Duncan research files of
1830 Bibb Co. AL Census Pg.168 Wilson Dunkin 1001,001 - 0001,01 (MAD: Nelson Duncan) Richard H. Dunkin 3100,2 - 0110,01 (MAD: 1850 Marion Co. AL census; see also Lowndes Co. AL) 1840 Bibb Co. AL Census Pg.119 Nelson Dunkin 1010,0001 - 0100,01
1850 Bibb Co. AL Census (MAD: ages as given)
Pg.19, #252, Robert STACY 56 SC farmer $2500
Edith 31 SC
Hopkins (m) 23 AL laborer
Irvin (m) 17 AL laborer
Albert 13, Noah 6 AL
Milton 5, Marion (m) 4 AL
Albetha (f) 15, Lucretia 1 AL
Absolum DUNCAN 25 SC laborer
(MAD: Absolum L. Duncan mar. Mary E. Gillum 12/16/1850)
1860 Bibb Co. AL Census
E.side Cahaba River
Pg.818, #1182-1174, Seaborn JONES 31 AL farmer $2000-$5000
Ann 17 AL
Bluford 1 AL
Nancy "10" AL
Jerry DUNAM 44 AL farmer $500-$500
Malinda 40 AL
Mary 18, John 17, Jane 13 AL
William 11, John D. 9, Mahala 7 AL
Jerry 5, Margaret 3, Martha 1 AL
Sarah THOMPSON 85 SC
Susan 32 AL
William 10, Sarah 7, Lavina 4 AL
1870 Bibb Co. AL Census
Pg.233, #121-121, CAFFEY, Ben 40 AL (white) farmer $0-$0
Mary 27 TN housekeeping
Mary 14, Marion (m) 12 AL
Virginia (f) 9, Lizzie 1 AL
Mealy (f) AL BLACK domestic servant
DUNKIN, Nancy 23 TN MUL domestic servant
CAFFEY, Jack 12 AL BLACK farm laborer
Samson (f) 8 AL BLACK
Wilson (m) 4 AL BLACK
Bibb Co. AL Deeds and Indexes, general, direct and indirect, v.1 1824-1889 (FHL film 1,617,363 item 1 and 3)
No Duncan Grantors indexed
B-80: 27 Dec. 1833, Howell (X) Johnson and wife Sarah (X) to Richard H. Duncan, $150, 15 acres, two parts of SW parts of fractional Sec. 11 Twp 22 R9E, adj. said Duncan's 1/2 quarter of land in frac. Sec. 14. (FHL film 1,617,363)
B-86: 9 Aug. 1834, Samuel (X) Barrentine and wife Mary (X) to Richard H. Duncan, both Bibb Co. AL, $50, half the fraction of the NW 1/4 East of Cahaba River of Sec. 14, Twp 22 R9, 35 acres. (FHL film 1,617,363)
B-96: 5 Nov. 1833, Jonathan Potts and wife Cynthea to Richard H. Duncan, $350, 35 acres of NW 1/4 E. of Cahaba River of Sec. 14, Twp 22, Range 9, containing 70-16/100 acres. Wit. Geo. D. Fant. Recorded 16 Nov. 1834. (FHL film 1,617,363)
No others through at least 1850.
Bibb Co. AL Probate Records
Card Index (FHL film 1,031,264-2)
Duncan, Wiley - Admr. Records "D" 1830-38, pgs. 180, 189
(Admr. Records not filmed)
Vol. A, 1834-39, part 1 - no Duncan (FHL film 1,031,264 item 3)
Vol. B, part 2 - no Duncan (FHL film 1,031,262-1)
"Index Book A, Minutes" - no Duncan (FHL book 976.182 S2b)
Bibb Co. AL Administrators Records
Admin. Records v.D, 1830-1838 (FHL film 1,617,355 item 2)
D-180: Bond, 7 Oct. 1834, by Samuel Lewis, sec. James Lewis and Lawrence Owings, as guardian of person and estate of Wiley Duncan, a lunatic.
