GARDNER
v.
BROWN
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Gardner sued to foreclose a mortgage (deed of trust) held by Walker as trustee, seeking to have the court order the sale of the mortgaged property to satisfy the debt without relying on the trustee's special power of sale. The Supreme Court affirmed the Circuit Court's decision to dismiss the case and remand it to state court, holding that Walker, as the party holding legal title to the property, was a necessary party to the foreclosure action and that the case could not be removed to federal court without him.
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The CHIEF JUSTICE delivered the opinion of the court.
The order of the Circuit Court dismissing this cause and remanding it to the State court is affirmed.
By the terms of the mortgage, a deed of trust, Walker, as trustee, was authorized, upon default of payment of the debt, to take possession of the mortgaged premises and sell them upon certain specified terms and conditions. It is claimed in the bill, that he had not qualified himself under the laws of Tennessee to act under this power, and the suit was brought to foreclose the mortgage in chancery, without reference to the special power of sale. Walker, the trustee, was made codefendant with Gardner, the mortgagor, the object being to reach the property in his hands as trustee, and subject it, through the ordinary powers of a court of chancery, to the payment of the debt it was given to secure.
The motion of Gardner, the mortgagor, to transfer the cause, as to himself, to the Circuit Court, under the provisions of the act of July 27th, 1866, could not be granted unless there could be a final determination of the cause, so far as it concerned him, without the presence of the other defendant as a party. And we think that the Circuit Court was right in its opinion that Walker was a necessary party to the relief asked against Gardner, and in refusing to entertain jurisdiction and in remanding the cause. The bill prayed a foreclosure of the mortgage by-a sale of the land. This required the presence of the party holding, the legal title. The complainant had only the equitable title. Walker held the legal title. The final determination of the controversy, therefore, required his presence, and as the cause was not removable as to him, under the authority of Coal Company v. Blatchford,
*
it could not be removed as to Gardner alone.
Order of the Circuit Court affirmed.
*
11 Wallace, 172.
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Doctor v. Harrington, 196 U.S. 579 (U.S. 1905)
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Thayer & Another v. Life Ass'n of Am. & Others, 112 U.S. 717 (U.S. 1885)…p of the parties, the decree must be [*720] reversed, with directions — unless such, jurisdiction, upon the return of the cause, shall be made to appear — to remand the suit to the State court. Coal Co. v. Blatchford, 11 Wall. 172; Gardner v. Brown, 21 Wall. 36; Ribon v. Railroad Co., 16 Wall. 446 ; Knapp v. Railroad, 20 Wall. 117; Grace v. American Ins. Co., 109 U. S. 278; Mansfield Railway Co. v. Swan, 111 U. S. 379, 381-2; American Bible Society v. Price, 110 U. S. 61; Barney v. Latham, 103 U. S. 205 ;…
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Fid. Bond & Mortg. Co. v. Grand Lodge, 41 F.2d 326 (6th Cir. 1930)…e deed,' a copy of which is attached to and/inade a part of the bill, and holding the legal title to the property, Nashville Trust Company was a' necessary party to so much of the suit as sought foreclosure. Gardner v. Brown, 21 Wall. (88 U. S.) 36, 22 L. Ed. 527; Susquehanna & W. V. R. & Coal Co. v. Blatchford, 11 Wall. (78 U. S.) 172, 20 L. Ed. 179; Thayer v. Life Ass’n, 112 U. S. 717, 5 S. Ct. 355, 28 L. Ed. 864; Shipp v. Williams, 62 F. 4 (6 C. C. A.). The bill alleged possession of the premises and r…
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