Steinkuhl v. York et al.

the result of judicial legislation, and whether the equity courts of the United States will follow it or not it is not now material to determine. On removal of such a case it might become on repleader a pure action of ejectment on the law side of the court, and the jurisdiction not be entirely defeated. The only question is who are the necessary and indispensable parties to such a bill? I have searched the cases to find out if this has been determined and do not find any case on that subject except Mullinix v. Perkins, 2 Coldw. 87, where it is said, "if the mortgage is in fee and the mortgagee is dead, the heirs-at-law of the mortgagee or other party, in whom the legal title is, must be made a party." This would indicate that Hahn, the trustee, is a necessary party, because the holder of the legal title. It also decides that the administrator of the mortgagee is not a necessary party. This would seem to indicate that the holder of the debt secured is not indispensable, and the mortgagee himself would be necessary, not because of his debt, but because of his title, for the same case holds that his heirs-at-law must be parties. I have no doubt whatever that the holder of the legal title is an indispensable party always, whether he be a mortgagee holding the fee, or a trustee holding it in part. And the argument in favor of our jurisdiction here is, that such holder of the legal title is the only indispensable party, and that the case stands as if an ejectment at law had made the tenant in possession a party, and the landlord had come in and become substituted as the real party in interest, the tenant being only nominally and not beneficially interested. I think this would be so if York and Noblin were only tenants in that sense, that is lessees from the owner for a term of years. But they are not such tenants. They are indeed the owners of the land subject to the incumbrance upon it in favor of Schaller & Gerke for the Bass notes. That incumbrance out of the way and they have the whole fee legal and beneficial.

Steinkuhl v. York et al.

Upon payment of the Bass notes the title would be complete in them without any conveyance from the trustee. Carter v. Taylor, 3 Head. 30; Williams v. Niel, 4 Heisk. 279, 283.

It seems to me that in a court of equity such ownership renders the owners indispensable parties to any bill which seeks to cancel their deeds and compel them to surrender the possession. Hahn, the trustee, is only necessary because he holds the legal title. It is true in one sense he is trustee for both debtor and the creditor in such an assignment for the benefit of a creditor; but he is only a naked trustee as to him, unless a surplus is realized, and I think in no proper sense does he represent the grantor so as to dispense with him as a party defendant to a bill involving the title. If sued alone, the trustee would properly plead that the grantor should be joined with him. He would represent sufficiently the creditors who are the beneficiaries of his trust. Kerrison

v. Stewart, 93 U. S. 155. But I do not think this principle would apply to him in his capacity as a representative of the grantor.

The controversy is not wholly between Steinkuhl, the plaintiff, and Schaller & Gerke, because they are only the holders of notes secured by the deed of trust on the land. They have no other interest in it, and but for that would be wholly unnecessary parties, because by their deed to Bass they parted with their title. Hahn, the trustee, is not a necessary party because he represents the holders of the notes, as we have already deduced from the case of Mullinix v. Perkins, supra, but because he holds the legal title. The controversy of the plaintiff with Schaller & Gerke and Hahn (as their representative,) is only incidental. The accident of Schaller & Gerke having been one of the mesne conveyancers and the purchasers at the execution sale, does not alter it. It is not because they were such purchasers they are made parties, but because of their deed of trust. Bass is

Steinkuhl v. York et al.

not made a party and need not be, I think; neither would Schaller & Gerke have been necessary if their grantee had not secured them by a deed of trust on the land. Their interest in the controversy depends wholly on the fact that these notes may be yet unpaid. There is then in this bill. as between the plaintiff, and Schaller & Gerke, and Hahn, or either of them, no controversy which is wholly between them and which can be fully determined as between them, such as is required to give this court jurisdiction. Act March 3, 1875, 18 St. 470.

