Where, in an action pending in a state court, two grounds of
defense are interposed, each broad enough to defeat a recovery and
only one of them involves a federal question, and judgment passes
for the defendant, the record must show, in order to justify a writ
of error from this Court, that the judgment was rested upon the
disposition of the federal question, and if this does not
affirmatively appear, the writ of error will be dismissed unless
the defense which does not involve a federal question is so
palpably unfounded that it cannot be presumed to have been
entertained by the state court.
This was a bill filed in the Chancery Court of Shelby County,
Tennessee, on October 28, 1885, by John Johnson against Thomas L.
Risk, L. Tiff Risk, John D. Milburn, H. C. Warriner, Eben L. Risk,
a minor, and his guardian, Alice H. Risk, all residing in Shelby
County, and Frank L. Duncan and Jennie, his wife, residing in
Cincinnati, Ohio. The bill averred that the complainant and one E.
F. Risk, since deceased, were co-partners in the City of Memphis,
under the styles of Johnson, Risk & Co., and Risk &
Johnson, doing a foundry and also a mercantile business, and that
on the first day of February, 1875, the firms were dissolved, and,
for $10,000 paid to complainant, he sold and conveyed to Risk his
undivided half of the real estate, and also his interest in the
machinery, tools, and stock of every kind belonging to said firms,
reserving their bills receivable, book accounts, and debts due
them, which were to remain the joint property of Risk and
complainant, but were to be collected by Risk and by him accounted
for to complainant, in the proportion of one-half to complainant,
and the other to Risk, "in the manner set forth in the deed of
bargain and sale executed at the time, and a copy of which is filed
with and is a part of this bill, and marked
Exhibit A.'" It was
further averred that
"one condition of the said sale was that the said E. F. Risk
assumed
Page 137 U. S. 301
the payment of each and all the debts and liabilities of every
kind whatever of each and both of the said firms of Johnson, Risk
& Co. and Risk & Johnson, and bound and obligated himself
to pay the same and protect and keep the said Johnson harmless from
the payment of any part thereof."
The bill then stated that among the liabilities of the firms so
assumed by Risk was one to his son L. Tiff Risk, who declined to
sue his father for the debt, notwithstanding he knew of the
contract "by which his father had gotten all the assets of the said
firms, and had agreed to pay all their debts and liabilities," but
brought suit therefor against the complainant alone in the Circuit
Court of Shelby County, and recovered a judgment therein, April 22,
1878, for $1,260.87, and costs; that E. F. Risk never at any time
paid any part of this judgment, and on the 27th of August, 1885,
the complainant paid L. Tiff Risk $1,000 in satisfaction thereof,
by giving him his note for $150 due at four months, and another of
the same date for $850 due at six months, with endorsers, and that
no part of said sum had been repaid complainant, but the whole
remained due and unpaid. Complainant further stated that on the
11th of July, 1878, E. F. Risk filed his petition in bankruptcy in
the District Court of the United States for the District of West
Tennessee, under and in compliance with the act of Congress,
entitled "An act to establish a uniform system of bankruptcy
throughout the United States," approved on the 3d day of March,
1867, and in such petition asked to be discharged from all his
debts and liabilities then existing; that subsequently, on the 20th
of December, 1878, a discharge was granted him by the court
aforesaid, in manner and form as declared in said act; that E. F.
Risk died intestate in Shelby County, Tennessee, on the 20th of
June, 1882, without ever having paid any part of the debt to L.
Tiff Risk, on which the latter had recovered judgment against
complainant; that on the 27th of June, 1882, letters of
administration on his estate were granted by the Probate Court of
Shelby County to the defendant Thomas L. Risk, who was qualified
and became the administrator and executed a bond as such,
conditioned according to law, with the defendants, John D. Milburn
and
Page 137 U. S. 302
L. Tiff Risk as his sureties; that the administrator, on the
21st of August, 1882, filed an inventory of the assets of the
estate, showing certain cash on hand, and giving a list of personal
property on which no value was set; that, on the 27th of September,
1882, the said Thomas L. Risk, as such administrator, filed in the
probate court his final settlement of the estate of E. F. Risk,
without giving the prescribed statutory notice to creditors and
others interested in said estate, and that on the same day an order
was entered confirming the settlement and discharging Thomas L.
Risk as administrator, canceling his bond, and releasing his
sureties from further liability. Upon this settlement, it was shown
by the administrator that the personalty had been disposed of and
that the whole amount with which he should be charged was
$1,028.49, and he also showed the debts paid, the expenses of
administration, and the sum remaining for distribution, and
credited himself with the sums paid the distributees of E. F. Risk,
deceased, being as follows: to Mrs. Jennie Duncan, to L. Tiff Risk,
to Alice H. Risk as guardian of Eben L. Risk, grandson of E. F.
