16

93 FEDERAL REPORTER.

sion tHat serious hardship is be that the city cannot compel the to erect its poles and stretch its wires in the alley; but it has the}.>ower, if the necessity therefor exists, to compel the discontinuance of the use of :Main sheet, and in doing this it is bound to provide, if practicable, a reasonable substitute therefor. This it 'lias done. The'result is that the motion must be denied. Let an or,derbe entered 'accordingly.
RYDER et aI. v. BATEMAN et ux. (Circuit Court, W. D. Tennessee. October 3, 1898.) No. 526.

1.

REMOVAL OF CAUSES-POWER TO REMAND BEFORE TERM AT WHICH RECORD IS RETURNABLE.

Where, after the filing of a petition for removal, but before the first day of the next term of the federal court to which the record is returnable, application is made to such court for extraordinary relief, such as the appointment of a receiver to preserve the property, and by leave the record is filed, the court may then Inquire into Its jurisdiction; and if it will be without jurisdiction of the cause when the first day of the next term arrives, and especially if the su..."Pension of jurisdictit1n until that time is likely to result in injury to the parties, it may at once remand the cause to the state court.
AS EVIDENCE.

2. RECJ£lVER-HEARING OF

Though a bill waives auswer under oath, a sworn answer may be considered as an affidavit, the same as the bill, on an application for a receiver.

3.

GROUNDS FOR ApPOINTMENT.

A receiver will not be llppointed to take charge of real estate which Is in the possession of defendants, and to collect the rents therefrom, on the, applicati,on of complainants" who are out of possession, and seeking by their bill to establlsh a claim of ownership, where the only evidence before the court is the bill and the answer, which denies all the material allegations of the bill, and especially where it appears doubtful, on a consideration of the bill alone, whetp.er the complainant is entitled to possession.

"

8.AME-RIGHT OF TRUSTEE TO RECElvlil;a.

The fact that a complainant Is a trtlstee, and vested with the legal title to property, does not entitle her to the appointment of a receiver therefor, as against the beneficiary, who is' a married woman and in possession, where the trustee at the same time denies the trust, and asserts a ' hostile title to the property.

5.

SAME-SUIT TO RECOVER REAL ESTATE-INSOLVENCY OF DEFENDANT.

A court is not justified in appointing a receiver for real estate, of which the defendant Is In the possession and enjoyment under a claim of absolute ownership, on the application of an adverse claimant, unless there Is a reasonable probability that complainant's right will be established, and that the property Is in danger, both of which conditions should be established to the satisfaction of the colirt. In the absence of such proof, the Insolvency of defendant Is immaterial; and It Is also Immaterial whether defendant has the legal title, or the entire beneficial interest, with the bare legal tltle vested in a trustee.

111 Equity. On

for appointment of a receiver.

, The original bill sets out the will of one George P. Cooper as the source of title to the real estate Involve(i; the Iris C. Ryder claiming a life estate under that will, and the plaJntilf Pauline A. Ryder, who is her daughter,

RYDER V. BATEMAN.

