MR. JUSTICE HARLAN delivered the opinion of the court. He recited the facts as above stated, and continued:
The trustee was not a merely nominal party. The object of the suit was to prevent him from selling the property under the power given by the deed of trust. The relief asked could not have been granted without his being before the court. There was no separable controversy between the complainants and the other defendants, touching the sale of the property, which could have been determined between them without the presence of the trustee. He was, therefore, an indispensable party defendant. Whether he had the right and was under a duty to sell the property was the controversy in which all the parties to the suit were interested. His citizenship, therefore, is material in determining whether the suit was one of which the Circuit Court could take cognizance. The record discloses nothing upon that point. He may be — and we infer from the recitals of the deed of trust that he is — a citizen of the same State with the complainants. If such be the fact, the cause was not one that could be removed. As the trustee and the complainants are on opposite sides of the real controversy in relation to the sale of the property, and since it does not appear, affirmatively, that the Circuit Court had jurisdiction, by reason of the citizenship of the parties, the decree must be
It is so ordered.