the contract was never delivered, and was never understood by either party thereto as binding. There is a conflict in the evidence as to whether the contract was signed, but it was understood by both parties that it should be acknowledged before a notary public, so that it might be entitled to record under the Michigan statutes. With this understanding one copy was left with John A. Wansey and the other was taken by McLouth to Carman, a notary public, and cashier of the bank, who, when Wansey called for it, delivered it to him. If it had been signed, and the only duty of Carman was to take the acknowledgment, it was not necessary for him to deliver it to Wansey, who could have no right to or use for it. But, if the transaction was not closed, Wansey had a right to the contract, and Carman seems to have acted on that supposition. After Carman handed the contract to Wansey, he says that Wansey took the paper, and he heard the scratching of a pen, but does not know whether he wrote or erased something; that Wansey handed him the check for $500, which McLouth had given him, and said that he had concluded "not to do that, not to make the agreement," and went out. On the following Monday McLouth was told by Carman what had happened, and he had a talk with Wansey in regard to it, who said that he did not want the contract floating around, but that after the 1st of January-before which time he did not wish Davidson to know anything about it-he would settle it up. Two weeks after that the fire occurred, and McLouth, who was in New York, informed the complainant of it the next day. He returned home about the 15th of October, and talked to Wansey about the fire, in which conversation Wansey said that he did not think White would take the plant now; and McLouth not only failed to inform him that he would, but testified that he did not then know that he would. It is clear that, if Wansey at that time had insisted on McLouth taking the deed and paying the money, he would have refused to carry out the agreement. Wansey told McLouth that he was sorry he had not closed the transaction when he had a chance to get $25,000 in cash and make the deal, and McLouth did not tell him that he considered that the deal had already been made, and that White was bound to carry it out. Wansey made his new arrangement with Davidson, and commenced rebuilding the plant; and not until after his death did either McLouth or the complainant intimate that he considered the contract which had been entered into binding, although it had not been acknowledged as agreed. It seems too plain for controversy that McLouth and Wansey both considered the acknowledgment a necessary step before the contract should become binding, and, when Wansey declined to acknowledge it, and returned the check, McLouth and the complainant, as well as Wansey, acted until after Wansey's death on the basis that no contract had been made. Although McLouth saw Wansey every day, and knew that Wansey was regretting the fact that he had not closed the transaction with White, no intimation was made to him that the transaction was closed, and that he could collect the purchase price notwithstanding the disastrous fire. Certainly Wansey acted on the supposition that the acknowledgment of the contract was necessary before it could become binding upon him, and there is no evidence in the case which indicates that McLouth was not of the same opinion. If the question of the execution of this contract is doubtful, specific performance ought not to be enforced. In Colson v. Thompson, 2 Wheat. 341, 4 L. Ed. 253, the supreme court says: "The contract which is sought to be specifically executed ought not only to be proved, but the terms of it should be so precise as that neither party could reasonably misunderstand them. If the contract be vague or uncertain, or the evidence to establish it be insufficient, a court of equity will not exercise its extraordinary jurisdiction to enforce it, but will leave the party to his legal remedy." In Hennessey v. Woolworth, 128 U. S. 442, 9 Sup. Ct. 111, 32 L. Ed. 500, where the specific performance of a contract was sought to be enforced, Justice Harlan, announcing the opinion of the court, says: "Specific performance is not of absolute right. It rests entirely in judicial discretion, exercised, it is true, according to the settled principles of equity, and not arbitrarily or capriciously, yet always with reference to the facts of the particular case. The question in cases of specific performance, Lord Eldon said, is not what the court must do, but what, under the circumstances, it may do, in the exercise of its discretion to grant or withhold relief of that character. It should never be granted unless the terms of the agreement sought to be enforced are clearly proven, or where it is left in doubt whether the party against whom relief is asked in fact made such an agreement." The court in the latter case thought it doubtful, under the conflicting evidence, whether a contract had been signed, and hence refused. specific performance. In Dalzell v. Manufacturing Co., 149 U. S. 315, 13 Sup. Ct. 886, 37 L. Ed. 749, the supreme court cited with approval, among other cases, Hennessey v. Woolworth, supra, and held that specific performance will not be decreed in equity without clear and satisfactory proof of the contract set forth in the bill. In De Sollar v. Hanscome, 158 U. S. 222, 15 Sup. Ct. 818, 39 L. Ed. 956, the court says: "Where the existence of a contract is a matter of doubt, equity will not, as a rule, decree specific performance; especially in a case like this, where, as appears, the property was rapidly rising in value." 