Cotten v. Willoughby.

The authorities referred to in the brief of the plaintiffs' counsel fully support the affirmative of the proposition involved in the inquiry. While it is true that what has no existence, and whose future acquisition is uncertain and contingent, cannot be assigned by words of present conveyance, and a contract relating thereto is entirely executory, there is an exception in the case of the future products of a substance which has ownership, and as to incidents, have a potential and prospective existence, admitting of transfer by the owner of the property from which they spring.

"So also, although the subjects of sale have no present existence," says Judge STORY, "yet if it be the natural product or expected increase of something to which the seller has a present valid right, the sale will be good. Thus a valid sale may be made of the wine a vineyard is expected to produce, or the grain that a field is expected to grow; or the milk that a cow may yield during the coming year; or the future young that may be born of the sheep owned by the vendor at the time of the sale, or the wool that shall grow upon them." Story on Sales, § 185. To the same effect, Benj. on Sales, 63,64.

In Butt v. Ellett, 19 Wall. 544, the Supreme Court of the United States declared that while the mortgage clause in the instrument "could not operate as a mortgage because the crops to which it relates were not then in existence, when the crops grew the lien attached and bound them effectually from that time." And the doctrine has been carried so far as to hold the future acquired property of a railroad company embraced in a grant of "all present and future to be acquired property" of the corporation, incident to the use of the road. Pennock v. Coe, 23 How. 128; Dunham v. Railway Co., 1 Wall. 254; Robinson v. Ezzell, 72 N. C. 231.

As then the plaintiffs by the terms of the deed were "lawfully entitled to the possession" of the goods and can maintain the action for claim and delivery under section 177 of C. C. P. the judgment rendered must have been based on the opinion that the deed in its inception was void by reason of the fraud superinducing its execution, or became so afterward by the plaintiffs' non-compliance with their stipulation for supplies, operating as a defeasance of the grant.

While we do not concede that the plaintiffs' previous false assurances and unfulfilled promise (and such is in substance the averment in the answer) can have this annulling effect upon an executed

Simmons v. Taylor.

contract by which property passes, and still less that a mere subsequent violation of the promise can restore it to the assignor, it is sufficient to say that the imputed fraud has not been found by the jury nor facts stated in the case from which it can be inferred, and its existence rests entirely upon the disputed assertions of the defendant alone. The verdict simply ascertains the deficiency in the amount of the supplies that ought to have been provided, a breach of the plaintiffs' contract only, and this does not authorize the conclusions upon which the judgment depends for support. As the facts of the case presented in the appeal do not raise the question perhaps intended to be presented on the appeal, nor warrant the judgment, it must be reversed and the cause remanded in order to the further necessary findings to determine the rights of the respective parties.

It may not be amiss to observe that if the plaintiffs recover, they will hold as trustees, and as all interested in the fund are before the court we see no reason why in the present proceeding the mortgage may not be foreclosed, the equities involved adjusted and the whole matter finally adjudicated in the action. It is unnecessary to consider the question of evidence in this aspect of the case. Judgment reversed and new trial granted. Let this be certified. Venire de nova.

Error.

SIMMONS V. TAYLOR.

(83 N. C. 148.)

Removal of cause.

In an action of trespass on land a non-resident defendant sued with residents may remove the cause to the Federal court so far as he is concerned.*

PET

ETITION for removal of a cause to the Circuit Court of the United States. The opinion states the facts. The motion was denied.

James E. Moore, for plaintiffs.

E. G. Haywood, for defendant.

* See Steward v. Mordecai (40 Ga. 1), 2 Am. Rep. 555.

Simmons v. Taylor.

SMITH, C. J. The defendants, one of whom is a citizen of Virginia and the other of this State, are sued by the plaintiffs, all of whom are citizens of North Carolina, for trespasses alleged to have been committed upon their lands. The defendants in separate answers deny the plaintiff's right to the land in dispute, and assert title in the defendant Taylor, by whose authority and in whose service the defendant Robeson was acting.

At the return term of the summons Taylor applied by petition for the stay of proceedings in the cause and its removal to the Circuit Court of the United States, on the ground of his own citizenship in Virginia and because the principal controversy is between the plaintiffs and himself, and setting out the other facts material to the motion. No objection is made to the form of the application, and the simple question, ruled adversely to the defendant in the court below, is presented whether the entire cause, or so much of it as involves the controversy between the plaintiffs and himself, is removable under the acts of Congress.