Rish, deceased, and himself, $202.56 each.
Complainant averred that Thomas L. Risk made the payments to the
distributees without taking any refunding bond as required by the
statute, and in his own wrong and without the authority of law, and
that he and his sureties on his administration bond are now liable
to complainant on account of the matters set out in the bill for
the full amount of said payments and interest thereon until paid.
Complainant further showed that on December 1, 1883, Thomas L. Risk
was appointed by the probate court administrator
de bonis
non of the estate of E. F. Risk, deceased, and at that time
gave a bond as such administrator, with defendants L. Tiff Risk and
H. C. Warriner as sureties, and thereupon qualified and had since
continued to be such administrator, but had filed no inventory of
the assets of said estate since his appointment, and had taken no
steps in the administration, so far as the complainant knew or
believed.
The bill then proceeded:
"Upon the state of facts aforesaid, the plaintiff submits that
the discharge in bankruptcy of the
Page 137 U. S. 303
said E. F. Risk did not discharge him or his assets from
liability to the plaintiff on the contract of indemnity, a copy of
which is marked 'Exhibit A,' and a part of this bill, but such
liability remains upon his estate, and the said Thomas L. Risk, as
administrator thereof, personally, as if no discharge in bankruptcy
had been granted, and the plaintiff further submits that the said
distributees to whom the said Thomas L. Risk distributed the sums
aforesaid in the manner aforesaid, to-wit, [naming them], are
liable, and are bound by law to refund and pay the said sums so
distributed to them respectively in order that the same may be
applied toward the payment of the demand herein set up by the
plaintiff against the estate of the said E. F. Risk, deceased, and
the said Thomas L. Risk, as administrator."
The bill prayed process, and that on the final hearing
complainant might have a decree against the defendants and each of
them, or such of them as were liable, jointly or severally, for the
sums they respectively owed him, and for general relief.
Exhibit A attached to the bill bore date February, 1, 1875, and
recited that in consideration of $10,000, the receipt of which was
thereby acknowledged, and the further consideration thereinafter
mentioned, Johnson had that day bargained, sold, and conveyed to E.
F. Risk his undivided half or moiety of a certain parcel of land as
described (upon which the firm's foundry building was located),
together with all the tools and machinery or every sort and kind
whatever, then on said lot or in said foundry, and then
continued:
"This instrument further witnesseth that the firms of Johnson,
Risk & Co. and of Risk & Johnson are this day dissolved,
the said Johnson selling all his interest in the machinery, tools,
and stock of every kind on hand belonging to both firms, to the
said E. F. Risk, and part of the consideration for said sale and
the above conveyance is that the said Risk assumes payment of each
and all the debts and liabilities of every kind whatsoever of each
and both of said firms, and binds and obligates himself to pay the
same and protect and keep said Johnson harmless from the payment of
any part thereof,"
and it is then provided that the bills receivable, etc., shall
be
Page 137 U. S. 304
collected by E. F. Risk, and divided as fast as practicable
between himself and Johnson, less necessary costs and charges,
one-half to each; that $150 shall be paid to Johnson in cash at the
end of each and every month, and whenever the monthly collections
amount to $1,000 or more in excess of the monthly payment of $150
to Johnson and a like amount retained by Risk, then Risk was to
execute his note to Johnson for one-half of said collections,
payable eight months after date, with interest. It was further
provided that Johnson should retain a lien upon the real estate and
machinery conveyed, Risk acknowledging the same,
"together with a lien equal to and like a mortgage upon his
other undivided half of said foundry property, both land and
machinery, to secure to Johnson the faithful performance of the
undertaking herein made by the said Risk, which are that he will
pay over to Johnson at the end of each month $150, one-half of all
other collections eight months after they are made, with interest
thereon at eight percent per annum, and pay all the debts
outstanding owing by the said two firms or either of them."
And
"in the event that Johnson should have to pay any of said debts
or be sued thereon, or should not be paid his half of the
collections made as stipulated above, then he may proceed forthwith
to enforce the liens herein retained and granted by proper
proceeding therefor."