4. We think the evidence in this case did not warrant the court in finding that the contract was finally executed and delivered; but, if it had, and Wansey had endeavored to recede from it in the manner indicated by the testimony, the complainant, knowing all the facts, could not, in equity, have apparently acquiesced, and, by his actions, allowed Wansey to understand that he would not enforce the contract, and thus induce him to form a new partnership with Davidson, buy material for a new plant, wait until after Wansey died, and then insist on the performance of the contract. The condition of the property and the position of the parties have so changed that a decree for specific performance would be inequitable, and therefore ought not to be made. The decree of the circuit court dismissing the bill is affirmed. (116 Fed. 471.) GERMAN SAVINGS & LOAN SOC. v. DORMITZER et al. No. 780. 1. REMOVAL OF CAUSES-JURISDICTION-ESTOPPEL. One by having case removed from state to federal court is not estopped from raising question of jurisdiction, on it appearing there was nothing to confer it on the federal court. 2. SAME DIVERSE CITIZENSHIP. Diverse citizenship authorizing removal of cause from state to federal court must exist at time suit is begun, as well as at time of removal, and must be made to appear. 3. SAME PETITION. Petition by one only of the defendants for removal of cause from state to federal court is insufficient. 4. SAME-SEPARABLE CONTROVERSY. There is not a separable controversy between plaintiffs and defendant bank, justifying removal of cause from state to federal court on the ground of separate controversy between citizens of different states, the complaint alleging that plaintiffs being minors, and owning land in common with defendant T., defendants fraudulently procured a sale to be made and ratified by the probate court of plaintiffs' interest to defendant T., to be for cash, but in which no payment was made; that defendant T. then gave defendant bank a mortgage; that defendants had ever since been in possession; that afterwards a decree was obtained adjudg ing the probate proceedings void, and plaintiffs owners of an undivided half, and the prayer being for an accounting, a partition, and a lien on defendants' interest for rents and profits. Appeal from the Circuit Court of the United States for the Eastern Division of the District of Washington. Struve, Allen, Hughes & McMicken, Happy & Hindman, and W. S. Goodfellow, for appellant. Lucius B. Nash, Lucius G. Nash, James Dawson, and Frederick W. Dewart, for appellees. Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge. ROSS, Circuit Judge. This suit was commenced in a state court of Washington, from which, on the petition of the appellant, it was transferred to the circuit court of the United States for the district of Washington, in which court it was tried on its merits, and a decree entered therein, from which decree the German Savings & Loan Society took and was allowed an appeal. Upon the calling of the case for argument in this court, counsel for the appellant announced that they had just discovered that the suit was improperly removed from the state court, and that the circuit court had not, nor has this court, any jurisdiction over it, for the reason that the case presented no separable controversy, nor did such diverse citizenship exist as would confer jurisdiction upon the federal court. As the case 4. Separable controversy as ground for removal of cause to federal court, see notes to Robbins v. Ellenbogen, 18 C. C. A. 86; Mecke v. Mineral Co., 35 C. C. A. 155. was removed from the state court upon the petition of the appellant, it is insisted on the part of the appellees that it is estopped from now raising the question of jurisdiction; counsel relying largely upon the following clause of the opinion of the supreme court in the case of Cowley v. Railroad Co., 159 U. S. 569, 583, 16 Sup. Ct. 127, 40 L. Ed. 263: "The case having been removed to the circuit court upon petition of defendant, it does not lie in its mouth to claim that such court has no jurisdiction of the case, unless the court from which it was removed had no jurisdiction." This language must be read in connection with the facts of the case about which the court was speaking. It is never permissible to select certain sentences or paragraphs of an opinion, detach them from their context, and give them universal application. In the case of Railroad Co. v. Swan, 111 U. S. 379, 4 Sup. Ct. 510, 28 L. Ed. 462, and in other cases there cited, the supreme court declared the rule to be inflexible and without exception that the judicial power of the United States cannot be exerted in a case to which it does not extend, even if both parties desire it to be exerted; and that the court "must, of its own motion, deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act. 