THOMPSON v.>mxoN. 5
at once, upon the death of Mrs. Newberry, a holder of the fund for
the purposes of the trust. He was therefore anecessary party to the
suit, as the fund could only be reached through him. If it became
and is a trust fund under the will of Miss Newberry, Johnson held it
for the benefit and use of whoever shall be adjudged entitled to it,
and had no right to recognize any power in Mrs. Julia Butler New-
berry to dispose of it as part of her general estate. It was through ·
service upon Johnson that the court reached the fund, to act upon
and dispose of it, if the bill shall be sustained. I am therefore of
opinion that the case is not a proper one for removal, and should be
remanded to the state court.
Trronrson and others v.·DIXON and others.
(Circuit Court, W D. VW8e0n8in. July 10, 1886.) _
1. Rmrovsr. or CAUSE—RELIAND—NON-RESIDENT Moivreaenm A Dnrnunnnr.
On a motion to remand to the state court from which it was removed. an
action for the foreclosure of a realestate mortgage, where the plaintiff and
the defendant, the mortgagor, are residents of the same state, and another de-
fendant a resident of another state, and a mortgagee sets up in his answer a
claim against the mortgaged property adverse to that of plaintiff, as well as
the mortgagor, the facts do not give the United States circuit court jurisdic-
tion, and the motion must be granted. Wilson v. St. Louis ch S. F Ry. Ob., 22
Fed. Rep. 3; S. C. 114 U. S. 60; 5 Sup. Ct. Rep. 738. _ ,
2. SAivts—·BAsis or- JURISDICTION. ` I ` '
The court cannot look at the contract between the non-resident mortgagee
and the mortgagor to determine the question of jurisdiction.
Orton at Osborn, for plaintiffs. i
Tenney, Basltford et Tenney, for the Home Nat. Bank of Chicago.
BUNN, J. This action is brought to foreclose a mortgage upon a
certain flouring-mill and premises, situate in La Fayette county, Wis-
consin. The plaintiffs, the mortgagees, and the defendants Dixon
and his wife, the mortgagors, all reside in Wisconsin. The defend- _
ant Saterlee Warden, who has also a mortgage on the premises, and
puts in an answer, resides in the state of Kansas. The defendant
James B. Ginn resides in the state of Illinois, and appears by an-
swer, setting up a lien by judgment rendered in the state court upon
a mechanic’s and furnisher’s lien upon the mortgaged premises sub-
sequent to the making of the mortgage. The defendant the Home
National Bank of Chicago is a corporation of Illinois, and puts in an
answer, alleging that the Gratiot Manufacturing Company, also a cor-
po1·ation of Illinois, after the making of plaintiffs’ mortgage, sold to
Dixon, the mortgagor and owner of the equity of redemption, a large
quantity of mill machinery, consisting of roller-mills, mill-wheels, and
other machinery, to be put into, and which was put into, the mill,
 `