Where the supreme court of a state decides against the plaintiff
in error on an independent ground not involving a federal question
and broad enough to maintain the judgment, the writ of error will
be dismissed by this Court without considering the federal
In this case, the supreme court of the state held that the law
was not changed by an isolated decision made by it, because such
decision was an erroneous declaration of what was the law, and on
that view, this Court held that no federal question was presented
by the record, and the writ of error was dismissed.
The case is stated in the opinion.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
On the 9th of July, 1876, George W. Melton died, intestate and
insolvent, in South Carolina, leaving surviving him his widow,
Margaret A. Melton, and three infant children. John J. McLure was
appointed administrator of his estate, and commenced an action in
the Circuit Court of Chester County, South Carolina in July, 1877,
to marshal the assets of the estate, to have the real property of
the deceased sold in aid of assets, and to have the creditors of
the estate establish their demands. The creditors were called in
and numerous claims were established, among them, a note under seal
to R. G. Ratchford & Co., bearing date February 22, 1859; a
note under seal to Dr. A. P. Wylie, bearing date May 3, 1872; a
note under seal to Samuel D. Melton, bearing date February 1, 1871;
a bond secured by a mortgage on real estate to one Duvall, sheriff,
dated June 4, 1875, which had been transferred to one Kerr, as
clerk of the court of Fairfield County, South Carolina, and
Page 133 U. S. 381
a bond secured by a mortgage on real estate to Hopkins, Dwight
& Co., dated May 19, 1876. The widow and the infant children,
and various creditors of the deceased, were made defendants. The
case was referred to a special referee, who reported that the
assets of the estate could not exceed $11,000; that the amount due
on the mortgage to Duvall, sheriff, was $1,087.35, and the amount
due on the mortgage to Hopkins, Dwight & Co. was $30,748.44,
and that there were debts on sealed notes and specialties, dated
prior to November 25, 1873, amounting to $7,005.04, and debts on
simple contracts amounting to $36,415.98, the total of the three
classes of debts being $75,256.81. The special referee reported
that, after the payment of the costs, the assets were applicable
first to the satisfaction of the bond and mortgage to Duvall,
sheriff, and next to the bond and mortgage to Hopkins, Dwight &
Co. Exceptions were filed by various creditors to the report of the
referee, and the case was heard by the circuit court.
It appeared that the mortgage to Hopkins, Dwight & Co. had
been foreclosed by a judicial sale of the land covered by it; that
the proceeds of the sale were insufficient to pay the debt; that
the debt and the mortgage were set up as a preferred claim against
the general assets in the hands of the administrator; that the land
covered by the mortgage held by Kerr as clerk was sold, under an
order of the court, before Kerr became a party to the suit by
proving his debt and mortgage; that after that sale, Kerr, not
having obtained its proceeds, instituted proceedings to foreclose
the mortgage, obtained judgment, and sold the land, but the
proceeds of sale were insufficient to pay the mortgage debt, and
that Kerr set up the debt as a preferred one against the general
assets of the estate.
The circuit court said in its opinion that the referee held that
both of these debts were preferred claims on the authority of the
case of Edwards v. Sanders,
6 S.C. 316, and it discussed
the question whether the mortgage debt of Hopkins, Dwight & Co.
was a preferred claim after its specific lien had been exhausted,
because it was a mortgage.
Section 26 of the Act of South Carolina, which became a law
Page 133 U. S. 382
March 13, 1789, being Act No. 1,455, entitled "An act directing
the manner of granting probates of wills and letters of
administration, and for other purposes therein mentioned," 5 Stat.
S.C. 1839, p. 111, provided as follows:
"That the debts due by any testator or intestate shall be paid
by executors or administrators in the order following,
funeral and other expenses of the last sickness,
charges of probate of will, or of the letters of administration;
next, debts due to the public; next, judgments, mortgages, and
executions, the oldest first; next, rent; then, bonds or other
obligations, and lastly, debts due on open accounts. But no
preference whatever shall be given to creditors in equal degree
where there is a deficiency of assets except in the cases of
judgments, mortgages that shall be recorded from the time of
recording, and executions lodged in the sheriff's office, the
oldest of which shall be first paid, or in those cases where a
creditor may have a lien on any particular part of the estate."