D-189: Bond, 5 Jan. 1835, James Lewis, guardian of Wiley Duncan a lunatic, security Thomas P. Roberts, Nathaniel Massure. (MAD: Wiley Duncan mar. Elizabeth Ellison 5/18/1838)
Orphans Court Minutes, Vol.C - no Duncan (FHL film 1,617,355 item 3)
Admin. Records v.E, 1838-1846 - no Duncan (FHL film 1,617,355 item 4)
Orphans Court Minutes 1818 - no Duncan (FHL film 1,617,356 item 1)
Admin. Accounts v.C 1821-1831 - no Duncan (FHL film 1,617,356 item 2)
Admin. Records v.G 1851-1855 - no Duncan (FHL film 1,617,356 item 3)
Bibb Co. AL Orphans Court Records
Vol.A 1846-51 - no Duncan (FHL film 1,031,262 item 4)
Vol.B 1846-51 - no Duncan (FHL film 1,031,265)
"Reports of cases at law and in equity, argued and determined in the Supreme Court of Alabama; part of June term 1833 and of January term 1834" ("Stewart & Porter") Vol.5, by George N. Stewart and Benjamin F. Porter, pgs.82 to 90 (California State Law Library, Sacramento, 12/2003)
DUNCAN vs POTTS; Supreme Court of Alabama; 5 Stew. & P. 82; June, 1833, Decided. This was an action of trespass, quare clausum fregit; and was prosecuted by Duncan, against Potts, in Bibb Circuit Court.
The declaration having been demurred to, and the demurrer sustained; an amended declaration was subsequently filed. This declaration complained against the defendant, for, that the said plaintiff, theretofore, to wit, on the the twenty-seventh day of March, Anno Domini, one thousand eight hundred and thirty, in the County of Bibb, being peaceably and lawfully in possession of a certain improvement, consisting of twelve acres of cleared land; under a good fence, with the appurtenances thereunto belonging, on the public lands, belonging to the government of the United States; and as tenant at will, to the government of the United States, situated on the fractional section number fourteen, in township twenty-two of range nine, on the Cahawba river: and, being so peaceably and lawfully possessed thereof, as aforesaid, the said defendant, on the day and year aforesaid, and on divers other days and times, between that day and the commencement of the said action, to wit, at the County aforesaid, with force and arms, unlawfully did break and enter in, and upon the aforesaid improvement, and then and there, in a forcible manner, and with a strong hand, ejected, expelled, put out, amoved and dispossessed the said plaintiff, from and out of the possession, use, occupation and enjoyment of his said improvement aforesaid, with the appurtenances aforesaid; and kept and continued the said plaintiff so ejected, expelled, put, out, amoved and dispossessed, from and out of the possession, use, occupation and enjoyment of the said improvement, for a long space of time, to wit, for the space of twelve months then next thereafter; and, during all that time, the said defendant took, had and received to his own use and benefit, all the issues and profits of the said improvement aforesaid, being of great yearly value, to wit, of the yearly value of two hundred and fifty dollars. Whereby the said plaintiff, during all that time, not only lost the issues and profits of his said improvement aforesaid, with the appurtenances aforesaid, but was hindered and deprived of the use and means of cultivation of the said improvement, so consisting of twelve acres of cleared land, under good fence as aforesaid; and was forced and obliged to, and did necessarily lay out, and expend large sums of money, amounting, in the whole, to the sum of two hundred and fifty dollars, in and about recovering the possession of the aforesaid improvement, with the appurtenances aforesaid, in a certain action of forcible detainer, prosecuted by the said plaintiff against the said defendant, according to the statute in such case made and provided, for the recovery of the possession of the aforesaid improvement; and finally adjudged, decided and determined in favor of said plaintiff, against said defendant, before the commencement of this suit, in the Circuit Court of Bibb County aforesaid -- as, from the records and proceedings of the aforesaid Circuit Court, more fully appeared; which said judgment was in full force and unreversed, &c.
Secondly -- Another count of the same character.
A demurrer to this amended declaration, being filed by the defendant, the same was sustained, and judgment entered accordingly; from which the plaintiff prosecuted a writ of error.
COUNSEL: Stewart, for the plaintiff in error; Freeman, contra.
(Opinion) SAFFOLD, J. -- The question presented for consideration, relates to the sufficiency of the plaintiff's amended declaration.
The action is trespass. The declaration contains two counts, charging, in substance, that Duncan, the plaintiff, was peaceably and lawfully possessed of a certain improvement, consisting of twelve acres of cleared land, which was inclosed, &c.; that it was part of the public lands, belonging to the government of the United States, which he held, as tenant at will to the government aforesaid; situated, &c.: and that, he being so peaceably and lawfully possessed thereof, as aforesaid, the said defendant, on the day of , aforesaid, and on divers other days and times between that day and the commencement of the writ, in the County aforesaid, with force and arms, broke and entered in and upon the said improvement, and then and there ejected, expelled and dispossessed the plaintiff of the same, and kept him out -- thereby depriving him of the use, enjoyment and profits of the same, for a long time, to wit, for twelve months, &c.