The 12th section of the judiciary act of 1789 authorized a defendant under the limitations therein mentioned, when sued in a court of the State of which the plaintiff was a citizen and himself a citizen of another State, to have the same removed to the Circuit Court of the United States, if he made his application at the return term of the writ or process.

The act of July 27, 1866, extended the right of removal to one of several defendants, although the others might be citizens of the same State with the plaintiff, if application was made before the trial, when, so far as it relates to him, it is brought for the purpose of restraining or enjoining him, or is a suit in which there can be a final determination of the controversy so far as concerns him, without the presence of the other defendants as parties in the cause. But the suit as to the other defendants remains in the State court and may be prosecuted there.

The amendatory act of March 2, 1867, authorizes a removal whenever there is a suit depending in the State court between one of its citizens and a citizen of another State, whether the latter be plaintiff or defendant, when he files an affidavit stating that he has reason to believe and does believe that from prejudice or local influence he will not be able to obtain justice in the State court. Rev. Stat. of U. S., § 639. So the law remained until the passage of the

Simmons v. Taylor.

act of March 3, 1875, the second section of which is in these words:

"That any suit of a civil nature at law or in equity, now pending or hereafter brought in any State court, when the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made or which shall be made under their authority, or in which the United States shall be plaintiff or petitioner, or in which there shall be a controversy between citizens of different States, or a controversy between citizens of the same State claiming land under grants of different States, or a controversy between citizens of a State and foreign States, citizens or subjects, either party may remove said suit into the Circuit Court of the United States for the proper district. And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit to the Circuit Court of the United States."

In his analysis of the act of 1866 Judge DILLON, in his monogram or short treatise on the Removal of Suits (19), says the conditions of removal are these:

1. The suit in the State court must be by a plaintiff who is a citizen of the State wherein the suit is brought.

2. It must be against a citizen of the same State and a citizen of another State as defendants.

3. The amount in dispute must exceed the sum or value of five hundred dollars besides costs.

4. The removal must be applied for before the trial or final hearing in the State court.

And that in such case the non-resident defendant may have the cause removed (not wholly) but only so far as it relates to himself, if it be a suit brought to restrain or enjoin him, or is a suit in which there can be a final determination of the controversy so far as concerns him without the presence of the other defendants as parties in the cause. In the opinion of the author referred to, the act of 1875, which repeals the former acts in conflict, does not repeal the substantial provisions of the act of 1866, and a case coming under its operation may be removed as before. Id. 28.

If we accept this as a correct interpretation of the state of the

Simmons v. Taylor.

law, the defendant Taylor is clearly entitled to remove so much of the action as relates to himself, as he, a citizen of Virginia, is sued by citizens of North Carolina with his co-defendant, a resident of the latter State, in an action several in its nature, and which can be maintained against either, and therefore in the language of the act "there can be a final determination of the controversy as to him without the presence of the other, and the suit may proceed against the latter." Sewing Machine Cos., 18 Wall. 583; s. c., 110 Mass. 70. The next inquiry is whether under the act of 1875 the whole cause is removable at the instance of the non-resident defendant entitled to remove it as to himself.

The operative and distinguishing words of this enactment are that the entire suit may be removed when there is a "controversy which is wholly between citizens of different States," and that although there may be other distinct controversies with those who, if they were the only plaintiffs or only defendants, would not be entitled to the removal.

This act came under review in the case of Taylor v. Rockefeller, in the United States Circuit Court for the western district of Pennsylvania, reported in 18 Am. Law Reg. 298, before Mr. Justice STRONG of the Supreme Court, and Judge McKENNON, in which an elaborate opinion concurred in by both, is given. After remarking that the act adopts the language of the Constitution and goes to the extreme limit of the jurisdiction authorized to be conferred, he proceeds to discuss the provisions of the act and says: "In many writs there are numerous subjects of controversy, in some of which one or more of the defendants are actually interested, and other defendants are not. The right of removal is given when any one of these controversies is wholly between citizens of different States and can be fully determined as to them, although there may be other defendants actually interested in the controversies embraced in the suit."

In Peterson v. Chapman, 13 Blatch f. 395, the action was brought by citizens of New York against parties, one of whom resided in New York and the other in Connecticut, and the cause after removal was remanded to the State court on the ground that the controversy was not between citizens of different States.

In Carrahan v. Brennan, in the Circuit Court of the northern district of Illinois, it was held that the removal is allowable only when the controversy is so completely between citizens of different VOL. XXXV-72