i7

claiming the reversionary fel'! in the property under the wl1l of her grandfather. The bill avers that many years ago the plaintiff Iris C. Ryder (in 1878) "signed, sealed, and acknowledged, and caused to be placed on record," a certain deed, conveying the property to a trustee, "for and in consideration of the natural love and affection which she, the said Iris, has and bears to her daughter Marie V. Swingley, and for and in consideration of five dollars cash in hand paid by said Adams," to have and to hold "in trust for said Marie V. Swingley forever, in fee simple, free from any and all debts and liabilities, as well as from the control of any husband she may ever have, to her only benefit and behoof." This )Iarie V. Is the defendant, and her husband, Bateman, is the co-defendant, to this bill. The bill further alleges that the financial consideration for this deed was never paid; that the deed was never delivered; that the defendant :Slarie was not the offspring of the said Iris C. Ryder; that she had one child of the marriage to her first husband, A. L. Swingley, but that that child died, and the defendant 1larie "was related blood to the first husband of the complainant Iris C. Ryder, and, when a small child, was taken by complainant Iris C. Ryder and her first husband into their family, and by them raised and cared for"; that such care has been continued, she being supported out of the rents of the property, until her marriage to Bateman. The bill next alleges that by a second marriage the plaintiff Pauline A. Ryder is the only child of the other plaintiff, Iris C. Ryder, the daughter of said George P. Cooper, the testator, and that they are the sole owners of the property, under the will. It further alleges that Bateman and wife are in possession, claiming title under the deed of gift, claiming the rents, refusing, as the agents of the plaintiff, to pay them over to her, and entirely excluding both plaintiffs from all share in them, and that they are endeavoring to sell the property, and are insolvent. It prays for a receiver, for an injunction, and that the deed of gift be canceled, "as a cloud on the title of the plaintiff." This bill was filed on or about the 28th day of )Iay, 1898, in the chancery court of Shelby county, Tenn., after which certain proceedings were had in that court until the 2d day of July, 1898, two days before the process required the defendants to answer In that court. On that day the defendants filed their petition to remove the case to this court, in which they state "that they are both residents of the state of California, and that their home and residence was in said state of California at the time when this suit was instituted"; that petitioner Marie V. Bateman "is a citizen of said state of California, and was a citizen thereof at the time this suit was instituted"; that petitioner Louis T. Bateman "Is a citizen 'of Great Britain, and was a citizen thereof at the time when this suit was Instituted"; "that at the time this suit was Instituted the complainants, Pauline Agnes Ryder and Iris C. Ryder, were both residents and citizens of the state of New York, and they both are still residents and citizens of the state of New York"; "that the defendant Louis T. Bateman is merely a nominal defendant, and is only sued in his capacity as husband of Marie V., and petitioners allege that the controversy is separable, and can be fully determined, as between your petitioner Marie V. and the complainants, without the presence of any other defendant." The necessary bond was filed along with this petition, but the record does not show that any order of the state court was ever entered, approving the bond, and directing the removal of the case to the federal court. The term of this court next ensuing after the filing of the petition tor removal will occur on the fourth Monday of November, 1898. A. transcript of the record was tiled in the clerk's office of this court August 4, 1898,-how or by whom does not appear, but certainly without any leave of the court to that end. That transcript shows that, among other proceedings in the state court, on the 1st day of July, 1898, the day before the petition for removal was filed, the plaintiffs were granted leave to amend the bill, and given 10 days within which to file the amendment, and that on the 7th of July, 1898, after the petition for removal had been filed, the plaintiffs filed in that court the amended bill appearing in the transcript. 'We are informed by the brief of counsel, and the presentation of a copy of the chancellor's order, that, notwithstanding the petition and bond had been filed, the piaintiffs, ignoring the petition for removal, moved in the state court for a pro confesso, and appointment of a receiver by the chancellor. This he refused, as appears by a copy of his order presented by' counsel, because the 93 F.-2

18

9& FEDERAL REPORTER.