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." See, also, Craswell v. Belanger, 6 C. C. A. 1, 56 Fed. 529, and numerous cases there cited. We do not think that the supreme court had any intention of changing this long and well-established rule by the concluding clause of its opinion in the case of Cowley v. Northern Pacific Railroad Company, above quoted. There are, therefore, but two questions for consideration on this motion; that is to say, whether the requisite diverse citizenship or the requisite separable controversy existed to confer jurisdiction on the United States circuit court. And, in respect to the first, the law is that the difference of citizenship, on which the right of removal depends, must have existed at the time when the suit was begun, as well as at the time of removal. Gibson v. Bruce, 108 U. S. 561, 2 Sup. Ct. 873, 27 L. Ed. 825; Railroad Co. v. Swan, supra. In neither the complaint filed in the state court nor in the petition presented by the German Savings & Loan Society for its removal to the federal court did it appear of what state were the plaintiffs'Dora May Dormitzer or William L. Tull citizens, and as, according to the uniform decisions of the federal courts upon this point, the jurisdiction of the circuit court fails unless the necessary citizenship is made to appear, the presumption is necessarily against it. Grace v. Insurance Co., 109 U. S. 278, 283, 3 Sup. Ct. 207, 27 L. Ed. 932; Robertson v. Cease, 97 U. S. 646, 24 L. Ed. 1057; Railroad Co. v. Swan, and Craswell v. Belanger, supra. It is true that, prior to the filing of the petition for the removal of the suit, the court had, on motion of the plaintiffs Dormitzer and Tull, and against the protest of their coplaintiffs, made and entered an order dismissing them from the suit; but their coplaintiffs thereupon made a motion that the order be vacated and set aside, which latter motion, the record shows, was pending and undetermined in the state court at the time of the petition for and transfer of the cause to the circuit court, and was by that court subsequently granted. They were never, therefore, finally dismissed as parties plaintiff. Moreover, the petition for the transfer of the suit was only made by one of the defendants thereto,-the German Savings & Loan Society,-which is insufficient. Railroad Co. v. Martin, 178 U. S. 245, 248, 20 Sup. Ct. 854, 44 L. Ed. 1055; Yarnell v. Felton, 102 Fed. 369, 370, and cases there cited. The contention on the part of the appellees that the defendants Francis M. Tull and Ernest B. Tull were nominal defendants only cannot be sustained, for the reason hereinafter stated. Jurisdiction in the circuit court over the suit cannot, therefore, be sustained on the ground of diverse citizenship of the parties, and, as a matter of fact, the removal was not sought on that ground. The petition proceeded upon the ground that there was a separable controversy, but an examination of the complaint very clearly shows that there was nothing of the kind in the case. In order to justify a removal on the ground of a separate controversy between citizens of different states, said the supreme court in Torrence v. Shedd, 144 U. S. 530, 12 Sup. Ct. 727, 36 L. Ed. 528, "there must, by the very terms of the statute, be a controversy 'which can be fully determined as between them'; and by the settled construction of this section, the whole subject-matter of the statute must be capable of being finally determined as between them, and complete relief afforded as to the separate cause of action, without the presence of others originally made parties to the suit." There are many decisions of the supreme court to the same effect, a number of which are cited in the opinion from which the above quotation is taken, and in the opinion of this court in the case of Craswell v. Belanger, supra. The important allegations of the complaint in the suit under consideration are the following: That the defendant Francis M. Tull and one Lucy A. Tull were husband and wife on the 18th of July, 1888, and were then seised in fee of certain community property situated in the city and county of Spokane, Wash., and specifically described in the complaint, on which day Lucy A. Tull died, leaving surviving her husband, the defendant Francis M. Tull, and three children, issue of herself and her said husband, namely, the plaintiff Dora May Dormitzer, intermarried with one Paul Dormitzer, the plaintiff William M. Tull, and the defendant Ernest B. Tull; that these children were the only issue of Lucy A. Tull, and at the time of her death all of them were minors; that they inherited their mother's undivided one-half of the property mentioned, and thereupon became seised in fee of the undivided half thereof, share and share alike, and that their father, the defendant Francis M. Tull, remained the owner in fee of the other undivided one-half of the property; that shortly after the death of Lucy A. Tull, the defendants German Savings & 53 C.C.A.-41 |