Page:Federal Reporter, 1st Series, Volume 10.djvu/325

EVANS V. FAXON. 313 �was only a nominal party. A motion is now made to remand the case on the ground that the trustee is a necessary party, and, being a citizen of the same state as the plaintiff, it was not subject to removal. �If the trustee is only a nominal party the case could be removed imcler the twelfth section of the act of 1879, because the plaintiff is a citizen of Illinois, and the Faxons are citizens of Massachusetts; but if the trustee is a necessary party to the litigation, then the cause could only be removed under the last clause of the second section of the act of 1875. �Under our law the trustee was clothed with the legal title to the land. The bill seeks to redeem the land, and so to revest the title in the grantor. �There are two questions in the case as made by the bill. The first is whether the trustee duly executed the power by the sale of the property. The second is whether the plaintiff has the right to redeem the land. As the bill attacks the sale made by the trustee and asks that it be set aside, and makes the trustee a defendant, it would seem as though that was a controversy to which the trustee was a party, and that he would necessarily have the right to defend his action, and to show that the power was duly executed. It is said that the trustee being clothed with only the legal title, and having sold the land to Edwin Faxon, the title has passed to him by the sale, although the trustee may not have properly executed the power con- tained in the deed. And it is further insisted that Edwin Faxon stands in the place of the trustee ; and as the rule is that whoever pur- chases land which a trustee sells under a power contained in a deed is bound to see that the trustee duly executes the power, therefore he is in the same position as the original trustee, clothed simply with a legal title. To a great extent this is perhaps true, because it is clear, if the power has not been duly executed, the purchaser has not acquired a good title to the land ; but still it is also true that whether Harvey properly executed the power is a controversy in which he is interested, and which is invoived in this suit. He sold the property to Edwin Faxon for $2,400. The necessary inference from the plead- ings is that the money was paid to him by the purchaser, and if the sale is set aside because of a non-execution of the power by him as trustee, he would be responsible to the purchaser for the money re- ceived from him ; and if this case should proeeed to decree with Har- vey as a party, and the court should find, and so decree, that the power was not properly executed, that would bind Harvey in any pro- ceeding which might be instituted on the part of the purchaser ��� �