case had already been removed to the United States circuit COUi"t. and because the Insolvency of the defendants and Injury to the complainants. were flatly denied. ImmediateJy after the order of the chancellor the receiver, notice of this application .for the appointment of a receiver In this court was served, on the 13th day of August, 1898, after which defendants filed their sworn petition asking for an order compelling the plaintiffs to produce a certain deed, known as "Exhibit D" to pla).ntlffs' amended bill, which they allege is a forgery, and that it was necessary for them to see the, original document before they could file their answer, which they desired to use on the hearing of this application for a receiver. That application of the defendants was refused, for reasons stated in the opinion of the court heretofore filed herein. The amended bill supplements the original bill with allegations of a somewhat different character. It avers that Nathan Adams, the trustee in the deed of gift, having died, the plaintiff Iris C. Ryder was substituted in his stead by a decree of the chancery court, upon proper proceedings Instituted by her for that purpose, by a bill against the defendant Marie and the heirs of the deceased tru$tee, and that as such substituted trustee she .is entitled to all the rights and powers ve.sted in him, and "is alone entitled to collect the rents," etc. It then alleges that after the defendant Marie became of age, and in 1891, she executed "a deed or contract" whereby she, "confirmed" the plaintiff Iris C. Ryder's "right to manage and control the, said property in as full and complete a manner as she would have managed and coptrolled it had the deed filed as Exhibit B.to the original bill not been made." and "agreed, in consideration of the gifts she had received from complainant Iris C. Ryder," that the plaintiff Agnes P. Ryder "should share with herself the rents. and pmfits derived .fro!p the said lands." . It next alleges that Bateman, the husband of the defendant Marie, is extravagant and wasteful in his habits, that he entirely,donainates and controls the defendant Marie, and that, unless restrained, he will (lonvert, t411 entire rentals and,proceeds of sale, if able to sell, to the gratification of his own, pleasures, and not to the exclusive behoof, use, and benefit of·Marie V. Batem,ap, his wife., It also fllleges; as does the origiIUlI bill, tha,t LQuis T., Bateman and Marie y. Bateman are entirely insolvent,. and, if they are permitted to collect the .rents on the real estate; the complaipants will sustain il'l1 parable injury. The amended bill prayS for a receiver, for the same relief as ,thlil original biJl, and "that on the final hearing of this cause the plaintiff Iris e. Ryder 1:)-e"given control and IDaIUlgement of the property" and ,the right tq collect the by virtue of her trusteesbJp. B\>th bills Wlj,ive the oath Qf defendants tothelr answer, and both the original bilI and the amended bill are e.Wo1,"Il to. The original bill alleges thatPaul.ineAgnes Ryder, of a minor without a guardian, and sues pyherIlfother and next .e. that they are both residents of the city of York,and state<lf New York,and tha,tthe defendc antl!, aJ;Ldhis wife,' :V:·. Bateman,' are residents of the c;ounty. ()f state. of TeAnessee. "'.". :., " the Illation for all"qrder for exhibit was .refqsed,. thedefendantf\, on the 29th Of 1898, ,fHed their answer to amended bill, The to. ,by the defendants, alld ;along with tIle trans<;ript sta.te .cp:Qrt, to be .use(i upon the hearing .of this application for .a Till/l ,answer dellies almost every materia,!' stat\lplent of.t',he bill bm. It denies that under the wmofGeorge, .P, COOVer thel,'e c(lntei;redonly aliie estate on the sald IrIse.Ryder, as charged In the, bill, anl1,jnslsts that she acquired a feesimple t.itle tllep,roperty she will, and states that. on the' 30th day. of Ja,nuary, 1890, by a proper. decree of the chancery court ,of Shelby CQuilt}';.inJhe case ail,(iothers, with all the proper,. It, and especiallY' with bQth the plaintiffs and the de?;I:ll,l';!e V. Swingley aspartles to the bill, that court construed the will as. conferringuP9n 'the diwgllters of GeQrge P; Coo'per aJ:lestate In fee, and ;l).ot an estate; fqr .a remaip.qer i ?ye.r to thelrchUdren. . The answer denIes tl;lattl;ie ·p1allltifJ' Pauline' Ryder Is {he only living child of th.e !laid Iris C. RYder,: arid thatl>lj,l,d fa1,1line ever became eJ,ltitled, by her birth, or at any time" to.. any interest in said property by virtue. of the will of her cllargool.p.the bill. It emphaticallY'denies that Marie V.

RYDER V. BATEMAN.

