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The legislature of Massachusetts passed a statute which imposed upon each fire, marine, and fire and marine insurance company, incorporated or associated under the laws of any government or state other than one of the United States, a tax of 4 per cent. upon all premiums charged or received on contracts made in that state for insurance of property. With this statute in force, the state of Massachusetts filed a bill in its supreme judicial court against the Liverpool & London Life & Fire Insurance Company to collect a tax of 4 per cent. on its premiums upon contracts made in Massachu. setts, and to restrain the company from doing further busi. ness until the tax was paid. Payment of the tax was resisted on the ground that the defendant was an association of natural persons, under certain deeds of settlement and especial acts of parliament, and not a corporation. In these acts of parliament, conferring privileges on the company, declared not to be the intention to make it a corporation. The supreme court of Massachusetts gave a decree against the company. In affirming the case on appeal the supreme court of the United States held (10 Wallace, 566) that, as the law of corporations is understood in this country, the Liverpool & London Life & Fire Insurance Company was exercising corporate franchises in Massachusetts, and that it was liable as a corporatlon to pay the tax under the statute of that state.

In the case of Westcott v. Fargo, 61 N. Y. 542, it was held that under section 3, art. 8, of the constitution of New York, and under the legislation of that state, already alluded to, the president of the American Express Company was to be deemed a corporation sole for the purpose of suing and being sued in the courts of that state. The reasons wbich induced the supreme court to hold that, for the purposes of federal jurisdiction, corporations are to be regarded as citizens of the states whose creatures they are, call with equal force for a similar' ruling in favor of joint-stock companies which are organized under the laws of New York. It is no less convenient for the public than it is for these companies that they should be allowed to sue and be sued in the name of the presi

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dent or treasurer. If they are not allowed the privilege of thus suing they cannot be thus sued. The American Express Company has a capital stock of $18,000,000, with more than 3,000 shareholders. Its right to sue and its liability to suit in the name of its president or treasurer is a franchise conferred upon it by the laws of New York, which by comity should and does follow it into other states, and William G. Fargo, who brings the suit as president, is a citizen of New York, and the defendant is an Indiana corporation and a citizen of that state.

For these reasons I think the suit is properly brought, and, without deciding other questions which were argued by coun. sel, the motion to dismiss for want of jurisdiction is overruled.

This is a bill in equity to foreclose a mortgage executed ! respondent Dempsey R. Walker to John C. Burrage, co veying certain real estate to secure the payment of a promi sory note. The bill alleges default in the payment of sa note; that complainant is the holder and owner of the sam and entitled to foreclosure; and that the other respon ents, including A. A. Brockway, have, or pretend to hav some claim to or interest in or lien upon said mortgag premises; but that said claim, interest, or lien is subs quent and subordinate to the lien of complainant. T answer of respondent Brockway alleges that “on the thirteen day of January, 1876, the date of complainant's mortgage, set out in his bill, the said property described in his sa mortgage as (describing it] was owned by and the title w in the government of the United States, and that the sau was then, and for a long time afterwards, a part of the pub

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1. AFFIRMATIVE RELIEF IN EQUITY-CROSS-BILL.

Any affirmative relief sought by a defendant in an equity suit must be by cross-bill, and can never be granted upon the facts stated in the

answer.

lands of the United States; and that neither at the date the said mortgage, nor at any time since, has the said Den sey R. Walker, the mortgagor, had any title or interest in si real estate, and that neither the complainant nor his assig took any interest in or lien on said real estate by virtue the said mortgage set out in complainant's bill.” It is furti alleged that on the twenty-sixth day of March, 1877, i Nicholas Walker entered the land in controversy, and receit a patent therefor from the United States, and that he alt wards executed to the said respondent Brockway a mortge upon the same, which he still holds unsatisfied. The pra of the answer is that complainant's mortgage may be decla: void and held for naught, and that respondent's lien be clared a first and prior lien on said land.

Brown & Campbell, for complainant.

2. BILL TO FORECLOSE MORTGAGE-MORTGAGEE'S TITLE CANNOT BE

QUESTIONED.

