Duncan research files of
1830-1840 Crittenden Co. AR Census
No Duncan indexed
1850 Crittenden Co. AR Census
Pg.359, #15, John DUNCAN 51 SC laborer
Lucretia 52 TN
John 20, Elizabeth 14 TN
Robert 12, Benjamin 10 TN
William 31 TN laborer
Moses JOHNSON 35 TN
Thomas HART 3 MO
(MAD: ? 1840 Campbell Co. TN census; ? Lucretia and family in 1860 Madison Co. MO census; one John Duncan 28 mar. Mary William 36 3/15/1855, not the John M. Duncan in 1860 Madison Co. MO; one Wm. T. Duncon 30 mar. Rachel Parker over 18 on 12/8/1850)
Pg.363, #24, James FARMER 24 NC overseer
Ruth 19 TN
Sarah 1 AR
Catherine DUNCAN 14 TN
(MAD: James S. Farmer age ca 21 mar. Rachel M. Duncan age ca 17, 7/27/1848)
Pg.369, #185, Napoleon DUNCAN 39 KY laborer
Nancy 32 KY
David 10, John 8, Nathan 7 KY
Sarah 2 IL
George 3/12 AR
1860 Crittenden Co. AR Census
Pg.818, #146-146, Jessee MAHAFFEY 29 GA farmer $2000-$100
America 26 TN
James 1/12 AR
(MAD: see St.Francis Co. AR, Jesse Mahaffey mar. Sarah Duncan 1854 in TN who d.1855, one dau. died age 5; ?? 1850 Decatur Co. TN census, possibly ?? mar. Perry Co. TN)
Pg.820-1, #162-161, James DUNCAN 52 TN farming $0-$150
Anna 48 TN
James 25 TN rafting
Acy (m) 22 TN rafting
Daniel 20 TN farming
Margaret 18, Martha 16 TN
Rachael 14, Elijah 10 TN
David 7 AR
Canada BRICKS (m) 20 AR (blank) $0-$250
(MAD: 1850 Decatur Co. TN census; father of Sarah who mar. Jesse Mahaffey; ?? James 52 TN in ? 1870 St.Francis Co. AR census)
Pg.846, #59-59, Mary A. BADGETT 36 KY farmer $6400-$7410
George R. 11, Mary Jessee 9 AR
Dora 6, Reuben 2 AR
Margaret DUNCAN 25 AL seamstress
(MAD: one John L. Duncan 44 mar. Margaret Dement 25 2/2/1859)
Pg.849, #81-81, Benj. GRANBERRY 16 GA overseer $20,000-$14,300
& as agent for B. DUNCAN
1870 Crittenden Co. AR Census
Jasper Twp., P.O. Marion
Pg.318, #246-269, DORE, Guss (m) 19 MS MULATTO farmer $0-$0
DUNCAN, Henry 17 TN BLACK farmer
GREEN, Caldwell (m) 21 TN MULATTO farmer
Pg.326, #21-23, TALBERT, L. (m) 35 GA BLACK farmer $0
DUNCAN, Thos. 45 AL BLACK farmer $0-$100
COOK, Charles 22 AL BLACK farmer $0-$5000
Pg.329, #1-1, DUNCAN, J. (m) 45 VA BLACK farmer $0-$25
Francis (f) 30 VA BLACK keeps house
Eliza 3/12 AR b. Mar. BLACK
John 18, George 15, Lavina 13 TN BLACKS
Crittenden Co. AR Deed Indexes; Grantors 1831-1871, 1871-1888 (FHL film 1,022,218; SLC 6/16/2008)
Have to 1857, no others through 1871
7-778: Dunkins, Henry and al to H.R. McLaughlin, May 29, 1873, May 28, 173, Mtg
Crittenden Co. AR Deed Indexes; Grantees 1829-1869, 1857+ (FHL film 1,022,221; SLC 6/16/2008)
Have to 1857, no others through 1871
J-502: Duncan, B. from J.W. Hopkins, deed, Nov. 29, 1858, $2400, Mar. 7, 1858
Crittenden Co. AR Deeds (Indexes 1826-1907, grantors on FHL film 1,022,218; grantees on FHL film 1,022,221)
E-145: 28 Dec. 1849, John C. Duncan and wife Lucretia (+) of Crittenden Co. AR to Alfred Evans of same, $200, 40 acres, being the SE 1/4 SW 1/4 Sec. 10 T7N R7E. Wit. Ruth C. Farmer, Wm. P. Farmer JP. (FHL film 1,022,225)
F-49: 22 April 1852, Stephen Cammel and wife Massadona to John C. Duncan, all Crittenden Co. AR, $80, one undivided eighth interest to land in T8N R6E in E.fraction of NE 1/4. /s/ Stephen (O) Campbell, Massadona (X) Campbell. No. wit. (FHL film 1,022,226)
