files a disclaimer. It has been held that, where there is a dispute concerning the right of the petitioner to condemn all the property there is but a single controversy between him and all of those who dispute the right. Where the right to condemn only

a part of the land is disputed, there is a separable controversy between the owners of that part and the petitioner, to which the powers of the other parts sought to be condemned are not parties.9

§ 541d. Separable controversies in foreclosure suits. suit to foreclose a mortgage or other lien, a defendant, who is alleged to be personally liable for a deficiency, has no separable controversy from that between the plaintiff and the owner of the equity of redemption; 1 and defendants charged to be junior incumbrancers cannot remove a suit because their controversy with the mortgagee is separate from that of the mortgagor,2 although they contest the validity or privity of the mortgage, and the mortgagor does not.3

It has been held that a prayer for the reformation of the mortgage is incidental to a foreclosure suit and does not create a separate controversy. It has been held that, where there is a dispute as to the amount of land covered by the mortgage, there is a separable controversy between the plaintiff, a mortgagee, and those of the defendants who are interested in the disputed portion of the property.5 Where a complaint in a foreclosure suit alleged that a defendant, who remanded the case, claimed an interest in the mortgaged property, without stating the nature of the same, and it subsequently appeared that the latter's claim was to a title paramount to that of the mortgagor and mortgagee, which would make the controversies in the suit multifarious, the cause was remanded. It has been held that, since a prior mortgagor or other incumbrancer is not a necessary party to a suit to foreclose a junior lien when he is joined, the controversy between the plaintiff and owner of the equity of redemption is removable. It has been held: that a suit to foreclose a mortgage, in which subsequent incumbrancers are defendants, may be removed by the mortgagor, upon the ground that a separable controversy exists between it and the plaintiff. That, in a suit to cancel a mortgage, there is no separable controversy between plaintiff and the defendants, mortgagor and mortgagee. That the same rule prevails in a suit by a mortgagor against the different lienholders upon his property, for the adjustment of their rights, although separate suits might have been brought for the same purpose against the different mortgagees.10 That there is no separable controversy in a suit to enjoin a fore

City Bank v. Hodgin, 22 Fed. 209; Rich v. Gross (Nebraska), 29 Neb. 337, 45 N. W. 468.

4 Winchell v. Coney, 27 Fed. 482; see Gates Iron Works v. James E. Pepper & Co., 98 Fed. 449.

5 New England Water-Works Co. v. Farmers' Loan & Trust Co., 136 Fed. 521, 69 C. C. A. 297.

6 California Safe Deposit & Trust Co. v. Cheney Electric Light, Telephone & Power Co., 56 Fed. 257. A similar ruling was made in Thompson v. Dixon, 28 Fed. 5.

7 Snow v. Texas Trunk R. Co., 16 Fed. 1 (4 Woods, 394); Boat men's Bank v. Fritzlen, C. C. A., 135 Fed. 650; reversing Weldon v. Fritzlen, 128 Fed. 608. Contra, Foster v. Chesapeake & N. R. Co., 47 Fed. 39. See Marsh v. Atlantic & F. R. Co., 53 Fed. 168.

8 Wabash, St. L. & Pac. Ry. Co. v. Central Trust Co., 23 Fed. 513. 9 Oakes v. Yonah Land & Mining Co., 89 Fed. 243.

10 Springer v. Sheets (North Carolina), 115 N. C. 370, 20 S. E. 469.

closure sale and to redeem a mortgage, when the right of the complainant in the equity of redemption is disputed by the person in whose name the title stands, and who is joined as defendant with the mortgagee,11 and that, in a suit to establish an interest in land in the possession of a mortgagor, the mortgagor and mortgagee are interested in the same controversy with the plaintiff.12

§ 541e. Separable controversies in stockholders' suits. Where a suit was brought against two corporations and the directors of one of them, to set aside a conveyance made by this to the other, for an injunction against the directors as managing the affairs of the corporation and for the appointment of a receiver thereof; it was held that the controversy between the complainant and the directors was separable from that between him and the two corporations, and that the latter might remove the suit. In a suit to restrain two companies from voting on stock in complainant's corporation in their common interest, it was held that there was a separate controversy between the plaintiff and each of them.2

It has been held that there is no separable controversy between the corporation and the complainant in a stockholders' suit in which are joined as defendants the officers, although an accounting is asked against the latter; nor when other defendants are the officers, directors, trustee under a mortgage, and bondholders, and it is sought to set aside an exchange of stock for bonds, and there is a joinder of another corporation holding capital stock of the former company, a cancellation of which is prayed, together with an injunction against the latter exercising any control over the former and against the former permitting any transfer of such shares upon its books or any vote thereupon by the latter and against the directors of the former from acting as such; 5 nor in a stockholder's suit for an account