The declaration contains various other averments, such as are used in declarations of this description: it makes reference to a recovery by the plaintiff, against the defendant, of the premises in question, in an action for a forcible detainer; and charges that the plaintiff had been obliged to expend large sums of money in and about the said recovery, &c. To this declaration the defendant demurred, and the Court sustained the demurrer and gave judgment for the defendant.
This judgment is now assigned for error. Under this assignment, two questions only have been discussed by the counsel --
1st. Is an occupant of the public lands of the United States, entitled to prosecute the action of trespass?
2dly. Is it necessary, that one suing, as tenant at will, should aver, in his declaration, that he held the land by grant?
1. It is a fact of general notoriety, that a large portion of the inhabitants of this State have been occupants of the public lands: that most parts of our country were settled before the government had parted with her title to the soil; and that, even now, considerable numbers continue to occupy and cultivate the public domain, without any objection or interruption from the government. Without legal protection, to persons in this situation, strife and contention would be incessant -- the peace and quiet of society would be constantly disturbed, and the strong and violent would give law to the weak and inoffensive.
But, it is not only here, but elsewhere, that many may be found in the occupancy of lands, to which they can show no legal title; and wherever this is the case, if prior peaceable possession did not give a preference in the right of enjoyment, the same consequences would arise. This is the reason of the common law, that any possession is sufficient to sustain trespass against a wrong-doer, or a person, who can not make out a title prima facie, entitling him to possession. It is held, that "a tenant for years, a lessee at will, and a tenant at sufferance, may support this action against a stranger, or even against his landlord, unless a right of entry be expressly or impliedly reserved." (footnote: 1 Chit. Pl. 178, & authorities.)
Also, it is said, "The action of trespass vi et armis is termed a possessory action, to distinguish it from those actions in which the plaintiff must show a title. Being founded on an injury to the possession, it is essential that the plaintiff should be in possession of the close, at the time when the injury is committed; but, as against a stranger or wrong-doer, it is immaterial whether such possession be founded on a good title or not. Even a tortious possession will support trespass against a wrong-doer." (footnote: 2 Wheat. Selw. 1018)
Various other authorities to the same effect, might be cited, but the principle is considered too clear to require it.
2. It remains to be considered, how a tenancy at will, for the purposes of this action, can be created.
The defendant's counsel insists on the authority of Chancellor Kent, (footnote: 4 Kent's C 210) "that a tenancy at will can not arise, without express grant or contract; and that all general tenancies are, constructively, tenancies from year to year."
Such, it is true, is the language of that learned commentator. He, however, in the same page, explains, and shows that this was not the original nature of estates at will; that Lord Mansfield had observed, (footnote: 3 Burr 1607) "that an infinite quantity of land was holden, in England, without lease;" and that they were all, therefore, in a technical sense, estates at will; but such estates are said to exist only nationally; and where no certain term is agreed on, they are construed to be tenancies from year to year.
Further, however, he says, (page 112,) "The reservation of an annual rent, is the leading circumstance, that turns leases for uncertain terms, into leases from year to year. If the tenant be placed on the land, without any terms prescribed, or rent reserved, and as a mere occupier, he is strictly a tenant at will.
A strict tenant at will, in the primary sense of that tenancy, is not entitled to notice to quit: nor is a tenant, whose term is to end at a certain time -- for, in that case, both parties are apprised of their rights and duties. The lessor may enter on the lessee, when the term expires, without further notice. Except, for the purpose, of notice to quit, tenancies at will seem even still to retain their original character. See Jackson vs Bradt (footnote: 2 Caines 169); Nichols vs Williams (footnote: 8 Cow. 13).
The principles of the English decisions, which are said, in many cases, to have converted tenancies at will, into leases from year to year, can have no application to an interest like the one in question -- to an interest accruing to one from his occupancy and improvement of the public domain; the absence of any obligation to pay rent, or of any necessity for notice to quit, distinguishes this from the modern idea of a tenancy from year to year.
While the government chooses to regard the occupier not as a trespasser, but to permit him to continue in the possession and enjoyment of the land, such acquiescence can constitute no other than a tenancy at will, according to the original notion of such estates.
As an indication of the general assent of the government to the existence of such tenancies, reference may be made to the several acts of Congress, of recent date, allowing to such occupants a preference, in becoming the purchasers of the lands so occupied: also to the act, authorising the executive, when deemed necessary, to remove settlers from the public lands; and to the orders which, at different times, in the history of this country, have been issued, for the removal of such as have acted offensively to the government, or who have asserted any right to the soil, inconsistent with the nature of a tenancy at will.