F-276: 7 March 1853, John Canavan of Shelby Co. TN to Robert A. Duncan of Crittenden Co. AR, $25, SW 1/4 Sec. 25 T5N R4E. (FHL film 1,022,226) (MAD: Robert A. Duncan age 29 mar. Thurzea Ann Casteel age 18 on 8/3/1851; see Hist. of Louisa Co. VA; he mar. 2nd 1864 in Phillips Co. AR)
F-279: 7 March 1853, Robert A. Duncan of Crittenden Co. AR to W. Barton of Louisville, KY, trust deed of land in F-276 for $325 due. (FHL film 1,022,226)
H-274: 26 Feb. 1857, release of mortgage F-279 by William L. Burton Jr. and Samuel Browning. (FHL film 1,022,227)
H-275: (blank) March 1857, Robert A. Duncan of St.Francis Co. AR to Bryant Lynch of same, $1000, 160 acres, the SW 1/4 Sec. 25 T3N R5E except 40 feet square around a mound known as the family burying ground in SW 1/4 SW 1/4 to be held by Duncan. No wife. Wit. John A. Brictian?, Abrm. Menun?. (FHL film 1,022,227)
J-502: 27 Nov. 1858, J.W. Hopkins bond to Bryant Duncan, $24,000; that Bryant Duncan this day purchased of J.W. Hopkins land in Crittenden Co. AR, E 1/2 Sec.32 and 70 acre strip off E edge of W 1/2 of same section and 10 acres off S part of Sec.29, being the portion between the military road and Sec.32, in all about 400 acres, (MAD: does not give Twp. & Range) and agreed to pay $12,000, 1/3 payable Jan. 1, 1859 and 1/3 in 12 months after this bond and balance in 24 months after this date, and executed his three notes; bond that Hopkins will give title upon payment of debt. Wit. C.M. Farmer, R.M. Kirby of Memphis TN. (FHL film 1,022,228)
Crittenden Co. AR Probate Records
Letters of Administration 1837-1871 (FHL film 1,020,240)
Vol. 1, 1837-1853 - no Duncan
Vol. 2, 1853-1871 - no Duncan
Will Record Vol. A-C 1826-1908 (FHL film 1,020,241)
Vol. A, 1826-1852 - no index
Vol. B, 1853-1903 - no Duncan
Probate Court Record Vol. B 1826-1838 (FHL film 1,020,238)
Probate Court Record Vol. B, 1826-38 - no Duncan
County Court Record B, 1830-1845 - no index
County Court Record C, 1846-1852 - John C. Duncan indexed pg. 346, 369, 370, 380
Pg.346, survey on 13 Jan. 1852 in Sec.16 T6N R9E by John C. Duncan county surveyor, regarding dispute over land by others; other pages similar.
Probate Court Record C, 1839-1846 - no index (FHL film 1,020,243)
Probate Court Record B, 1846-1853 - no Duncan
Probate Court Record C, 1853-1856 - no Duncan
Crittenden Co. AR Circuit Court Records Vol. A-C, 1826-1855 (FHL film 1,022,238)
Book A, 1826-1839 - no name index
Book B, 1839-1849 - John C. Duncan indexed pg. 150, 152; not found these pages, no correlation found to index pages
Book C, 1849-1855 - no index
Circuit Court Bar Docket, 1839-1880 - lands sold for taxes, not looked at (FHL film 1,022,244 item 1)
Crittenden Co. AR Chancery Records Vol. A-B 1842-1860 (FHL film 1,022,244 item 2-3)
Vol. A, records by year 1842-1854 - no Duncan plaintiff, no x-index
"Reports of cases at law and in chancery argued and determined in the Supreme Court of Arkansas, containing cases decided at the December term 1871, June term 1872, and December term 1872" by Norval W. Cox, Vol.XXVII; Arkansas Reports, Vol.27, pgs.190 to 200 (California State Law Library, Sacramento, 2/2004)
SHELTON v. LEWIS et al; Supreme Court of Arkansas; 27 Ark. 190; December, 1871, Decided.