19·

Swingley was taken when a small child and raised and cared for by the plaintiff Iris C. Ryder, and says that she is the lawful child of the said Iris C. Ryder, born in lawful wedlock between her and her deceased husband, A. L.Swingley, and that the "respondents are pained and shocked beyond degree to have such a:false assertion made and sworn to by the said Iris C. Ryder." It states that the said Iris Hyder has many times, in courts of justice, by her oath declared that she was the mother of the said Marie; that she has always been reputed to be the child of said Iris C. Ryder and her first husband, A. IJ. SWingley. It admits a deed of trust from the said Iris C. Hyder to Nathan Adams for the use and benefit of the defendant, and avers that it was properly delivered to the trustee, or in some other way, for her benefit, about the-date of its execution. It sets up that the plaintiff Iris G. Hyder in February" 1872; was appointed the guardian of the said Marie, upon a bond which was then, and is now, insolvent, and that, shortly after she was qualified as guardian, the plairitiff Iris C. Ryder obtained the sum of $5,000 life insurance on. 'the life of defendant's father, A. L. Swingley, which belonged exelusively to the defendant Marte, as his daughter; that, immediately upon the receipt 'thereof by the plaintiff Iris C. Ryder, she converted the money to her own use, and .has never paid to the respondent any part thereof, either principal 0·1' interest, and that' said sum of life Insurance money, with compound interest, as under the law the plaintiff would be bound to pay, woul4 be in excess of the value of this property; that her father left other propert)' belonging to the respondent, which the said Iris C. Ryder also has converted to her own use. It then states that in March, 1878, immediately after the execution of the deed of settlement to Adams, the plaintiff Iris C. Ryder, as the guardian of the respondent Marie, collected the rents and profits of the real estate in controversy, and has treated the property as the property of the ",aid Marie ever since that time. It alleges that the respondent Marie has had undisputed possession under the said deed from Its date up to this time, a period of over 20 years, and pleads the statute of limitations, and the 7 years' continuous possession aitd 20 years of uninterrupted ownership, as a defense to any claim of title in the plaintiffs. It denies that there were any errors In the description of the property, as alleged in the bill; and, if there were, it would not avail the plaintiffs to set the deed aside. It denies that the finandal consideration of five dollars was not paid. It sets up laches on the part of the plaintiffs in so long Withholding this bill. It then says that the respondents never knew or heard of the existence of the "forged deed of September 28, 1891," until it was set up in the amended bill; and against any claim under it the answer again sets up the statute of limitations. The answer then denies that the respondents are attempting to sell the property, or put in any way a eloud upon or Incumber the title; denies that they or either of them is insolvent, or that plaintiffs will sustain any Injury by the defendants' continued possession of the property. The answer alleges that the plaintiff Iris C. Ryder during all the time of her guardianship has collected about $200 per month rent from this property, for which she has never accounted to the defendanf Marie V., nor to the court that appointed her, as her guardian and trustee, but that the money has been converted to her own use. The answer then sets up that in June, 1890, the plaintiff Iris C. Ryder conveyed a large amount of property in Shelby county to her co-defendant, Pauline, and that, by a proceeding In the chancery court for that purpose, part of that property was sold, and out of the proceeds thereof the defendant Marie was allowed to borrow the sum of $5,050 upon a mortgage contract signed by the said Marie and her mother, Iris C. Ryder, at an annual interest of about $300,-the property In controversy in this suit having been conveyed under the mortgage as a security for that loan,-and that the plaintiff Iris C. Ryder joined as grantor In the mortgage in order to execute the supposed trust held by her under the provisions of the decree substitUting her as trustee for Adams, the original trustee, who had died. The answer then avers tlmt "respondents emphatically deny that the defendant Marie 28th day of September, 1891, or at any other time, executed a deed such lu:fis exhibited by the purported copy thereof made Exhibit Dto the amended'ljlIl." "Respondents deny that such a deed,' or any deed of that character, was ever executed," and say that "the said deed is a and bungling forgery, which has been prepllred and concocted