I do not see that the jurisdiction can be any better maintained under the act of 1866, R. S., § 639, if we concede it has not been repealed by the act of 1875. The case of Fields v. Lounsdale, 1 Deady, 288, held that a suit to quiet title against tenants in common might be removed as to one of them. And in McGuinely v. White, 3 Dill. 350, it was held that one copartner might under certain circumstances remove the case as to himself; and there are other cases of similar import. But I think this can be done only where the cause of action is joint and several, or may be severed as between the defendants without further inconvenience than that of having two or more suits. Tenants in common have no estates dependant upon each other; not so with a creditor holding a deed of trust to secure his debt. His estate in the land is part and parcel of that of the owner of it who has executed the deed. It is only an incumbrance, and it is obvious that a bill in equity, which would leave out the owner and be filed alone against the incumbrance or where the controversy did not concern the debt, but was wholly about the land, would be fatally defective. If on such a bill between Steinkuhl and Schaller and Gerke, and Hahn, the trustee, this court should hold the title of the plaintiff here better, and that of the others void; and on same facts the State Court should hold York & Noblin's title better than that of

Steinkuhl v. York et al.

the plaintiff derived through the assignee in bankruptcy, I doubt if Schaller & Gerke would be precluded by the decree here from foreclosing their deed of trust. They could say, having had your title sustained by a court of competent jurisdiction our deed of trust is fastened upon it as a lien. The lien holder cannot be separated from the general owner in a controversy about the title; they must both stand or fall together. Gardner v. Brown, 21 Wall. 36; Cape Girardeau & S. L. R. R. Co. v. Winston, 4 Cent. L. J. 127. York and Noblin are necessary parties to any relief which is asked against Schaller & Gerke, or Hahn their trustee, just as well under the act of 1866 as that of 1875. Indeed, both acts, so far as they relate to this question, are substantially the

same.

The cause will be remanded to the Chancery Court of Tipton County.

Motion granted.

NOTE. No question was made or determined as to this being a case "arising uuder the Constitution and laws of the United States," of which the court might acquire jurisdiction under the act of 1875. The petition for removal did not present that ground. See Wooldridge v. McKenna, 8 Fed. Rep. 650.

The Illinois, White and Cheek.

THE ILLINOIS, WHITE AND CHEEK.

DISTRICT COURT-WESTERN DISTRICT OF TENNESSEE-APRIL

3, 1879.

LIENS FOR SUPPLIES UNDER THE STATE STATUTE.

1. LIENS FOR NECESSARIES.-Contracts for necessaries furnished at the home port, are a lien for ninety days, under the Tennessee Code, Section 1991, and it is not essential, under the statute, that credit should be given to the ship. The lien attaches to all contracts for the supplies, without reference to the fact whether the credit was given to the vessel or the

owner.

2. REMEDY TO ENFORCE LIEN.-The remedy for the enforcement of the lien given by sections 3550 and 3562 of the Tennessee Code, whether valid or invalid, does not defeat the lien or the jurisdiction of the Admiralty Court to enforce it.

3. WAIVER OF LIEN.-The taking of notes for the debts do not waive these liens. Nor does the taking of the deed of trust to one of libellants waive them.

4. CONDITIONAL ACCEPTANCE of Deed of TRUST.-The acceptance of a trust, conditional on its acceptance by other creditors, which they fail to do, excuses the trustee, and he will not be held to have forfeited his lien. Contra, BAXTER, J., (on appeal.)

5. C. O. D. CLAIMS NO LIENS.-Bills of lading, "C. O. D.," are not a lien on the boat to secure payment of the money collected from the consignee on delivery of the goods, and will be disallowed.

6. BAR LEASES NO LIENS.--The bar leases, or contracts for rent of the bar privileges, are not secured against breach by a lien on the boats, and where the boats were seized before the time expired, the allowance for the money paid in advance will not be preferred over other general creditors.

7. INSURANCE PREMIUMS-LIENS.-Premiums of insurance are a lien and will be so allowed.

8. MORTGAGE-ITS RANK.-A mortgage will be paid after lien claims and before general creditors.

9. PRIORITY OF LIENS.-Supply liens, under the statute, belong to same class as maritime liens for supplies, and will share with them and be paid in preference to the mortgage. Insurance premiums on policies issued prior to the mortgage will be preferred to it, but those on policies issued since the mortgage will be postponed till it is satisfied.