Appeal from Crittenden Circuit Court.
COUNSEL: O. P. Lyles, for Appellant. The question in this case is, as to the rights of prior and subsequent incumbrancers to have satisfaction out of the land, according to their priorities.
The rule of law which governs this question is laid down in the following authorities: (MAD: not included here)
However numerous the encumbrances created on the land, in the nature of mortgages, they leave still in the mortgagor the ultimate equity of redemption, by which he may disencumber the mortgaged premises, and revest himself with the legal estate.
In the eye of a court of equity the mortgagor, until a decree of foreclosure, continues the real owner of the estate. The equity of redemption is considered to be the real and beneficial estate, tantamount to the fee at law.
The mortgagor, so long as he has an equity of redemption, has an estate which he may convey in mortgage by successive deeds, which will take precedence, according to their order in time, provided the subsequent mortgagee had notice of the prior ones.
The Lewis heirs being then the mortgagees in place of Hopkins, and holding, as such, the legal title as security for the purchase money they have paid, and Asa Shelton occupying the shoes of Duncan holding the equitable interest in the land, it must be sold to pay the Lewis heirs their debt, and Mr. Shelton takes the residue of the, proceeds as the second encumbrancer, by virtue of his deed of trust.
The Lewis heirs having been in possession of the premises, at an agreed amount of rent, must account for the rents as mortgagees, because they cannot make a profit to themselves.
Watkins & Rose and B. C. Brown, for Appellees. It is only because a mortgagee is considered as a purchaser, sub modo, that he ever receives protection.
That his trust being taken as a mere security for a pre-existing debt -- he is not entitled to protection against the equities of complainants is definitely settled.
But Shelton was not a purchaser. He was a mere volunteer, taking a mortgage for a pre-existing debt. As such he stood in the same position as Duncan, the mortgagor; he only had a lien on such interest as he had, and no more. All the authorities show this. The doctrine of purchaser for a valuable consideration without notice does not apply between equities.
[opinion] W. I. WARWICK, Special J. -- In this case there appears to have been a multitude of original and cross bills, answers, exceptions, etc., and much testimony, and inasmuch as we concur in the findings of the court below, we give them here as statements of this case, viz:
"Complainants, Edward B. Lewis, Phoebe and Eliza F. Lewis are, and were at the commencement of this suit, the sole remaining heirs at law of Jacob A. Lewis, deceased; that as such they and their late brother, Pearce A. Lewis, and their late sister, inherited a considerable estate, in money and slaves, from their said father and their grandfather Lewis; that the said Jacob A. Lewis, at the time of his death, left also surviving him, his widow, Mary B. Lewis, who afterwards intermarried with one Bryant Duncan, and soon after died, leaving all of the said children of the said Jacob A. infants, under the age of twenty-one years; that Bryant Duncan became and was by the proper court of Probate of Russell county, Alabama, where they then resided, appointed guardian of and for all of said children of said Jacob A., and continued so to be and to account as such with said court up to, and in the month of March, when he made a final settlement with said court, having in his hands as such guardian of said heirs of the said Jacob A. Lewis, near twenty-five thousand dollars and a number of slaves; that in the early part of the year 1859, the said heirs being yet infants, the said Bryant Duncan removed with them and their property to Crittenden county, Arkansas, and there continued to reside with them until the time of his death; that prior to the commencement of this suit, the said Pearce A. and Mary L. Lewis departed this life, being then infants, not having been married or leaving any issue, and subsequent to the death of their said mother, Mary B.; that on the 27th day of November, A. D. 1858, the said Bryant Duncan purchased from John W. Hopkins the following described lands, lying and being situate in the county of Crittenden, to-wit: etc., etc. * * * * * for the sum and price of twelve thousand dollars, payable, one third on the first day of January, 1859, and one third in twelve months, and one third in twenty-four months from the day of said sale; that the purchase of said lands was made by said Duncan for the said heirs of the said Jacob A. Lewis; that said Duncan took the