20

93 FEDERAL. REPORTER.

by the said Iris C. Ryder with the intent and purpose of using it as a means of cheating, and defrauding these respondents." The answer pleads, as to the deed, non est factum, and then proceeds to aver "that if such a deed could have been procured from said Marie, as charged, or if the fact be found to be ·so, then they charge that it was procured through fraud and duress, and without a knowledge of its contents ever having been communicated to respondent Marie." 'rhe answer. avers that they have made numerous and sundry applications to be permitted to see the olc"iginal deed, which has been always refused. .'l'he answer says that, at the time the deed purports to have been e+ecuted, }farie had just come of age a few days previous; that bel' mother had been her guardian, and had received $5,000 of her interest money, and the accumulated interest thereon, and had never made [I"" settlement with her, and besides was claiming the right to exercise consttlllt dominion and control over the affairs of the respondent, in consequence of her trusteeship, and she thereby dominated Marie and her affairs so as to place her under great duress. The answer then says that the said Iris O. Ryder is totally unfit to act as trustee for anyone, and that especially is she unfit to execute any trusts connected with respondent's interests,. because "she is given to gambling in futures, and squanders the money she can get, .in the bucket shops of New York." It states that she has all these years purported to act as trustee under the decree substituting her fOJ Nathan Adams, without ever having given any bond .as trustee, without ever having taken the oath of trustee, and that neither bond nor. oath have been waived in the deed creating the trust. The answer denies that she is trustee under that substitution, 01' can claim any rights against the respondent because of it. It sets up that the plaintiff Iris C.R3'der committed a breach of her trust under that deed and decree of substitution, by conveying all the property in controversy to her co-defendant, Pauline,on the 7th day of June, 1898, and that she is seeking by this deed and proceeding to betray her trust. The answer admits that the defendants are asserting the right to appropriate and collect the rents and profits of the propertY,·and deny that the said plaintiffs have any right 01' share therein. The answer alleges that the deed to Nathan Adams only created a dry and naked legal title in him, and that they are that tJie trust ceased to be an active one when the defendant Marie became 21 years of age, and, while the deed expresses the consideration of love and affection, yet the grantor, Iris C. Ryder, was then indebted to the defendant Marie, principal and interest, in the sum of seven 01' eight thousand dollars, and that this indebtedness constituted a part of the consideration for the deed. The answer charges that this proceeding is instituted for the purpose of placing the defendants in flnancial straits, through the operation of a receivership, so as to force them into terms which they could not otherwise obtain, and to further embarrass the defendants by depriving them of the means of paying the interest on the mortgage debt, so that it may be forced to a sale under that security. It states that the defendants have spent several hundred dollars in repairing the property, and have given great attention to the procurement of good tenants, that the taxes are kept paid. and the interest 'on the mortgage debt is kept paid. and that the husband of the respondent is not extravagant and wasteful in his habits, but is saving and economical in his conduct; and it closes by saying that the defendants are under the necessity of keeping the interest, taxes, and repairs paid, and to "reimburse themselves for expenses, and maintain their credit and character as reliable and responsible citizens, which said Iris C. Ryder has sought to destroy by a wicked and unfounded criminal prosecution, and by a receivership herein on a pretended claim of right on her part."

L. T. }f. Canada, for plaintiffs. Edgington & Edgington, for defendants. HAMMOND, J. (after stating as above). No affidavit or other proof has been filed on either.illide to support the remarkable statements of this original and amended bill, or the not less remarkable statements of the answer which has been filed to it;

..1

RYDER V. BATEMAN.

21

and we are left, on this application for a receiver, to determine the question upon these bare statements alone. The slightest inspection of this record shows that there are the gravest questions of our jurisdiction, both as relates to the parties and the subject-matter, under the acts of congress regulating removals from the state courts of suits between citizens and aliens, and forbidding the federal equity courts to entertain jurisdiction where there is a plain, adequate, and complete remedy at law. Acts 1fl87-88, cc. 373, 866, § 2 (24 Stat. 552; 25 Stat. 433); 1 Supp. Rev. St. pp.611, 612; Rev. St. § 723. Nor are these questions any less intricate when complicated with the irregularities of practice that have place in this case by filing an amended bill in the state court after the petition and bond for removal had been filed; by filing the record in this court, without any application or leave of the court, before the time prescribed by the removal act for its transmission to this court; by filing the defendants' answer without like leave to file the record here; and by submitting this motion for a receiver upon an irregular record, with no proofs, by affidavits or otherwise, in support either of the bill or the answer, the oath to which is waived; the bill and answer being also flatly contradictory in almost every statement, and especially as to the "residence" of the defendants seeking to remove the case, so essential, under the act of 1887, to be established for purposes of jurisdiction by removal under that act. The bill says they are residents of Shelby county, Tenn., and the petition for removal says they are residents of California,-oath against oath. The petition for removal also avers that the defendant husband is, and was at the time suit begun, "a citizen of Great Britain,''"'and the wife a citizen of California; and it is by no means certain that this is a sufficient description of his national character, though the case may be distinguished, probably, as to that expression, being the equivalent of the more technical form of ancient usage,-"an alien, and a subject of the queen of the United Kingdom of Great Britain and Ireland," or "an alien, and a subject of the kingdom of Great Britain." Stuart v. City of Easton, 156 U. S. 46, 15 Sup. Ct. 268. Besides this, it has not yet been definitely settled, so far as we are advised, whether or not the defendant wife by her marriage to an alien has not herself become an alien, at least so far as the right to sue, and the liability of being sued, in the federal courts are concerned. Pequignot v. City of Detroit, 16 Fed. 211; Comitis v. Parkerson, 56 Fed. 556. It also appears that the plaintiffs are citizens of New York, so that the suit is one in which none of the parties are citizens, inhabitants, or residents of the state in which the land in controversy lies, and in which the suit is brought, if the removal petition states the truth, but citizens of another state are suing defendants, who are both aliens, it may be; and, while the petition says they are "residents" of California, the bill says they are "residents" of Tennessee. Cooley v. McArthur, 35 Fed. 372; Cudahy v. McGeoch, 37 Fed. 1; Walker v. O'Neill,38 Fed. 374; Sherwood v. Valley Co., 55 Fed. 1. Is an alien a "resident" of any state, within the purview of this act of congress? Steamship Co. v. Kane, 170 U. 8. 100, 18 Sup. Ct. 526; Railway

22

93

.\

\,. r·:·: ,(,:'

FEDERAL REPORTER.

