February 15, 1888, Tenney answered the amended bill of complaint, stating, among other things, that he 'admits that said defendant Connell, by deed to this defendant and to said defendant Lay, conveyed the portions of said land in said bill of complaint described as having been so conveyed; but this defendant denies that said deeds were made after the filing of said bill, but, on the contrary, the defendant charges that said deeds were made, executed, and acknowledged on the day which they bear date.' On the same day the answer of Connell to the amended bill was filed, and on February 22d the answer of Lay, containing similar allegations. Replications were filed to these answers, and the cause was subsequently heard, and a decree rendered in favor of the complainant, with costs, it being stated at the foot of the decree: 'To the jurisdiction of the court to render a decree herein the said respondents object, and to which several findings and each thereof, and to which said decree, the said respondents except, and pray an appeal, which is hereby allowed,' etc. An appeal was subsequently prosecuted to this court.
W. J. Connell, for appellants.
W. J. Bryan, for appellee.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.
On behalf of appellants, briefs are submitted for appellant Connell only, and his contention is that the decree should be [156 U.S. 335, 339] reversed, and the cause remanded, with a direction to remand it to the state court, because improperly removed to the circuit court.
The grounds urged are that Tenney and Lay were interveners, deriving title from Connell, the original defendant; that they were purchasers pendente lite, because their deeds were not delivered or were not recorded prior to the commencement of the suit; that they, therefore, were not entitled to remove, because Connell was not; that the application was made too late; and that there was no separable controversy as to petitioners capable of removal.
Whether the petition for removal was filed in time it is immaterial to consider, as neither Tenney nor Lay, who petitioned for removal, nor Connell, who consented as a party and participated as their attorney, can now raise the objection. Ayers v. Watson, 113 U.S. 594 , 5 Sup. Ct. 641; Martin's Adm'r v. Railroad Co., 151 U.S. 673 , 14 Sup. Ct. 533.
By the second section of the act of March 3, 1887, as corrected by the act of August 13, 1888, it was provided: '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 defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district' (25 Stat. 433, c. 866); and by the fifth section of the act of March 3, 1875, 'that if, in any suit commenced in a circuit court or removed from a state court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed as justice may require, [156 U.S. 335, 340] and shall make such order as to costs as shall be just' (18 Stat. 470, 472, c. 137, 5).
And since, 'on every writ of error or appeal, the first and fundamental question is that of jurisdiction, first of this court, and then of the court from which the record comes, this question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it.' Railway Co. v. Swan, 111 U.S. 379, 382 , 4 S. Sup. Ct. 510.
If plaintiff had brought his suit in the state court against Tenney or Lay alone in respect of the particular parcel of land claimed by either, and, on proper petition, the defendant had removed the case to the circuit court, where it had thereupon gone to decree against him, he could not have procured a reversal on the ground of want of jurisdiction of the circuit court, unless the record had disclosed that Connell was an indispensable party, and equity rule 47 inapplicable, in which case this court might have reversed the decree and directed a dismissal of the suit.
As remarked in Railroad Co. v. Ide, 114 U.S. 52, 56 , 5 S. Sup. Ct. 735: 'Separate answers by the several defendants, sued on joint causes of action, may present different questions for determination, but they do not necessarily divide the suit into separate controversies. A defendant has no right to say that an action shall be several which a plaintiff elects to make joint. Smith v. Rines, 2 Sumn. 348, Fed. Cas. No. 13,100. A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his own suit to final determination in his own way. The cause of action is the subject-matter of the controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings.' But where a plaintiff has brought suit against a sole defendant, and others, intervening, claim several interests in the subject-matter, involving separate defenses as to such interests, separable controversies might be held to exist as to them, although the developments in the after progress of the case might show they were not such.
Plaintiff brought his suit seeking relief as against Connell [156 U.S. 335, 341] alone. Tenney and Lay intervened, claiming to be owners of distinct portions of the tract, and removed the suit on the ground that the controversy as to each of them was separable; and according to Barney v. Latham, 103 U.S. 205 , and Brooks v. Clark, 119 U.S. 502, 512 , 7 S. Sup. Ct. 301, the whole case was removed, the record here adding that the removal as to Connell was 'by consent of parties.' It is now said there was no separable controversy, because the controversy indicated could not be fully determined as between Tenney and Lay, or either of them, and the plaintiff, without the presence of Connell. This, however, if so, did not appear at the time of the removal, and whether it did afterwards in such wise that it became the duty of the circuit court to remand the cause, because not really and substantially involving a dispute or controversy not properly within its jurisdiction, is determinable on other considerations.
Appellants do not deny that the petition for removal was presented in good faith; and, although it left much to be desired in the way of fullness and accuracy, it set up a separable controversy, which might have involved the defense of bona fide purchase for value without notice, and apparently could have been fully determined as between them and the plaintiff, even in respect of the proceedings on execution, in the absence of Connell, who cannot be allowed to say that his claim to the remaining portion of the land would have been legally affected by such determination. The question before us is, therefore, whether it appeared on the hearing that no such separable controversy really and substantially existed, and that the circuit court erred in not remanding the case. The cause was heard upon the merits. The record does not purport to contain all the evidence, and most of the depositions and the exhibits are omitted in printing by designation of appellant under rule 10. There is evidence tending to show that Connell conveyed some 20 acres to Lay at or about the time of a settlement between them, but the deeds to Lay and to Tenney do not appear. Whether, as matter of fact, Tenney and Lay were purchasers pendente lite, or the controversy as to them was not separable, is not so disclosed as to compel the [156 U.S. 335, 342] reversal of the decree at the instance of appellants, and in spite of the position they occupied to the contrary. It is suggested that the principles in relation to separable controversies were not so well understood in 1887 as at this date, and except for that appellants would not have attempted to remove the cause; but the petition, though imperfect, was sufficient to accomplish the result of forcing appellee into the circuit court, and we find ourselves at liberty to decline to deprive him of his decree on the ground that the cause was not rightly transferred.