It is also worthy of notice, that the judicial decisions of this State, have uniformly recognised the claim or interest of occupiers of the public lands, as estates at will, and such as are entitled to protection against disseisors, intruders or other tort-feasors, under the act "concerning forcible entries and detainers." Such suits have often been sustained, in most of the Circuit Courts of the State, and the right to prosecute them has been fully sanctioned by this Court.
In the case of M'Donald vs Gaylesen (footnote: Minor 98), it was held, that a petitioner, who entitled himself tenant at will, on the lands of the United States, had a right to maintain the writ of forcible entry and detainer; that the person complaining, was required to set forth his estate in the land; and the term "estate," embraced the interest of tenants at will, as well as other tenants.
But, it is argued, for the defendant, that the plaintiff alleges in his declaration, that prior to the institution of this suit, he had successfully prosecuted an action of forcible detainer, against the defendant, for the recovery of this interest; and that, from this, it may be inferred, the original entry was lawful and peaceable; that the plaintiff must have abandoned the premises, and consequently could have had no right to prosecute this action of trespass.
To this, it is considered a sufficient reply, that this averment is not conclusive, as to the nature of the injury complained of: the forcible detainer may have succeeded a forcible entry; as the plaintiff has averred his own peaceable possession, and the forcible entry and ouster of the defendant, when issue shall be taken on the facts, he will be held to proof of these essential allegations, according to the legal acceptation of the terms.
From these views, we are of opinion the judgment below must be reversed, and the cause remanded.
"AL State Militia 1820-1865" alphabetical card file in AL State Archives, Clyde - D (FHL film 1,462,799; mostly in alphabetic order, Dunkin cards found later in file)
Duncan, B.F., Lieutenant 3rd Div. 14th Brigade 53rd Regiment; Com. May 22, 1833. Authority: Military State Register, 1832-1844.
Duncan, Benj. F., Adjutant, 3rd Div. 14th Brig. 53rd Regt; Com. Feb. 10, 1835, Vice, John Hill. Authority: Military State Register, 1832-1844.
Duncan, Benj. F., AL State Militia 1820-1860, Adjutant, 53rd Regiment; appointed, no commission date specified. Request for commissions, Centreville [MAD: Bibb Co.], Feb. 8, 1835, by Col. Robt. B. Pate.
(MAD: Benjamin A.F. Duncan mar. Menervia Harrison 5/23/1833; see Walker Co. TX deed A2-273, 1849, for Josephine Duncan, dau. of Minerva (Harrison) Duncan decd.)
Pension Index Card File, alphabetical; of the Veterans Administrative Contact and Administration Services, Admin. Operations Services, 1861-1934; Duff to A-J Duncan (negative FHL film 540,888, some cards very faint); Joseph Duncan to Dunn (positive FHL film 540,889, some cards very dark)
Cataloged under Civil War, 1861-1865, pensions, indexes; does not say if Confederate or Federal, but probably Federal. Negative film, some cards much too faint or dark to read, some cards blurred or faded, particularly the service unit and the dates of application. Most of the very faint or dark cards were in a slightly different format, with space for years enlisted and discharged which were sometimes filled in. Many of these were for service in later years, although one or two were for service ca 1866.
Name of soldier, alias, name of dependent widow or minor, service (military unit or units), date of filing, class (invalid or widow or minor or other), Application #, Certificate #, state from which filed (sometimes blank), attorney (sometimes blank, MAD: did not usually copy), remarks. Sometimes the "Invalid" or "Widow" class had an "s" added to it before the application #; occasionally the area for the service information included a circled "S". The minor's name was frequently that of the guardian rather than the minor.
The military unit was frequently the Company Letter, the Regiment Number, sometimes US Vet Vol Inf. (US Veteran Volunteer Infantry), L.A. (Light Artillery), H.A. (Heavy Artillery), US C Inf (US Colored? Infantry), Cav. (Cavalry), Mil. Guards, V.R.C. (?Volunteer Reserve Corps?), etc. Sometimes there were several service units given.
Cards appear to be arranged by the last name, first name, middle initial if any, and state (including "US") of service.