Co. v. Gonzales, l51U. S. 496, 5()6, 507, tion for removal asserts l! and. thlltthe. husbal)d only a nominal but ,,:hfln Ii. husband and wlfearec4a,rged as JOlllt wlthholdmg the possession realestltte from the plaintiffs, da,.iming. to be the rightful own,ers? Starin v. City of York, 115 U. S. 248, 6 Sup. Ct. 28; Anderson v. Watt, 138 U,S. 694, 11 Sup.Ci;. 449. , .' The ,questions arisingurider Rev..St. § 723; as to edy at law, we quite alii .complex as p.ny above noted: Whether, if this be a bill "to remove a cloud" trom the title of the plaintiffs, they can sustain it, being out of possession. Lacassagne v. Chapuis, 144U. S. 1:t9, 12 Sup. Ct... 659; Whitehead. v. Shattuck, 138 U. So 146, 11 Sup. Ct. 276; Scott v. l;10 U. S. 106, 11 Sup. Ct. 712. Whether of an answer waived this objection. Reynes v. Duin:oJiti130 U. S.355,9 Sup. Qt. 486; Kilbql,lrn v. Sunderland. 130 U. s. 5015, 9 Sup. Ct.594; Betts v. Lewis, How. 72; Reynolds v, Watkins, 9 O. C" A., 273, 60 Fed. 824; Wait v. O'Neil, 22 C. C, A. 76 Fed 408; }d., 72 Fed. 348. '. 'Whethe;.o it is in fact a bill to remove a cloud, lind not maintainable, ,or is inf,act a bill to r.esciu,d pne's deed of gift for want of consideration, or (taking the irffg)J.larlYtiler amended, bill into consideration) a bill to enforce the deviSes 'of a will,. or one to enforce the trusts of a settle,nent by Of, gift to pl;'otect a married wOlllall,or t'\1e.,sp cific performli:llce,qi a contract to share the "proceeds" of real estate, and for its "nianag,ement andcontrol/' and therefore maintainable, in some of theseaspects, undel' the general prayer for relief, although not underthe. special prayer to remove a Cloud.lnconsistent as these claims for relief may be, under a general prayer, there being no demurrer or plea to the jurisdiction, whether or not, again, tb,e 1l}ing of the answer has not wtl,iv,eq all objections in that behalf; a plea only being appropriate to present the antagonistic, facts set up in the answer as against the jurisdiction of a court of equity to entertain the bill in any aspect. This opens rather wide field of inquiry as to the effect' of Rev. §., 723, on a bill so inartistic as this, and so destitute of any interpretation by its prayer of what is Wllnted in the way of relief, except that a receiver is wanted, as if that might be the main purpose of the bill, instead of an incidental purpose, dependent upon a fairly made out case of prima facie right to the property, through established methods of equitable relief or remedy, and not a mere aqtion at lawtorecover a possession wrongfully withheld, which an action of ejectment would' remedy, in some oOts aspects, at least. Where is the legal title to this property, in the view of the bill? Clearly, in the plaintiffs,-one or both. Then why would not ejectment lie? If one out of possession cannot, in a federal court of equity, maintain a bill to remove a qIQud. from legal title, particularly when the alleged cloud is one's own deed, nQtdenied as to its but only to its effect, thel;'e being a failure of cODsideratiot:J-, ,of jurisdiction be open, notwithstanding ;case be remanded to t4e' Sltate court, if such a jurisdiction mj:\y ,be there, be docketed here on the law side as an action at law rightfully removed, upon a rule

a

RYDER V. BATEMAN.

