CITY OF SEYMOUR v. FARMERS' LOAN & TRUST CO. OF NEW YORK, 128 F. 907

PER CURIAM. The action in the court below was brought by the Farmers’ Loan & Trust. Company, a citizen of New York, against the city of Seymour, a municipal corporation of Indiana, to recover rentals for city hydrants due from the city to the Seymour Water Company, also a citizen of Indiana. The suit was thus by a citizen of New York, trustee of the Seymour Water Company, a citizen of Indiana, against a municipal corporation of Indiana. On the merits of the case the judgment below was without error, and can be affirmed without discussion. The principal questions that arise relate to jurisdiction.

The plaintiff below, defendant in error here, is trustee, along with one Merrill Moores, a citizen of Indiana, under a.mortgage executed by the Seymour Water Company to secure an issue of its bonds, in which mortgage the rentals in question due the city, along with the real estate and personal property of the water company, are pledged as. security; but the trust deed contains a provision that until default iit the payment of interest the water company should remain in possession of the rentals, tolls, and revenues as fully as though the deed of trust or mortgage had not been made, and free from the control and intervention of the trustees.

If the action under review be under the authority of such mortgage and pledge, jurisdiction fails, because Moores, a citizen of Indiana, would in such case be an indispensable party. But the ordinance under which the franchise was granted provided that there should be paid to such trustee, as the grantee or his assigns may elect, the rentals in question, which rentals shall be devoted by such trustee to the payment of interest charges on the bonds.

Taking this provision of the ordinance, in connection with a certificate by the city that the Farmers’ Roan & Trust Company has been designated as such trustee, no default having occurred in the payment of interest, we are of the opinion that the trust created by the ordinance is separate from the trust created by the mortgage; from which it follows that Moores, not named in the ordinance trust, is not an indispensable party, and that the suit was rightly brought' by the Farmers’ Loan & Trust Company without joining him. The original ordinance, however, was not to the Seymour Water Company, but to Willet E.

McMillan, his heirs and assigns, McMillan subsequently assigning the same to the Seymour Water Company. The Farmers’ Loan & Trust Company, of course, derives its title from the ordinance and trust agreement between the city of Seymour and McMillan. It is insisted that the Seymour Water Company is assignee of McMillan, whose citizenship is not averred, and from this argued that jurisdiction in the federal court cannot be maintained. Without discussing this question, we are content to rest our conclüsion in favor of jurisdiction upon the authority of Superior City v. Ripley, 138 U. S. 93, 11 Sup. Ct. 288, 34 L.

Ed. 914. The judgment of the Circuit Court is .affirmed.