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Opinion of the court.

in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiff or petitioners, or an alien is a party, or the suit is between a citizen of the State where the suit is brought and a citizen of another State. And the Supreme Court, as early as 1806, in the case of Strawbridge v. Curtis and others, 3 Cranch Rep., 267, decided that where there are two or more joint plaintiffs or defendants, each of them must be capable of suing or being sued in the courts of the United States to give the court jurisdiction. And this doctrine has never been departed from; for in 1854, in the case of Shields and others v. Barrow, 17 Howard, 141, the Supreme Court, in speaking of the act of Congress of February 28th, 1839, which had been supposed to have altered the rule, say, that "this act does not affect any case where persons having an interest are not joined, because their citizenship is such that their joinder would defeat the jurisdiction." And the court again affirm what they had before decided in Elmendorff v. Taylor, 10 Wheaton, 167, that, "if the case may be completely decided as between the litigating parties, the circumstance that an interest exists in some other person, whom the process of the court cannot reach, as if such a party be a resident of another State, ought not to prevent a decree upon its merits. But if the case cannot be completely decided, the court should make no decree." And this seems to have been the opinion of the learned counsel for the complainant, for in July, 1859, they file a petition, stating the execution of the deed from William G. Ridgely and others to Samuel Chase Ridgely, and praying that the bill may be dismissed as to them; and by their subsequent petition, filed after the death of Samuel Chase Ridgely, they pray to make the three residents of the District of Columbia parties to the cause, as the devisees of Samuel Chase Ridgely.

Taking these facts, in connection with the written admission (to which I have referred) of the character and objects of this deed to Samuel Chase Ridgely, it shows, beyond any doubt, that the learned counsel felt that unless they could remove this difficulty they could hope for no relief in this court; for this is a bill for partition, and for an account of wharfage received by the mayor and city council of Baltimore. The complainant claims as tenant in common with the defendants. Judge Story, in his

Opinion of the court.

Treatise on Equity Pleading, section 159, says: "So tenants in common must all sue or be sued in cases touching their common rights and interests;" and as this property, of which a partition is now claimed, was made at the sole expense of the mayor and city council, if complainant had any interest therein as tenant in common with the city, in making partition the city would be allowed for all expenses of said improvement. For, says the same learned author, in vol. 1 of his treatise on Equity Jurisdiction, section 655, in speaking of a case where one party has laid out large sums in improvements on the estate, "Although, under such circumstances, the money so laid out does not in strictness constitute a lien on the estate, yet a court of equity will not grant a partition without first directing an account, and compelling the party applying for partition to make due compensation."

Now, is the question altered by the deed to Samuel Chase Ridgely of the 8th of June, 1858? It was, without consideration, made for the sole purpose of removing, if possible, this difficulty of want of jurisdiction, and with the understanding that Samuel Chase Ridgely was to reconvey the property to the said grantors whenever they requested him so to do. Now, the Supreme Court has decided that the conveyance of the interests of non-residents to give the Circuit Court jurisdiction must be real and not fictitious. For this principle, see McDonald v. Smalley and others, 1 Peters, 624; Smith and others v. Kemocher, 7 Howard, 216. In this last case the Supreme Court says: "The true and only ground of objection in all these cases is, that the assignor or grantor, as the case may be, is the real party in the suit, and the plaintiff on the record but nominal and colorable, his name being used merely for the purpose of jurisdiction. The suit is then, in fact, a controversy between the former and the defendants, notwithstanding the conveyance; and if both parties are citizens of the same State, jurisdiction, of course, cannot be upheld."

Now, the admission is, in effect, that such is the character of this deed, and that the real parties to the cause remained the same. It will not be necessary for me to notice a similar deed made by these parties since the death of Samuel Chase Ridgely to John G. Proud, Jr., as the counsel have not relied on the same, and Mr. Proud has not been made a party to the cause. But

Opinion of the court.

even if this difficulty did not exist, and the courts, from the residence of the several parties interested, had jurisdiction of the case, there is another objection to the court's passing any decree of partition or for an account of wharfage at this time. The title of complainant is disputed, and that being a question of law this court would not undertake to decide it, but its duty would be either to dismiss the bill or retain it for a reasonable time, to give the complainant an opportunity to have it decided at law. In Adams's Equity, last edition, page 519, in a note treating of partition, the rule is stated as follows: "But the title of the complainant must be undisputed, otherwise the bill will be dismissed, or else retained until the title is settled at law;" and in support of it the learned annotator refers to many authorities. In Boone v. Boone, 3 Maryland Chancery Decisions, 407, Chancellor Johnson says: "The court does not sustain a bill for partition unless the title be clear." In Strangham v. Wright, 4 Randolph, 493, the rule is given in the following language: "Where, in a bill for partition, if complainant's title is denied, and it depends upon doubtful facts or doubtful questions of law, a court of equity will either dismiss the bill or retain it until the right is decided at law." To the same point will be found the following cases: Wilkin v. Wilkin, 1 Johnson's Chancery Reports, 111; Manners v. Manners, 1 Green's Chancery Reports, 384; Burton v. Rutland, 3 Humphreys, 435; Hosford v. Merian, 5 Barbour S. C. Report, 52; and Cox v. Smith and others, 4 Johnson's Chancery Reports, 271. Now all must concede that the title of complainant depends upon doubtful questions of law. I am justified in saying this because her title has already been submitted to a court of law of her own selection, and which court decided against her, and its judgment was affirmed by the highest court of the State. I speak of the decision of Baltimore County Court in the ejectment case of Mary Barney and others, lessee, v. The Mayor and City of Baltimore and others, the record of which has been given in evidence in this case. It was an action brought to recover the identical property, of which a partition is now sought by the bill filed in this