11 Faison v. Hardy (North Carolina), 114 N. C. 429, 19 S. E. 701.

12 Chester v. Chester, 7 Fed. 1. § 541e. 1 Geer v. Mathieson Alkali Works, 190 U. S. 428, 47 L. ed. 1122.

2 Kirby v. Louismann-Capen Co.,

221 Fed. 271. But see Baillie v. Backus, 230 Fed. 711.

3 Campbell v. Milliken, 119 Fed. 981.

4 Ibid.

5 MacGinniss v. Boston & M. Consol. Copper and Silver Min. Co., C.

ing by an individual and corporations controlled by the latter to recover funds of the plaintiff's company which had been misappropriated at different times by different defendants acting in pursuance of a common scheme or fraud. The fact that plaintiffs, in such a suit, hold stock of different classes, or that creditors, in a suit for an accounting by directors, hold claims. of different kinds, does not make the controversy separable, although they might have prosecuted several suits which they properly brought jointly. In a suit to prevent one corporation from obtaining and exercising control over another, there is no separable controversy between the plaintiff and the former. In a stockholder's suit to set aside a contract by his corporation, the controversy between him and the contractor is not separable from that to which the corporation is a party.9

§ 541f. Separable controversies in suits to enforce the liability of stockholders.

When no accounting of the assets or liabilities of a corporation is required, suits by receivers to enforce the liability of stockholders either upon unpaid subscriptions or their liability to creditors by statute,2 usually presents separate controversies between the plaintiff and each stockholder who is a defendant. But, it was held, that a creditors' bill, brought by several on behalf of the rest, to enforce a statutory liability of stockholders under a Colorado statute, by requiring each of them to pay the full amount of the same to a master, to be applied upon the debts pro rata, together with such sums as might be collected from other stockholders, the remainder to be returned,

C. A., 119 Fed. 96; overruling Lamm v. Parrot, S. & C. Co., 111 Fed. 241. 6 Baillie v. Backus, 230 Fed. 711. 7 Wilder v. Virginia, T. & C. Steel & Iron Co., 46 Fed. 676.

8 MacGinnis v. Boston & M. Consol. Copper and Silver Min. Co., C. C. A., 119 Fed. 96; overruling Lamm v. Parrot, S. & C. Co., 111 Fed. 241. 9 Cape Girardeau & St. L. R. R. v. Winston, Fed. Cas. No. 2,390; Wilder v. Virginia, T. & C. Steel

did not present a separate controversy between the plaintiff and any one of the defendants.3

§ 541g. Separate controversies in suits for the administration of the assets of a debtor.

1

Upon a creditor's bill for the collection and preservation of the debtor's assets and their distribution pro rata among the creditors, there is no separate controversy between the plaintiff and defendants, who claim a prior lien upon the assets; 1 nor between him and defendants, whom he contends should be excluded from participating in the distribution; 2 nor, it has been held, between him and a party, who is alleged in the bill to have assumed the obligations of the insolvent debtor. The same principles apply to similar suits by an administrator, or by an assignee for the benefit of creditors,5 or by a partner for a dissolution and the distribution of the assets of the firm.6

§ 541h. Separable controversies in actions upon promissory notes. The contracts and liability of the maker and the indorsers of a promissory note are separate and distinct from each other. When they are joined as defendants, there is a separable controversy between the plaintiff and each of the indorsers.1

3 Miller v. Clifford, 133 Fed. 880, 67 C. C. A. 52, 5 L. R. A. (N. S.) 49. § 541g. 1 Fidelity Ins., Trust & Safe Deposit Co. v. Huntington, 117 U. S. 280, 6 Sup. Ct. 733, 29 L. ed. 898; Graves v. Corbin, 132 U. S. 571, 10 Sup. Ct. 196, 33 L. ed. 462; reversing decree Corbin v. Boies, 34 Fed. 692; Torrence v. Shedd, 144 U. S. 527, 531, 36 L. ed. 528, 531; Rosenthal v. Coates, 148 U. S. 142, 13 Sup. Ct. 576, 37 L. ed. 399; Turnbull Wagon Co. v. Linthicum Carriage Co., 80 Fed. 4; Peters v. Peters (Georgia), 41 Ga. 242; State v. Adams (Ohio), 2 Ohio Dec. 119, 9 Ohio Cir. Ct. R. 21. Contra, Corbin v. Boies, 18 Fed. 3; Hack v. Chicago & G. S. Ry. Co., 23 Fed. 356. The same principle has been applied to a bill by a judgment creditor for his own benefit. Palmer

v. Inman (Georgia), 122 Ga. 226, 50 S. E. 86.

2 Graves v. Corbin, 132 U. S. 571, 10 Sup. Ct. 196, 33 L. ed. 462; reversing Corbin v. Boies, 34 Fed. 692; Colburn v. Hill, 101 Fed. 500, 41 C. C. A. 467; Burts v. Lloyd (Georgia), 45 Ga. 104, 12 Am. Rep.

574.

3 Mecke v. Valleytown Mineral Co., 122 North Carolina 790, 29. S. E. 781.

4 Peters v. Peters (Georgia), 41 Ga. 242; Burts v. Lloyd (Georgia), 45 Ga. 104, 12 Am. Rep. 574. See State v. Adams (Ohio), 2 Ohio Dec. 119, 9 Ohio C. C. R. 21.

5 Rosenthal v. Coates, 148 U. S. 142, 13 Sup. Ct. 576, 37 L. ed. 399. 6 Shainwald v. Lewis, 108 U. S. 158, 27 L. ed. 691.

§ 541h. 1 Sheldon V. Keokuk