This provision was construed by the constitutional court of
South Carolina, in 1822, in the case of Tunno v. Happoldt,
2 McCord 188. In that case, the deceased left an outstanding
"obligation or sealed instrument of mortgage and covenant," and
some outstanding simple contract debts. The question arose whether
that instrument was to be ranked in the legal order of payment
under the statute, among bond debts, or among simple contract
debts. The court said that the claim was by simple contract -- that
is, by a note; that the question was whether the mortgage deed
could change the character of the note, or give it a preference
over other simple contract debts under the statute; that the simple
contract debt was not changed by the mortgage, and that the deed
gave a particular lien upon certain property, but its object and
intent had terminated, and otherwise left the note as it stood
before, still a simple contract.
In Kinard v. Young,
2 Rich.Eq. 247, in the Court of
Appeals in Equity and Court of Errors of South Carolina, in 1846,
it was held that, in the administration of the assets of an
insolvent testator or intestate, mortgages, as mortgages, were not
entitled to priority over rent, specialties, and simple
Page 133 U. S. 383
debts except so far as they were liens on any particular part of
the estate, and that after the lien was exhausted, the grade of the
demand must be determined by the nature of the instrument which the
mortgage was given to secure, the court following the decision in
Tunno v. Happoldt.
The provision of the act of 1789 was incorporated in 1872 in the
Revised Statutes of South Carolina, as section 3 of chapter 90, p.
457, as follows:
"The assets which come to the hands of an executor or
administrator, after proper allowance to the executor or
administrator in a due course of administration, shall be applied
to the payment of his debts in the following order, that is to say:
1. funeral and other expenses of the last sickness, charges of
probate, or letters of administration; 2. debts due to the public;
3. judgments, mortgages, and executions, the oldest first; 4. rent;
5. bonds and debts by specialty; 6. debts by simple contract."
In 1875, the case of Edwards v. Sanders,
6 S.C. 316,
was decided by the supreme court of the state. It was held that,
under section 26 of the act of 1789, prescribing the order in which
debts of a decedent are to be paid, mortgages, whether of chattels
or real estate, rank in the third class, and are entitled to
payment out of the general estate in preference to specialty and
simple contract debts; that a purchase of the mortgaged premises,
by the mortgagee or his assignee, under a decree for foreclosure,
does not extinguish the mortgage debt for any unsatisfied balance
that may remain, and that, where the purchase is made after the
death of the mortgagor, the unsatisfied balance retains its rank as
a mortgage debt, with right to priority of payment out of the
general estate, over specialty and simple contract debts. While the
case of Edwards v. Sanders
stood as the rule of
construction, the referee in the present case held that the
mortgages in question were preferred claims. Before the case came
on to be heard upon exceptions to the report of the referee, the
case of Piester v. Piester,
22 S.C. 139, was decided, in
January, 1885, by the supreme court of the state, which held that,
under the act of 1789, a mortgage, as such, had no precedence in
the administration of the estate of a deceased person, except
Page 133 U. S. 384
to the extent of its specific lien upon the property mortgaged,
and that when such lien was exhausted the mortgage ranked according
to the grade of the demand secured by it, thus approving the case
of Kinard v. Young
and overruling that of Edwards v.
The court said:
"We think that a creditor of a decedent's estate whose claim is
secured by a mortgage on particular property has under the act a
lien upon that property; but when that is exhausted the mortgage,
as such, is functus officio,
and in further marshaling the
assets, the demand must rank according as it may be a single
contract or specialty."
The court cited the cases of Tunno v. Happoldt
Kinard v. Young,
and said that the doctrine asserted by
them was regarded as the settled construction of the act of 1789
until the case of Edwards v. Sanders.
Of that case the
court said that it
"is not only unsustained by proper rules of construction, but is
in direct opposition to the decided cases, and what was at that
time considered the settled law of the state."
The court then referred to the act of South Carolina, passed
December 14, 1878, entitled "An act to alter and amend the law in
relation to the payment of debts of a decedent," No. 548, 16 Stat.
686, which provides
"That in the administration of the assets of a decedent,
mortgages shall not be entitled to a priority over rents, debts by
specialty, or debts by simple contract, except as to the particular
parts of the estate affected by the liens of such mortgages; that
after the property covered by the liens is exhausted, the grade of
the demand shall be determined by the nature of the instrument
which the mortgage was given to secure,"
as an act which, although it was passed after the facts in the
case then at bar arose, "only declared what has been the law of the
state since the act of 1789."
