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790 South Mountain Consolidated United States v. County of Mining Co., In re

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1. REMOVAL OF CAUSE.- Under the second clause of section 2 of the act

of March 3, 1875, any suit mentioned therein is removable whenever it involves a controversy wholly between citizens of different states, and which can be fully determined as between them, upon the petition of either one or more of the plaintiffs or defendants actually interested in such controversy; and it is immaterial whether such controversy is considered the main or principal one in the suit or not, or what other controversies or parties are incidentally or otherwise involved in it.

In Equity.
Addison C. Gibbs and B. F. Dowell, for plaintiff.
E.C. Bronnaugh, for non-resident defendants.

DEADY, D.J. This suit was commenced on June 18, 1879, in the circuit court of the state for the county of Jackson, against the defendant Hawkett and nine others, and after a weary waste of wordy, confused, and iterated contention, covering 327 pages of closely-written legal cap, consisting, among other things, of the complaint, the supplemental and

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first and second amended complaints, motions to strike out, demurrers, answers, and replications, it was brought to an issue, with two additional defendants, on March 31, 1880.

On June 8, 1880, two of the defendants, Jesse Robinson and E. C. Robinson, filed their petition and bond for the removal of the suit to this court under section 2 of the act of March 3, 1875, (18 St. 470,) alleging therein that the plaintiff is a citizen of Oregon, and that the defendant Hawkett and the pe'itioners are citizens of California, and “that there is a controversy in this suit which is wholly between the said plaintiff and the said defendants,” Hawkett and the petitioners, “which controversy can be fully determined as between them;" and finally determined without the presence of the other defendants or any of them as parties in the cause.

On September 3, 1880, the petitioners filed a copy of the record of the suit in this court; and on November 9th the plaintiff moved to remand the cause to the state court. The motion to remand is based upon the following grounds: First, the application to remove was not made in time; second, "all the defendants are not of another state"-meaning, I suppose, that they are not citizens of another state than tho plaintiff; third, all the defendants did not join in the application; and, fourth, "the controversy involved in said suit cannot be fully determined between the parties thereto without the presence of McGruder and Haymond, two of said defendants."

The facts and allegations of the case to be considerod in disposing of this motion are: That on July 26, 1878, the plaintiff, being the legal owner of certain mining property known as "The Taylor Claims," situate in Josephine county, Oregon, and described as lot 5, in section 35, S. of R. 7 W., and two certain water-rights and ditches approximate thereto, sold the undivided two-thirds thereof to the defendants Hawket and E. C. Robinson, by a written agreement of that date, wherein and by it was agreed between the parties thereto (1) "to mine and operate said mining property as a company; (2) that the said defendants would “pay and assume the fol

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lowicz debts, to-wit: to James Neely, administrator of Evan Taylor's estate, $2,784.56; Kasper Kubli, $882.68; Dan Green, $500; William Smith, $500; and pay to the plaintiff $1,432,-in all, $6,099.24; "said amounts to be paid down, or on such time as may be agreed upon by the said defendants and the persons to whom said debts are due;" (3) that said defendants would put upon the property, at their own expense, "such improvements and additional machinery as may be necessary;" but such expense and "the amounts" aforesaid were "to be repaid" to said defendants "out of the profits taken out of said mines" before any “dividends" were paid to the members of the company, but thereafter the said profits were "to be equally divided between the three members of said company;” and (4) that said property, together with the improvements thereon and thereafter put on, "are to be held as a lien and security for the payment of the debts above specified."

On the day of this agreement said Hawkett & Robinson paid $3,716.56 upon said debts, to-wit: the debt to Neely in full, $500 to Kubli, and $432 to the plaintiff, and gave their notes for the remainder-the one to Kubli being also signed by the plaintiff. The debts of Green and Smith remain unpaid—the latter not having become due until March, 1880, and the former having been taken up by the plaintiff. Judg. ment has been obtained against the makers upon the note to Kubli, and an action is pending upon the one given to the plaintiff, in which the property in question was attached on June 2, 1879. It is also alleged by the plaintiff that one William Irwin was the equitable owner of an individed third of said property, and that Hawkett & Robinson, in consideration of the sale to them of said interest, agreed to pay to and for said Irwin the sum of $2,500, in pursuance of which they paid to two persons $1,000 in cash, and gave their promissory note to the wife of said Irwin for $3,128.33, which is still unpaid, and now held by the defendants Gazley and Fink; and also their note signed by the plaintiff to the defendants Kubli and Bolt for $55.43, which the plaintiff has since paid, and promised to pay the plaintiff $86.24, then

due from said Irwin to him, which promise they have not kept. In the action pending against Hawkett and Robinson, aforesaid, the plaintiff has included the last two items, amounting to $171.67. The plaintiff claims that $3,882.68 of the indebtedness which Hawkett and Robinson assumed remains unpaid, and that there is a lien upon the property in favor of the person to whom it is now due.

On March 17, 1879, Hawkett sold his interest in the premises to Robinson; and the latter, in his answer, denies that Irwin had any interest in the mine, or sold or delivered any to himself or Hawkett, and alleges that the several promissory notes given on account of the debts assumed by himself and Hawkett were given and received as payments thereof, and that the original debts were thereby extinguished, and the liens, if any, discharged; that the debt of Green was not paid because he refused and still refuses to relinquish a claim to one of the water rights in question, as he was bound to do.

The plaintiff also alleges that the defendant Jesse Robin. son, the father of E. C. Robinson, was a secret partner in this transaction with Hawkett and his son, but this allegation is denied by the answer of each of the Robinsons. On May 13, 1879, E. C. Robinson mortgaged an undivided two-thirds of the property to the defendants Benjamin Haymond and C. Magruder, to secure the payment of his note to them for $2,295; and on May 14, 1879, mortgaged the same interest to Jesse Robinson to secure the payment of his note to him for $4,975.

The plaintiff alleges that the $3,882.68—the unpaid portion of the indebtedness aforesaid—is a lien upon the property prior to the lien of said mortgages, both on account of the terms of the contract of sale of July 26, 1878, and as a "vendor’s lien for the purchase money;" and that the alleged mortgage to Jesse Robinson is fraudulent and void as against said liens, for want of consideration, and was made to cheat and defraud the plaintiff out of his just claims against the defendants Hawkett and Robinson; and that each of said mortgagees, at and before the ta king of such mortgages, had actual notice of the agreement of July 26, 1878, and that each of

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