According to the practice which prevails in the federal courts in a suit to foreclose a mortgage, the mortgagee's title cannot be ques.

tioned: it must be investigated at law. 3. STATEMENT OF CASE-DECREE.

The answer of a respondent to a bill in equity to foreclose a mortgage denied the complainant's title, set up an adverse title as mortgagee, and prayed that complainant's mortgage be declared void, and that the respondent's lien' be declared a first and prior lien on said land. Held, that the title of complainant could not be questioned in the proceedings to foreclose, but the decree in this case would be modified so as to provide that the decree and sale thereunder should be without prejudice to respondent's right to contest the title to the land in question by an action at law.

Webb & Glasse and T. C. Corey, for respondent Brockw

McCRARY, C. J. There are several objections to grant the relief sought by the respondent.

1. In the first place, if he were entitled in this case to t relief, it would be necessary for him to seek it by a crossIt is well settled that any affirmative relief sought by a fendant in an equity suit must be by cross-bill, and can ne

In Equity.

This is a bill in equity to foreclose a mortgage executed by respondent Dempsey R. Walker to John C. Burrage, conveying certain real estate to secure the payment of a promissory note. The bill alleges default in the payment of said note; that complainant is the holder and owner of the same, and entitled to foreclosure; and that the other respond. ents, including A. A. Brockway, have, or pretend to have, some claim to or interest in or lien upon said mortgaged premises; but that said claim, interest, or lien is subsequent and subordinate to the lien of complainant. The answer of respondent Brockway alleges that "on the thirteenth day of January, 1876, the date of complainant's mortgage, as set out in his bill, the said property described in his said mortgage as [describing it] was owned by and the title was in the government of the United States, and that the same was then, and for a long time afterwards, a part of the public lands of the United States; and that neither at the date of the said mortgage, nor at any time since, has the said Dempsey R. Walker, the mortgagor, had any title or interest in said real estate, and that neither the complainant nor his assignor took any interest in or lien on said real estate by virtue of the said mortgage set out in complainant's bill.” It is further alleged that on the twenty-sixth day of March, 1877, one Nicholas Walker entered the land in controversy, and received a patent therefor from the United States, and that he afterwards executed to the said respondent Brockway a mortgage upon the same, which he still holds unsatisfied. The prayer of the answer is that complainant's mortgage may be declared void and held for naught, and that respondent's lien be doclared a first and prior lien on said land.

Brown d Campbell, for complainant.
Webb & Glasse and T. C. Corey, for respondent Brockway.

McCRARY, C. J. There are several objections to granting the relief sought by the respondent.

1. In the first place, if he were entitled in this case to that relief, it would be necessary for him to seek it by a cross-bill. It is well settled that any affirmative relief sought by a defendant in an equity suit must be by cross-bill, and can never

Walse and others v. MEMPHIS, CARTHAGE & NORTHWESTI

R. Co. and others.

(Circuit Court, E. D. Missouri. March 28, 1881.)

1. JOINDER OF PARTIES.

A corporation is a necessary party defendant to a bill to enfor

judgment against it by compelling contribution from its stockhol 2. SAME.

All the stockholders are also necessary parties in such & suit, if apply to be heard.

be granted upon the facts stated in the answer. Story's Equity Pleading, (Redfield's Ed.) 8 398a; McConnell v. Smith, 23 Ill. 611; Armstrong v. Pierson, 5 Iowa 317.

2. It is also well settled, that, according to the practice which prevails in the federal courts in a suit to foreclose a mortgage, the mortgagee's title cannot be questioned. The question of title must be investigated at law. In a foreclosure proceeding the court will not inquire what interest the mortgagee has in the mortgaged premises. 2 Jones on Mortgages, $ 1482 ; Bull v. Meloney, 27 Conn. 560; Pulmer v. Mead, 7 Conn. 149; Hill v. Meeker, 23 Conn. 592; Williams v. Robinson, 16 Conn. 517; Dial v. Reynolds, 96 U. S. 340.

In the last-named case the supreme court, per Swayne, J., say: “It is well settled that in a foreclosure proceeding the complainant cannot make a person, who claims adversely to both the mortgagor and mortgagee, a party, and litigate and settle his right in that case. Barbour, Parties in Equity, 493, and the cases there cited."