bond for title to said lands, to be made by said Hopkins, upon payment of the purchase money, to himself; that said Duncan paid to said Hopkins the first payment for said lands, of four thousand dollars; that afterwards, Coleman Boyd, and Tandy H. Trice became, by assignment, the owners of the two notes of said Duncan, given for the other payments of the purchase money of said lands, to whom the said Duncan also paid, as part of the purchase money, the further sum of $3,326.60; that said sum, so paid by said Duncan, of the purchase money for said lands, amounting together to the sum of $7,376.44, was with and out of the moneys of the said heirs of the said Jacob A. Lewis; that said Bryant Duncan, after the notes so given by said Duncan to said Hopkins, for so much of the purchase money of said lands, had come, by assignment, to said Boyd and Trice, and further to secure the payment thereof, to-wit: on the 7th day of March, 1860, the said Duncan, by his deed of that date, duly acknowledged, purported to convey to William C. Trice, all of said lands, in trust for the said purpose that the said Coleman Boyd & Co., on the first day of September, 1865, and to the November term of this court, 1865, filed their bill of complaint against Edward B. Lewis, as the administrator of the estate of Bryant Duncan, deceased, and the unknown heirs of the said Duncan, to enforce a vendor's lien upon said lands, accruing to them as the assignees of said two notes; that said Duncan, on or about the 4th day of February, 1864, departed this life intestate, and the said Edward B. Lewis became his administrator by appointment; that in said suit, so instituted by said Boyd & Co., said Edward B., Phoebe L. and Eliza F. Lewis, were admitted as parties, defendants, and therein filed their cross bill against said Boyd & Co., John W. Hopkins, and the heirs at law of said Duncan, setting up their claim to said lands, upon the ground that so far as paid for, had been paid for, by said Duncan, with their means and money and, in fact, been purchased for them, and praying that they be permitted to pay the residue of said purchase money and interest, actually due upon said lands, and the said John W. Hopkins required to make deed to them for the same, and that all claims of the heirs of said Duncan be divested out of them and vested in said complainants in said cross bill; that James Tappan was appointed administrator of the estate of said Duncan, in and for the purposes of said principal and cross suits; that in said suit, upon the original bill, it was by this court decreed that the said complainants in said cross bill, should pay to said Boyd & Co. the residue of said purchase money, and interest thereon, amounting to the sum of eight thousand five hundred and forty dollars; that upon the payment of the same, they should be and were subrogated to all their rights and benefit of lien for said purchase money, of and upon said lands, then held by said Boyd & Co.; that said complainants in said cross bill, did actually pay to said Boyd & Co., the said sum of $8,540.00; that upon said cross bill, it was decreed, by the court, that all or any right, title or claim of the heirs at law of the said Bryant Duncan, in and to said lands, be and the same were thereby divested out of them and vested in complainants, Edward B., Phoebe L. and Eliza F. Lewis; and it was further thereby, by the court, decreed that the said John W. Hopkins should make conveyance of said lands to complainants; that afterwards, on the 8th day of December, 1866, the said John W. Hopkins, and his wife Elizabeth Hopkins, by their deed of that date, duly executed and afterwards recorded, did convey the said lands, by proper and appropriate description, to the said Edward B., Phoebe L. and Eliza F. Lewis. And the court doth further find that the said Bryant Duncan, being then and theretofore indebted to the said defendant, Asa Shelton, by promissory note, of date April the 7th, 1861, in the sum of eight thousand seven hundred and twenty-six dollars, and sixty-four cents, on the 10th day of April, 1861, by his deed of that date, commonly called a deed of trust, and afterwards duly acknowledged and recorded, purported to convey a part of the same lands to the defendant Paul Jones, in trust, to secure the payment of the said sum so due to the said Shelton, was contracted and due by the said Duncan prior to the execution of said trust deed to said Jones, and the said deed was executed to secure the payment of the same, and that said debt has not been paid in whole or in part."
The foregoing are the conclusions of fact, which the court below found, and which, on review, we find to be substantially correct.