23

to replead, or be dismissed without prejudice to bringing an action at law? These are all perplexing questions, not very easy of solutiDn on a record such as is now presented. Yet, under the strict command of section 5 of the act of 1875, still in force, that if at any time it shall appear, no matter how, that the court has no jurisdiction, the suit shall be dismissed or remanded by the court on its own motion, it is always the duty of the court to look to the jurisdiction and determine it. Act 1875, § 5 (18 Stat. 472); 1 Supp. Rev. St. p. 83; Morris v. Gilmer, 129 U. S. 315, 325, 9 Sup. Ct. 289; Cameron v. Hodges, 127 U. S. 322, 326, 8 Sup. Ct. 1154; Graves v. Corbin, 132 U. S. 571, 590, 10 Sup. Ct. 196; Crehore v. Railway Co., 131 U. S. 240, 9 Sup. Ct. li92. So, when an application is made for the appointment of a receiver, it becomes all the more necessary to look immediately to the question of jurisdiction, lest, if one be appointed, other perplexities arise, that might embarrass the court, if it should turn out there was at the beginning no jurisdiction of the case. Electrical Supply Co. v. Put-in-Bay Waterworks, Light & Railway Co., 84 Fed. 740; Gumbel v. Pitkin, 124 U. S. 131, 8 Sup. Ct. 379; Compton v. Jesup, 15 C. C. A. 397, 68 Fed. 263. The question whether the court or judge mayor shall remand the case for want of jurisdiction on the occasion of an application for a receiv,er, or other extraordinary action, made in the time intermediary from the filing of the removal petition in the state court to the first day of the next term of the federal court, to which alone the record is returnable, by the very terms of the statute, has never been authoritatively decided, so far as I am aware. Rev. St. § 639; Act 1875, § 7 (18 Stat. 472); 1 Supp. Rev. St. p. 83; Acts 1887, 1888, § 3 (24 Stat. 552; 25 Stat. 433); 1 Supp. Rev. St. pp. 611, 613; Frink v. Blackinton Co., 80 Fed. 306; Hamilton v. Fowler, 83 Fed. 321. Nevertheless, it would seem that, if the court within that time may take' extraordinary jurisdiction for extraordinary purposes, it might and should then and there remand the case, if it have no jurisdiction, without pretermitting that fundamental inquiry to a later date; especially if the parties were likely to suffer injl1ry by a long delay between terms, as in this case of quite five months between the two dates. The rigid rule that the federal court can acquire only strictissimi juris, that its jurisdiction is defeated unlesstbe record is filed strictly accor:ding to the statute, and that it has no power to proceed, or authority over the case, generally, until that date arrives, must, ex necessitate rei, yield to the circumstance that the injury' of a suspension of jurisdiction between the two courts, as if between the heavens and the earth, may involve the parties in serious loss, and the court in the embarrassment ,of appointing a receiver where there is no jurisdiction to do anything at all in the premises, instead of remanding the case at orice to a court competent to deal with that question without any embarrassment. Either the relief that comes of remanding the case under such circumstances must be Classed with that of granting injunctions, dissolving them, appointing receivers, and the like, as extraordinary relief, which, like the, others, the court may grant, within the time, as of necessity, against the general rule, or else section 3 of the act

24

93 FEDERAL REPORTER.

of 1SJ5, as, amended by the acts of 1887 and 1888, 'requiring tIle record to be filed at the next succeeding term of the federal court, must be construed, pari passu, with section 5 of the act of 1875, and intbe light of the always established rule that the federal court might take intermediate and extraordinary jurisdiCtion for the purpose 6f preserving the property, and the like, and for that purpose, if circumstapces demand it, may at that time remand the case, if there can be no jurisdiction acquired when the first day of the next term arrives,-if the jUl'isdiction be hnpossible by any further action to be taken in the case, and the filing of the record at the statutory time cannot confer or complete it. Why should the case be longer held, if there can be no jurisdiction? True, this question, perhaps, should be asked rather of congress than the courts; but by construing the two sections, as above suggested, for the common good of the general seheme of the statute, we may hold that the one is modified by the other, so that, if, by leave of the court, for some extraordinary purpose, on the application of either party, the record be filed before the first day of the next succeeding term of the federal court, that court also acquires jurisdiction then and there to remand the cas'e, if it can have no jurisdiction of it, and, in obedience to the fifth section of the judiciary act, must remand it. In the case of Respublica v. Betsey, 1 Dall. 468, 478, the word "not," in a statute, was eliminated on this principle of construction, the court remarking that:
"In the construction of statutes, too, judges have sometimes gone contrary to the general wordS of it. They have expounded the words of an act contrary to the text, to make it agree with reason and equity."

