by reason of minority or the like, the four-yearperiQd of limitation does not begin to run until the removal of such disability. In the original petition filed in the cause it was averred that Mary Elizabeth Hudson, one of the wards named in the bond" had in writing assigned her interest to John Hudson, and the suit was brought by James Hudson and John Hudson in his own right and as assignee of the rights of Mary Elizabeth. After the ruling on the demurrer to the original petition, the action as to James Hudson was dismissed, and was continued on behalf of John Hudson, as assignee of Mary is Ellzabeth, an amendment to the petition being filed, in which averred that at the time of the discharge of the guardian said MaryJ3:lizabeth was a minor, which disability continued until within four years before the bringing of this action. To the petition as thus lunended defendant again, demurs, and counsel have argued at length the question whether under the provisions of the statute of Wisconsin the sureties upon a guardian's general bond can be held liable for the proceeds of realty sold by the guardian under the order of the probate court of Wisto/con,consin. Before ,this question can be determinel1 it is sider the question of jurisdiction. As I now understand the conditiQl1 of the reGQrd, the sole plaintiff is John Hudson, and he sues to recover ,the amount claimed to be due Mary Elizabeth Hudson. It does not ap,pear upon the record of what state she was a citizen when the action was brought, and therefore it does not appear that this court could taken jurisdiction of the action had it been brought in her name. Uqdertbe provisions of the act oilS75, in force when this action was brought, an assignee .of a chose in action founded on contract cannot maintain an action in the federal court unless his assignor could so maintain it. .Corbin v. Black Hawk Co., 105 U. S. 659; Shoecrajt v. Bloxham, 124 U. S. 730" 8 Sup. Ct. Rep. 686. The,record fails to show jurisdiction and the cj:>urt must therefore refuse to further proceed, unless by arl1endmentit can, beshown that when the action was brought Mary, Elizabeth Hudson a citizen of a state otherthall Iowa. If the facts jlilstify it, leave is granted t(} plaintiff to amend in this particular. For the consideratioll of counsel, in the event that the cause is shown to be within the jurisdiction of the: court, I wish to suggest that the questions discussed in the briefs of connsel touching the liability of the surety on the guardian's general bond for tbe proceeds realized from the sale of realty callnot be fairly presented upon the record as it now stands, for the reason that the facts are not fully made, by known. If counsel are seeking to save expense of taking thus endeavoring to present the question by demurrer, then the facts. as. they exist should be averred in the petition more fully. As the record now stands the court cannot say whether any portion of the money com.ing into the hands of the guardian was derived from a sale of realty, nor, if it was,. u,nder what circumstances. 'If a sale of realty Wll8 hi fact ordered by the court, and a. special bond given thereon, it should

,6S2

FEDERAL ltEPORTER,vol.

38.

made to·' appear, as well as any action or orders made by the probate court. ,to:uching the proceeds thereof. If this ill not done in the pleadin flome form it will have to be presented by the evidence.

POTTS

HAHN

et ale

(DI'Btrlct (Jourt. D. N&w JerBey. May 11. 1889.)
FRA.UDULENT CONVEYANCES.

Conveyances made without in contemplation ofbanl(mptc1.. and ,witn the intent, participated in by'the grantees, to defraud creditors. WIll be set aside. ·

In Equity., Bill to set aside conveyances. ·On final hearing. For opinion on demurrer to bill, see 32 Fed. Rep. 660. G. A. Sei:rJa8, for complainant. SamueZ' iJfali8ch,. for defendants.
,

,

, WALES, J r; This is a bill to set aside a certain' mortgage, and a conveyance ofreahlstate,:J11ade bythedefendant John Hahn, and also a chattel 'mortgage .made by the same ·defendant, on the ground that· the said conveyance' and mortgages .were made without any valid consideration, in contemplation of bankruptcy, and in fraud oficreditors; and that his co-defendants'acted, hi concert with the said John Hahn in a scheme'.tohinder, delay, and defmudhis creditors, knowing 'at the time that lie' was in failing oircumstances,atid that proceedings in bankruptcy had been,or soon would be, taken against him. The testimony fully establishes 'the 'truth of the material averments contained in ;The proof of fraud on the part of John Hahn, and of conscious co-operation therein on the part of the co-defend,connivance 'ants, is complete and overwhelming, and. the conclusion admits of no disPllte. Let· a decree be entered for the complainant.

;

i

I

,'i,,' I.

','"

,

SumONS

'I).

TAYLOR

et 01.

,

(Oif'cuit(Jourt, 8. D. Iowa, (J. D. May 13,1889.)

:1.'MORTGA:GEES. . , -- 'BONDS ANI> 'MORTGAGES "RAptJtoil)O,COMPANIES .

:REDEMl'TION BY SECOND

'1'0 a :biU tl:I t:oreclose the, first mortgage on the property ofa railroad com· of the income mortgage, the second mortgage onthe , 'PI\ny:, tbe , property, W,as made a party, but, the decree failed to foreclose the lien of the "f Income mortgage. On a cross-bill to foreclose the second mortgage and to redllOm, the court held ,tbat the purchaser at the fOreclosure sale under the cir·