Thereupon the court below rendered the following decree, viz: "It is therefore ordered, adjudged and decreed, by the court, that the said deed of trust, of date the 10th day of April, 1861, executed by the said Bryant Duncan, to the defendant, Paul Jones, to secure the said debt due to Asa Shelton, by said Duncan, purporting to convey the said lands hereinbefore recited, be and the same is hereby cancelled and annulled, and shall be forever held for naught, and the said Paul Jones and Asa Shelton, and all and every their heirs, assigns, agents or attorneys are, and every of them perpetually restrained, enjoined, and inhibited from, in any way, executing, or attempting to execute the provisions of said deed against said complainants, their heirs or assigns." From this decree Asa Shelton appealed.
If the facts are correctly found, by the court below, the principles of law, applicable to them, are too well settled to require any discussion. It is objected by the appellant, that the certificate or authentication to the transcript of the proceedings had, in the Probate Court of Russell county, Alabama, is not in due form, in that it does not conform to the act of Congress of 29th May, 1790. The certificate is signed by "T. L. Appleby, Judge of Probate," and authenticated by the seal of his office, and after reciting that the transcript is a true, correct and perfect transcript of all the records, recites that he is the "Judge of said Probate Court, duly commissioned and qualified; that I am ex-officio clerk of said court, and the keeper of the records and seal thereof; that said court is a court of record, and this attestation is in due form." According to the rule laid down in Catlin vs. Underhill, 4 McLean 199, we deem it sufficiently authenticated. This transcript shows that Duncan had been appointed guardian of the appellees, and that on his last settlement with that court, a large amount of money was in his hands, as such guardian. It is established by other testimony that, at the time of the marriage between Duncan and the mother of the appellees, and when appointed their guardian, he (Duncan) was a man of no property whatever, and insolvent. It is equally well settled by testimony that, when Duncan removed to Arkansas, he had no property or money, save such as remained of the estate of his said wards, and that he brought to Arkansas the identical negroes that belonged to the estate of Jacob A. Lewis. From the record, there can be no doubt that whatever of money was paid by Duncan on the lands, was paid out of money belonging to his wards. There is much proof of statements made by Duncan, in his lifetime, that he bought the lands for his wards, but, in our view, if he used the money, they are equally entitled to the results of the purchase, whether he purchased for himself or them, and this would be true, if he had their money merely as agent, and not guardian. The rule is, that where one holds money of another, in any fiduciary character, and invests it in the purchase of land, taking the conveyance to himself, the person entitled to the money, may, at his election, charge the trustee personally, or follow the money into the land and claim the purchase as made in trust for him, and he may establish such trust by parol evidence. The proof, in such case, must be full, clear and conclusive, and such we deem it to be in this case. Duncan, when he purchased, obtained only an equitable title, viz: bond for title; and this, together with the possession of the premises, he held in trust for his wards, the appellees, and the purchase money not all being paid, they had an absolute right, on establishing their equity, to pay the residue and procure the legal title; for payment of part of the purchase money will create a trust to the extent of that payment.
It is insisted, in behalf of appellants, that the deed of trust by Duncan to Jones, to secure the indebtedness due Shelton, was made without notice to either Jones or Shelton, of the equities of the appellees, and hence, they are entitled to relief. It must be borne in mind that Duncan himself had only an equitable title, and of this Jones and Shelton were bound to take notice, and hence, he could only convey an equity to Jones and Shelton, which equity was subsequent to that of the appellees. There is no principle better settled, in courts of equity, than, that where both parties claim by an equitable title, the one who is prior in time, is deemed the better in right. The purchaser of an equitable title holds it subject to the equities upon it in the hands of the vendor, and has no better standing in a court of equity.
In the case of Petigrew vs. Turner, 25 Tenn. 438, 6 Hum. 438, and re-affirmed in Brown vs. Vanlier, 26 Tenn. 239, 7 Hum. 239, the court held, "that the right of wards to property purchased with their money, might be sustained against a conveyance in trust, to secure bona fide debtors, notwithstanding such trustee and cestui que trust were ignorant of their existing equity, at the time of the conveyance." It is conceded, by appellants, that "this is not a case in which the question of bona fide purchaser, for a valuable consideration without notice arises on this record," and insists that it is solely a question as to the rights of prior and subsequent incumbrancres to have satisfaction, out of the land, according to their privities.