To this bill Thomas L. Risk in his own right and as
administrator
de bonis non of E. F. Risk, deceased, John
D. Milburn, and H. C. Warriner demurred, assigning as grounds that
E. F. Risk was released from the debt sued for by his discharge in
bankruptcy, granted on the 20th of December, 1878, on his petition
in bankruptcy filed on the 11th of July 1878, and also that the
supposed cause of action was barred by the statute of limitations
of two years and six months from the grant of letters of
administration, June 27, 1882, and also that the cause of action
did not accrue within six years next before the bringing of the
suit, and was therefore barred, and a special ground as to
Warriner. L. Tiff Risk filed his separate demurrer assigning the
same causes. The chancellor sustained the demurrers and dismissed
the bill, and complainant
Page 137 U. S. 305
prayed an appeal to the supreme court of the state, which, on
the 28th of April, 1887, affirmed the decree. Complainant then sued
out this writ of error.
The following are sections of the Code of Tennessee of 1884, the
numbers being given of that and the preceding edition:
"3087-2249. That all creditors may be duly apprised of the death
of any person indebted to them, the executor or administrator of
the deceased shall, within two months after qualification,
advertise at the courthouse of the county where the deceased
usually dwelt at the time of his death, and other public places in
the county, for all persons to bring to him their accounts and
demands."
"3112-2274. Executors and administrators shall have six months
from the date of their qualification to ascertain the situation of
the deceased's estate, and to arrange and settle it, without being
liable to suit and cost, and all suits commenced within that period
may be abated and dismissed at the plaintiff's cost except suits
brought by sureties of the deceased, which may be brought without
delay."
"3117-2279. The creditors of deceased persons, if they reside
within this state, shall, within two years, and if without, shall
within three years, from the qualification of the executor or
administrator, exhibit to them their accounts, debts, and claims,
and make demand and bring suit for the recovery thereof, or be
forever barred in law and equity."
"3222-2377. Creditors whose debts are not due shall be under the
same obligation to present their claims as those whose debts are
due, and, upon failure to do so, shall be barred in like manner,
but a creditor shall not be bound to present his claim before due,
except where the estate is represented to be insolvent as herein
provided."
"3454-2760. The time between the death of a person and the grant
of letters testamentary, or of administration on his estate, not
exceeding six months, and the six months within which a personal
representative is exempt from suit, is not to be taken as a part of
the time limited for commencing actions which lie against the
personal representative."
"3466-2769. All civil actions, other than those for causes
Page 137 U. S. 306
embraced in the foregoing article, shall be commenced after the
cause of action has accrued, within the periods prescribed in this
chapter, unless otherwise expressly provided."
"3472-2775. Actions for the use and occupation of land, and for
rent; actions against the sureties of guardians, executors and
administrators, sheriffs, clerks, and other public officers, for
nonfeasance, misfeasance, and malfeasance in office; actions on
contracts not otherwise expressly provided for, within six years
after the cause of action accrued."
"3481-2784. Actions against the personal representatives of a
deceased person shall be commenced by a resident of the state
within two years, and by a nonresident within three years, after
the qualification of the personal representative, if the cause of
action accrued in the lifetime of the deceased, or, otherwise, from
the time the cause of action accrued."
MR. CHIEF JUSTICE FULLER, after stating the facts as above,
delivered the opinion of the Court.
The defendant below demurred upon two general grounds, one of
which involved the construction of the provisions of the Bankrupt
Act of March 2, 1867, and the other, the bar of the statutes of
limitation of the State of Tennessee. So far as we are advised, no
opinion was given by the Supreme Court of that state upon rendering
the judgment of affirmance, and the record discloses no specific
statement of the ground upon which the court proceeded. Inasmuch as
one of the defenses called for the construction and application of
a state statute in a matter purely local, in respect to which great
weight, if not conclusive effect, should be given to the decisions
of the highest court of the state,
Gormley v. Clark,
134 U. S. 338,
134 U. S. 348,
the plaintiff in error, if he wished to claim that this cause
was
Page 137 U. S. 307
disposed of by the decision of a federal question, should have
obtained the certificate of the supreme court to that effect, or
the assertion in the judgment that such was the fact.
In
De Saussure v. Gaillard, 127 U.
S. 216, the general rule is stated that to give this
Court jurisdiction of a writ of error to a state court,
"it must appear affirmatively, not only that a federal question
was presented for decision to the highest court of the state having
jurisdiction, but that its decision was necessary to the
determination of the cause, and that it was actually decided, or
that the judgment as rendered could not have been given without
deciding it."
Where there is a federal question, but the case may have been
disposed of on some other independent ground and it does not appear
on which of the two grounds the judgment was based, then if the
independent ground was not a good and valid one, sufficient of
itself to sustain the judgment, this Court will taken jurisdiction
of the case, because, when put to inference as to what points the
state court decided, we ought not to assume that it proceeded on
ground clearly untenable.