After a consideration of these cases, the circuit court reached
the conclusion in the present case that the mortgages in question
came under the operation of the decision in Piester v.
and were not preferred claims as mortgages. The
decree of that court was that, the lien of the mortgages having
been exhausted, they were no longer preferred claims, and that the
debts they were given to secure could only be proved
Page 133 U. S. 385
and take rank against the assets in the hands of the
administrator according to the nature of the instrument evidencing
the debt, and the statute relating thereto. Exceptions were filed
to the decree, and the case was heard on appeal by the supreme
court of the state, which, in April, 1886, affirmed the decree of
the circuit court. 24 S.C. 559
The point was taken by the appellants in the Supreme Court of
South Carolina that the case of Piester v. Piester
not be applied to their cases for the reason that so to apply it
would impair the obligation of contracts or divest vested rights
because, at the time of the making of the contract of Hopkins,
Dwight & Co., the law, as then declared by the case of
Edwards v. Sanders,
required that the balances due on the
two debts should be ranked as mortgages, and as such be entitled to
priority over specialty debts, and that the decision in Piester
could not divest rights which became vested at the
time the intestate died, under the law as it was then declared to
But the supreme court said that the construction placed on the
provisions of the act of 1789 by the decision in Piester v.
was the same as that laid down in Tunno v.
and Kinard v. Young;
that the law stood
unquestioned down to the time of the decision in Edwards v.
that that decision did not seem to have been followed
in a single instance; that, from what was said in Piester v.
it would seem never to have been satisfactory to the
profession; that at the first opportunity, it was overruled, and
that in the meantime, the legislature, by the act of 1878, had
shown its dissatisfaction with the construction adopted in the case
of Edwards v. Sanders.
On the question whether the
decision in Piester v. Piester
effected such a change in
the law as would forbid its application to the case under
consideration, because it would impair the obligation of a contract
or divest rights vested under the law, as declared in Edwards
the supreme court said that, as the proper
construction of the statute had been settled for a long series of
years by decisions of both of the courts of final resort in the
state, in accordance with the view declared in Piester v.
it would be going very far
Page 133 U. S. 386
to say that a single isolated decision, never recognized or
followed in any subsequent case and never recommending itself to
the approval of the profession, should be regarded as having the
effect of changing the law. "On the contrary," says the court,
"whatever may be the opinions of individuals as to its
correctness, it must be regarded as an erroneous declaration of
what was the law, and as only the law of the particular case in
which it was made."
The members of the firm of Hopkins, Dwight & Co., as
successors of the former members of that firm, and the trustee of
that firm and of Mrs. Melton and her infant children, have brought
a writ of error to review the decree of the supreme court affirming
that of the circuit court, and the defendants in error now move to
dismiss the writ of error on the ground of a want of jurisdiction
in this Court. It is contended on the part of the plaintiffs in
error that the decision of the court below was based upon the
application of the act of 1878 as a valid act, affecting the
contract of the plaintiffs in error and impairing its obligation.
But the validity of that statute was not drawn in question, and the
supreme court did not pass upon it. The decree of that court does
not rest upon that statute, but upon independent grounds. The
decision rests upon a ground broad enough to cover the entire case,
without considering the statute. It rests upon the ground that the
law of South Carolina, under the act of 1789, was such as it had
always been held to be in Tunno v. Happoldt, Kinard v.
and Piester v. Piester,
and that the law as so
declared had always been the law, and was not varied or changed by
anything decided in Edwards v. Sanders.
That being so, we
must hold that no federal question is presented by the record.
This view is in accordance with the decisions of this Court in
Kreiger v. Shelby Railroad Co., 125 U. S.
; De Saussure v. Gaillard, 127 U.
, and Hale v. Akers, 132 U.
, the ruling in which cases is that where the
supreme court of a state decides a federal question in rendering a
judgment and also decides against the plaintiff in error on an
independent ground not involving a federal question and broad
Page 133 U. S. 387
to maintain the judgment, the writ of error will be dismissed
without considering the federal question.
The writ of error is