In this connection, appellants insist that, at the time appellees procured the deed and legal title from Hopkins, they had notice of the equities of appellant, and that they cannot now avail themselves of the legal title against Shelton, and that Shelton stands before the court as second incumbrancer; that they hold the legal title in trust for Shelton, and that they have only a first lien for the residue of the purchase money paid out by them.
We do not so understand the law. It is true, that by decree of the court below, the Lewis heirs were directed to pay the residue of the purchase money to Boyd & Co., and were subrogated to the lien of Boyd & Co., and in this, we do not concede the decree correct, for the Lewis heirs, having the prior equity, and the result of the purchase from Hopkins by Duncan, being for their benefit, when they paid the residue of the purchase money, they could not be subrogated to any lien, because they, by that judgment, extinguished the lien for the purchase money of the land, on their own property. Suppose Duncan had, in his lifetime, paid the entire purchase money of the lands, out of the means of his wards, it could not be contended that when they obtained the legal title, in support of their prior equity, they or the land were bound to discharge subsequent equities. To hold that because they themselves paid the residue of the purchase money, they hold the legal title, in favor of subsequent equities, would place them in a worse condition than if they had paid nothing. We understand the rule to be, that as between prior and subsequent equities to land, where either obtain the legal title, if the legal title be good, equity, which follows the law will not interpose to take it away from him, unless there is something unjust or unconscientious in his mode of obtaining it.
In 2d Equity Leading Cases, 73, it is said to be "plain that the favor shown by equity to purchasers for value, only extends to those who acquire a legal title to the thing purchased, or who buy under the belief that they are acquiring the legal title, and that the purchaser of an equity, who knows or has the means of knowing the nature of his purchase, must submit to the general rule under which the title of a vendee is measured, and limited to that of the vendor."
So, in this case, Shelton and Jones had ample means of ascertaining the title of Duncan, for an examination of the records of Crittenden county, at the time of the execution of the deed of trust, from Duncan to Jones, for Shelton's benefit, would have disclosed the character of Duncan's title, and that, at best, he could convey only the equity of an equity. That it was inconvenient for appellant to make such examination is no sufficient excuse, and he must suffer the penalty for his want of diligence.
Quoting again from 2d Equity, Leading Cases, 72, "the purchaser of an equitable estate or interest must stand or fall, in equity, by the estate of the seller, and can not rely upon bona fides, and the expenditure of money as a ground for protection against a prior or better right or equity. His con-conscience may be clear, but he is presumed to have bought with full knowledge of the rule, which throws the risk of a purchase on the purchaser, and must submit to the consequences of his ill fortune, or want of due care and diligence."
Finding no substantial error in the record of the court below, the decree, of that court, is in all things affirmed.
"Reports of cases at law and in equity argued and determined in the Supreme Court of Arkansas, containing cases decided at the December term 1872, and June and December terms 1873" by John M. Moore, Vol.XXVIII; Arkansas Reports, Vol.28, pgs.282 to 289 (California State Law Library, Sacramento, 2/2004)
SWAYNE vs. VANCE, Executor, etc; Supreme Court of Arkansas; 28 Ark. 282; December, 1873, Decided.
APPEAL from Crittenden Circuit Court. Hon. JAMES M. HANKS, Circuit Judge.
[opinion] MCCLURE, C. J. William Vance, as executor of M. B. Winchester, deceased, sold to John Swayne and Bryant Duncan, both of whom are and were dead at the commencement of this suit, a certain tract of land in Crittenden county, which is described in the title bond as follows: "The south fractional half of fractional section twenty-nine, and that part of the Elizabeth Jones Spanish confirmation, No. 2,327, which lies north of the military road, and joins the fractional half section above described, in township seven north, range nine east."
Swayne, at the time of the purchase, paid Vance the sum of eight hundred dollars in confederate money, and afterward, the further sum of one hundred dollars in the same currency, and went into possession of the premises purchased, and Duncan, at different times thereafter, paid Vance one thousand dollars in confederate money.
Under the terms of sale, the purchasers were to have the privilege, if they so desired, of paying the balance, over and above the first payment of eight hundred dollars, in two equal annual payments. The land, under the contract of sale, was to be paid for at the rate of fifteen dollars per acre, and the quantity was to be ascertained by survery, which was not made in the life time of either Swayne or Duncan, and for this reason the notes were never given, nor the exact amount of the purchase money ever known by either of them.