Klinger v.
Missouri, 13 Wall. 257. But where a defense is
distinctly made resting on local statutes, we should not, in order
to reach a federal question, resort to critical conjecture as to
the action of the court in the disposition of such defense. Was the
defense of the statute of limitations so palpably unfounded that we
must presume that the state court overruled it? The decisions of
the Supreme Court of Tennessee seem to establish, as to the
sections of the Code of that state given above, that section 3117
relates to demands arising against deceased persons in their
lifetime, and applies alike to solvent and insolvent estates,
Brown v. Porter, 7 Humphreys 373;
Miller v.
Taylor, 6 Heiskell 465; that under section 3481, where the
estate is solvent, the statute of limitations does not begin to run
until the demand falls due or right of action accrues,
Trott v.
West, 9 Yerger 433;
Hearn v. Roberts, 9 Lea 365; that
the omission of the advertisement for claims prescribed by section
3087 does not prevent the running of the
Page 137 U. S. 308
statute,
Todd v. Wright, 12 Heiskell 442; that under
section 3454, construed with section 3117, the resident creditor
has two years and a half after qualification of the personal
representative in which to sue on demands not barred by the general
statute,
Maynard v. May, 2 Coldwell 44;
Todd v.
Wright, 12 Heiskell 442; and that when the general statute has
commenced to run in the debtor's lifetime, death suspends its
operation for not exceeding six months after that event and prior
to the grant of letters testamentary or of administration, and suit
cannot be commenced against the administrator for the six months
following such grant,
Bright v. Moore, 87 Tenn. 186;
Boyd v. Lee, 12 Lea 77.
The bill counted upon the liability of E. F. Risk under the
agreement attached as an exhibit, and not otherwise. By that
agreement, Risk contracted to pay all the debts and liabilities of
every kind of the firms, to assume the liabilities, and to save
Johnson harmless. This was broken by a failure to pay the parties
to whom the firms were liable, and it was not necessary to a breach
that Johnson should show that he had first paid those parties. It
was not an agreement merely to indemnify Johnson from damage, but
to assume the indebtedness and discharge him from liability.
Mills v. Dow's Administrator, 133 U.
S. 423,
133 U. S. 432;
Wicker v.
Hoppock, 6 Wall. 94;
Locke v. Homer, 131
Mass. 93. In the latter case, MR. JUSTICE GRAY, then Chief Justice
of Massachusetts, reviews the authorities, and cites, among others,
Robinson v. Robinson, 24 L.T.Rep. 112. There, by an
indenture of dissolution of a partnership between the plaintiff and
defendant, the defendant, to whom all the partnership property was
transferred, covenanted to pay and satisfy, within eighteen months,
all the debts of the partnership, and also to indemnify and save
harmless the plaintiff against all costs, losses, charges, damages,
claims, and demands which he might incur or become liable to in
respect to the partnership debts. In an action on the defendant's
covenant to pay the debts of the partnership, Lord Campbell and
Justices Wightman and Erle held that the measure of damages was the
whole amount of the debts which he had not paid, whether they had
been paid by the plaintiff or he had given
Page 137 U. S. 309
promissory notes for them or not. The ruling of the Supreme
Court of Tennessee in
Gray v. Williams, 9 Humphreys 502,
505, is to the same effect.
See also Atkins v. Scarborough's
Administrator, 9 Humphreys 517.
This bill does not show when the debt to L. Tiff Risk became
due, nor when suit for its recovery was commenced against Johnson,
but it was, of course, prior to April 22, 1878, when judgment was
recovered. The contract of E. F. Risk had therefore been broken
prior to that time, and this action was commenced on the 28th of
October, 1885, more than seven years and six months after the
breach, and more than three years and four months after June 27,
1882, the date of the letters of administration to Thomas L. Risk.
Johnson was a resident of Tennessee, and should have exhibited his
claim to the administrator and commenced his action within 2 1/2
years after the letters were issued. Moreover, the cause of action
on the agreement would have been barred as early as April 22, 1884,
against E. F. Risk, if he had lived, and, so far as his death
operated to give further time, that had also expired. Inasmuch,
therefore, as if the supreme court of the state had sustained the
defense of the statutes of limitation, we cannot perceive that such
decision would have been erroneous, it does not appear that the
judgment, as rendered, could not have been given without deciding
the federal question, or that its decision was necessary to the
determination of the cause, and that it was actually decided.
The writ of error must therefore be
Dismissed.