In Hill v. Meeker, supra, it appeared that the title of the mortgagee to one of several tracts of land embraced in the mortgage was denied. The case was exactly analogous to the one at bar, and the court held that the complainant could take the decree of foreclosure, leaving the parties at liberty to litigate the title in an action at law.

The decree in this case will be modified so as to provide that said decree, and the sale thereunder, shall be without prejudice to the right of the respondent Brockway, by proper legal proceedings, to contest the legal title to the land described in the answer as claimed by him.

3. JURISDICTION-WHEN Surr is Nor WHOLLY BETWEEN CITIZENS

DIFFERENT STATES.

If A. and C. are citizens of the same state, and B., C., and D. citizens of different states, a suit in which A. and B. are plaintiffs C. and D. defendants, and in which they are all necessary partie not one over which a United States court will take jurisdiction the ground that the controversy is between citizens of diffe states.” To give a United States court jurisdiction on that ground controversy must be wholly between citizens of different states. In Equity. Motion to Remand.

This was a suit in equity to enforce certain judgme against the Memphis, Carthage & Northwestern Raili Company, by compelling contribution from holders of un

stock, and for other purposes. It was originally commer in the circuit court of the city of St. Louis, in the stat Missouri, by George W. Walsh, Union Savings Associat & corporation, William Lee, Joseph Shippen, Edward Bur James J. Marks, and Hiram Driggs, citizens of the stat Missouri, H. R. Beers, A. M. Jay, S. M. Sorern, S. Pit J. F. Pitzer, and Alfred Palmer, citizens of the statt Kansas, against Joseph Seligman, James Seligman, Ji Seligman, John A. Stewart, J. M. Brown, and James Hyde, citizens of the State of New York, Memphis, Cart: & Northwestern Railroad Company, St. Louis & San F cisco Railroad Company, A. A. Talmage, C. W. Rogers, W Tower, Ezra Miller, and James Baker, citizens of Misso and R. W. Wright, a citizen of Kansas. The petition removal was made by defendant Jesse Seligman alone, set forth that he was a citizen of the state of New York; 1

WALSH and others v. MEMPHIS, CARTHAGE & NORTHWESTERN

R. Co. and others.

(Circuit Court, E. D. Missouri. March 28, 1881.)

1. JOINDER OF PARTIES.

A corporation is a necessary party defendant to a bill to enforce a

judgment against it by compelling contribution from its stockholders. 2. SAME.

All the stockholders are also necessary parties in such a suit, if they

apply to be heard. 3. JURISDICTION-WHEN SUIT IS NOT WHOLLY BETWEEN CITIZENS OF

DIFFERENT STATES.

If A. and C. are citizens of the same state, and B., C., and D. are citizens of different states, a suit in which A. and B. are plaintiffs and C. and D. defendants, and in which they are all necessary parties, is not one over which a United States court will take jurisdiction, on the ground that the controversy is " between citizens of different states." To give a United States court jurisdiction on that ground the controversy must be wholly between citizens of different states.

In Equity. Motion to Remand.

This was a suit in equity to enforce certain judgments against the Memphis, Carthage & Northwestern Railroad Company, by compelling contribution from holders of unpaid stock, and for other purposes. It was originally commenced in the circuit court of the city of St. Louis, in the state of Missouri, by George W. Walsh, Union Savings Association, a corporation, William Lee, Joseph Shippen, Edward Burges, James J. Marks, and Hiram Driggs, citizens of the state of Missouri, H. R. Beers, A. M. Jay, S. M. Sovern, S. Pitzer, J. F. Pitzer, and Alfred Palmer, citizens of the state of Kansas, against Joseph Seligman, James Seligman, Jesse Seligman, John A. Stewart, J. M. Brown, and James M. Hyde, citizens of the State of New York, Memphis, Carthage & Northwestern Railroad Company, St. Louis & San Fran. cisco Railroad Company, A. A. Talmage, C. W. Rogers, W. J. Tower, Ezra Miller, and James Baker, citizens of Missouri, and R. W. Wright, a citizen of Kansas. The petition for removal was made by defendant Jesse Seligman alone, and set forth that he was a citizen of the state of New York; that

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