cause.

The defendants, in the trial of the case, presented several prayers to the court. The fourth is as follows: "The defend

Opinion of the court.

ants, by their counsel, pray the court to instruct the jury that if they shall find from the evidence in the case that Samuel Chase, the elder, under whom the plaintiffs claim, made and executed and delivered the several leases and deeds offered in evidence by the defendants, and shall further find from the evidence in the case that at the time of the execution and delivery of the deed from Samuel Chase, the elder, to Samuel Chase, Jr., and Thomas Chase, no part of said street called Liffey Street was made south of the southerly line of Lee Street, and that no part of the City Block was then made, then the plaintiffs have no right in the suit to recover upon the evidence in the case any portion of Liffey Street lying south of the southerly line of Lee Street, nor any part of the property located on the City Block." On this prayer the court indorsed, "Granted, but not for the reasons therein stated, but because the plaintiffs have not shown any title to the City Block, and because, although they have shown title to Liffey Street, yet, as it is a public highway by dedication and contract with the city, ejectment will not rely to recover it."

Now, as the Court of Appeals gave no opinion in the case, we do not know whether that court sustained all or what instructions of the lower court, which were fatal to the plaintiffs' case; but this is clear, as a part of the block was not used as a highway, ejectment would have lain for that part; and the Court of Appeals must therefore have sustained the instruction of Baltimore County Court, that as to that part, the plaintiff had shown no title. Now, in this cause, we have no evidence that was not before Baltimore County Court; and if I had full jurisdiction in the case, I should feel it to be my duty to dismiss this bill, as it has been filed with full knowledge that the title of the complainant was disputed by the city, and after a court of competent jurisdiction had passed adversely upon the title to a part, if not to all of the property in question. But if the cause was free of these preliminary difficulties, from a careful investigation of the several grounds upon which the complainant's counsel have placed her claim to a share of the property in dispute, I am of the opinion that that claim cannot be sustained either at law or in equity.

Now, what are the facts of this case? Originally the waters

Opinion of the court.

of the northwest branch of the Patapsco River swept around the most western point of Fell's Point (east of where the drawbridge now stands), and first turning northeast ran until within about one hundred feet of Bond Street, thence turning northwesterly ran nearly up to Wilk Street, continuing westerly, passed on to Jones's Falls some distance above where Pratt Street now crosses that stream, and thence flowed on westwardly to some distance beyond what is now Light Street wharf. That on or about 1796, from the deposits of mud and sand brought down by Jones's Falls and deposited near its intersection with the river, the water of the basin only flowed at high water up to the south side of Pratt Street at its intersection with Liffey Street, but at low tides the ground was bare for some distance below. It was in this year that Judge Chase received his deed from Daniel Bowly for a lot of ground beginning at the intersection of the south side of Water Street with the west side of Jones's Falls, extending south on the west side of the falls to the south side of Barre Street, with a width of one hundred and seventy-three feet.

Judge Chase then being the owner in fee and riparian proprietor of this lot, fronting one hundred and seventy-three feet on the water of the basin, under permission from the mayor and city council of Baltimore, granted by ordinance passed March 23d, 1802, extended his said lot to the south side of Lee Street; and in 1804 he obtained the further permission from the corporation to extend his said lot from the south side of Lee Street south three hundred and fifty-five feet, so as to include a bar which had been made by natural causes in the river, opposite to his wharf. This last extension was never completed by Judge Chase. Judge Chase being then the proprietor of this lot binding on the west side of Jones's Falls, laid out into lots first, that part lying between Water and Pratt Streets; and subsequently, that part lying between Pratt and south side of Lee Street, and along the whole eastern fronts of the lots, he so laid out and leased, and between said front and the west side of Jones's Falls, he laid out a street or wharf, which below Pratt Street he called "Liffey Street." In his lease to James Clarke, in 1798, in describing the lot laid, he calls it "a public wharf" (forty feet wide), and the lines of the lot run to and bind on it.

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