Duncan, Thomas, widow Duncan, Arminda; F 5 W.Va. Inf., A 1 W.Va. Vet. Inf.; 1890 Oct. 7, Invalid Appl. #982030, Cert. #1045012, Ala; 1912 Nov. 8, Widow Appl. #996010, no cert., Ala; remarks C2537893. (MAD: 1900 Bibb Co. AL, b.1850 KY, she b.1856 AL)
1856 "History of Pickens Co. AL, from its first settlement in 1817 to 1856" by Nelson F. Smith, originally pub. by "Pickens Republican" of Carrollton, AL, in 1856. (FHL fiche 6,048,613 and book 976.185 H2s)
Pg.55 (or pg.108): Tandy P. Duncan was the next, the last, and is the present Sheriff of Pickens Co., having been elected in August 1853. He was born in Fairfield District, SC, on 14 August 1816, removed to Pickens in January 1833 but the next year went to Bibb Co. where he remained until 1838 when he returned to Pickens. (see more in Pickens Co. AL)
1889 "Biographical souvenir of the state of Texas : containing biographical sketches of the representative public and many early settled families" by F. Battey (FHL book 976.4 D3bs and films 547,587 and 599,230 and 1,000,596 item 2; and from Lucille Mehrkam and Evelyn Sigler; sketches alphabetical, good index)
Pg.932-3: Hugh B. Yeager, born TX; father was Ducalion W. Yeager b. Bibb Co. AL to Fannin Co. TX 1855, Hunt Co. 1859; mother was maiden named Sarah A. Gillum, also b. AL, still living on homestead in Hunt Co. Hugh B. is 5th of 7 children: Henry V., Maggie J., Louis W., Personder C., Azariah O. and Mary A. Hugh B. Yeager b. Hunt Co. TX 21 April 1860 ... married on Dec. 3, 1885, to Miss Ellen L., dau. of John H. Younger and sister of F.S. Younger (MAD: biog. in book, not copied) ... Father of Ducalion W. Yeager was Abijah Yeager (MAD: sketch also has parents & family of Abijah, not copied here) b. VA, married Lucy Williams in 1810 in GA, moved to Bibb Co. AL 1818, settled 4 miles south of Centreville, died there 1862 aged 75 years; Lucy Y. his widow died there age 95. Abijah had 7 children: James M. d. Fannin Co. TX 1862, Lewis W., Berry B. d. Vicksburg MS 1862-3 during seige, Gabriel P. d. Smith Co. TX 1860, Ducalion W., Theodocia C. mar. M. Dobbins, and Martha E. mar. M. Woolley. ... Sarah A. Gillum, mother of subject (Hugh B. Yeager), had two sisters, Narcissa J. and Mary E. Narcissa J. mar. L.D. Friday now a resident of Choctaw Co. MS. Mary E. married A. Dunkins who died in Wood Co. TX in 1860. The widow is still living in Wood Co. Sarah A. Gillum also had two half sisters, Effie E. and Denica E. Lee.
"SC Magazine of Ancestral Research" 1984, Vol.XII, #1, (from Lucille Mehrkam 3/1984 and Evelyn Sigler 10/1985)
This periodical includes an extract from the Sale and Div. Book A, pgs.92-96, real estate of Allen Body, in the case of Abijah Body vs William Body, Simeon Body, Allen Body; bond of Ezekiel Jones for $585.00; estate was divided 1/3 to Ezekiel Jones' wife (widow of intestate Allen Body), and 1/13 of 2/3 to each of Abijah Body (MAD: 1850 Lowndes Co. AL census), William Body, Simeon Body, Allse Body, Richard Duncan & wife, Elisha Whittle & wife, James Newton & wife, Mark Haverd & wife, Charon Body, Latha Body, Jane Body, Hester Body, and Nancy Body sole heir of Jno. Body by her gdn. James Whittle; receipts were dated 1832-1835; power of attorney from Bibb Co. AL, Richard H. Duncan to Richard Duncan of Edgefield District, for his wife Elizabeth, d/o Allen Body Decd. 24 Nov. 1833. (MAD: See Richard H. Duncan b. 1800 SC, wife Elizabeth b. 1794 SC, in 1850 Marion Co. AL census; children born 1829 and later; Richard H. & Nelson Duncan in 1830 Bibb Co. AL census)
"Pioneers & Residents of West Central AL Prior to the Civil War" by Madge Pettit, 1988 (FHL book 976.1 H2pm)
Pg.43-4 contain information on the family of Hugh McCrainie Clark, including their daughter Mary Stuart Clark b. 21 July 1846 Bibb Co. AL, mar. James David Dunkin.
Pg.66 contains information on the family of James David Dunkin, born 1838 in AL, son of Catherine Buyley and David Dunkin, and grandson of Abel Dunkin Sr., born 1770/80 in SC, and died after 1830; James mar. first to Parmilia Ann Hamilton on 24 Jan. 1869 and had five children, then to Mary Stuart Clark. The articles give more about the children of James David Dunkin and Mary Stuart Clark. (MAD: see Perry Co. AL)
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