Again, in Levinz v. Will, 1 Dall. 430, 433, while construing stat. utes, the court observes that:
"In doubtful cases, therefore,...we may enlarge the construction of an act of assembly, according to the reason and sense of the lawmakers, either expressed in other parts of the act itself, or guessed by considering the frame and design . of the whole," Citing Arthur v. Bokenham, liMod. 161.

If the act, therefore, may be so enlarged as to take jurisdiction before our term for SQme extraordinary purpose, it may be so en· larged as to effectuate tlmtsame purpose by some other extraordinary relief, if need be. . . The foregoing questions as to. our jurisdiction have engaged, therefore, my serious attention, with the purpose of immediately reo manding the case, if it should pe found that we certainly were without any jurisdiction of it, and that it ought to be remanded. But, as now advised, it seems that we have jurisdiction both of the parties and of the asa court of equity.. However that may be, for the the jurisdictional questions are reserved for the progress of the case,'as the parties may be advised in the premises. For the purposes of this application, the bill. will be treated as well filed in equity, at least for the purpose of letting an equitaof her share of ble, if not a legal, joint tenant into the the rents and profits under the· deed from the feme defendant to the plaintiffs. It is true that an' action 9fdebt or assumpsit might lie for any share of the rents collected and wrongfully withheld., but

RYDER V. BATEMAN.

25

this would scarcely be adeq\late or complete, and would require a constant bringing of suits as fast as the rents were collected. Besides, for the present the answer will be treated as a waiver of all objections on the score of a want of equity in that behalf, as well as to the whole bill. In that view, this would he technically a bill for the specific performance of that deed 01' contract. Apart from that deed, the suit is a mere struggle over the legal or equitable title by claimants out of possession against one in possession under a deed especially good against the plaintiffs, if it be good at all, against the averments of the bill. And this is the best attitude of the case as presented for the plaintiffs on their application for a receiver. bill is sworn to, and there is not an item of proof otherwise offered in support of the application for a receiver. Concede that it may be used as an affidavit in support of the application, and it is fully met by the sworn answer of the defendants, which flatly contradicts everv essential statement of the bill. The oath to the answer is waived, and it is thereby, perhaps, even on an application for a receiver made by the plaintiff, shorn of the ordinary force of an answer in chancery as proof on all the issues of the case, Yet it is as good as the bill, as an affidavit, and then we have an exact equilibrium of proof as to the facts,-oath against oath, and nothing more on either side. But the one is the oath of a claimant of ownership in possession, in support of that possession; and the other, of a claimant out of possession, seeking to establish an adverse claim of ownership. The circumstances of this possession' do not distinctly appear. The bill says-incidentally, somewhat-that plaintiff Iris C. Ryder, on account of her devotion to defendant Marie, "has permitted her and her husband to act as the agent" of the plaintiffs "in the collection of the rents, permitting the said Marie Bateman and Louis T. Bateman to enjoy a portion of said rents when so collected"; that this was their only means of livelihood; that they have taken advantage of this "generosity," and now set up an exclusive right to the property under the deed of gift, denying all right of plaintiffs, having "accounted to 'complainant for an insignificant amount of the rents they have collected." The answer treats this part of the bill somewhat obscurely, and sets up adverse possession in defendant Marie ever since the deed of gift, about 20 years, that the possession of the plaintiff was held as guardian or trustee for the defendant Marie, that she has never accounted to defendant, but has appropriated the money largely to her own use, and misappropriated much of it by "gambling in the bucket shops," The result of this, as evidence, is that the defendants substantially deny any agency, and claim the possession as one in their own right; and again it is only oath against oath, with the burden of proof on the plaintiff. Thus it is with all the important facts,-as to the proof of them, the burden of proof being always on the plaintiffs, it must be remembered. 'rhe bill says that the original deed of gift was never delivered. answer says it was. The fact that it went to record appears, Hnd is not denied, which is a corroborating .circumstance, if not a conclusive one, in favor of delivery, standing