Swayne and Duncan, as has been stated, after the purchase, went into possession and erected thereon a steam saw mill, and cut the timber from said land, which constituted its chief value. After having despoiled the land of its timber, the mill was removed, and both Swayne and Duncan died after that event.
John T. Swayne, the administrator of John Swayne, deceased, on the 2d of October, 1865, filed a bill in the Crittenden circuit court, asking a revision of the contract of sale and a repayment of the amount of purchase money paid by the decedent, on the ground that Vance could not make title to the property described in the title bond. To this bill Vance, as executor of Winchester, deceased, Edward B. Lewis, administrator of Bryant Duncan, deceased, and the unknown heirs at law of Duncan, were made parties defendant. Lewis, the administrator of Duncan, answers and says, that Duncan was, in his lifetime, the guardian of himself and two sisters, and as such guardian, came into the possession of twenty-five negro slaves belonging to himself and sisters; and that the one thousand dollars paid by Duncan on the land purchased of Vance was the result of the labor of the slaves; that said Duncan died insolvent, and had made no final settlement of his accounts as guardian at the time of his death, and that in equity and good conscience they were entitled, in the event the contract was rescinded, to the one thousand dollars paid by Duncan to Vance; and prays, in the event the sale is not rescinded, that, upon payment of the amount due, they may be decreed entitled to one-half of the land. The answer of Lewis is made a cross-bill, and the unknown heirs of Duncan are prayed to be made parties defendants, and asks that a special administrator be appointed on the estate of Duncan, which was accordingly done. The special administrator answered that he knew nothing of the facts, etc.
At the May term, 1866, Vance answered the bill of Swayne, and cross-bill of Lewis, and admits the sale of the land, the execution of the title bond, the receipt of nine hundred dollars from Swayne in confederate money, and the further sum of one thousand dollars, in the same kind of currency, from Duncan. He further avers that Duncan and Swayne took possession of the land, and put up a saw mill thereon, and used up and destroyed the timber on said land, which constituted its chief value; that, in equity and good conscience, the sale ought not to be rescinded under the circumstances; that Swayne and Duncan both understood that they were not purchasing any lands south of the military road; that, at the time of making the sale, his title papers to the land sold were examined by Duncan, who was himself a lawyer; that both Duncan and Swayne were well satisfied with their purchase during their lifetime, and that the only reason why final payment had not been made on said lands was, the number of acres of land had not been ascertained by survey; that on account of the war some difficulty was experienced in getting a suitable person to survey the same; that the testator of respondent had a good and sufficient title to said lands, and had been in possession of, and holding the same openly and adversely to all others, for a period of twenty-five years; that he is able and willing to make the title covenanted for in the title bond upon payment of the balance due, which has now been ascertained by a survey of said land. He protests against being compelled to pay back the purchase money received from Duncan and Swayne, and asks for a specific performance of the contract, and that he have a decree against the lands, and the executor of Swayne and the administrator of Duncan for the balance due.
At the hearing below the court decreed the relief prayed for in the answer and cross-bill of Vance; and Swayne appealed.
The matter of difference between the appellant and appellee is one of construction, and construction only; the one party claiming that the title bond is a covenant to convey the "south half of section twenty-nine," while the other claims that no portion of the south half of section twenty-nine lying south of the military road was intended to be conveyed by Vance, or purchased by Duncan and Swayne.
In construing a deed or other instrument of writing, it is the duty of the court to ascertain the intention of the parties; and this intent, when ascertained, fixes their rights and liabilities. The first general maxim of interpretation is, that it is not allowable to interpret that which has no need of interpretation. By this is meant, that if the language used in the deed be plain, certain and unambiguous, that the sense and intention of the parties must be ascertained therefrom. But there is another well known rule of construction equally as imperative as the one just stated, that where there is an ambiguity in the language, the court may resort to extraneous circumstances to ascertain what the parties really intended by the language employed; not for the purpose of changing the contract, or agreement, but for the purpose of ascertaining what the parties referred to and intended at the time of making the writing.
With these two well known rules of construction before us, let us examine the writing out of which arises all matter of difference between the parties to this suit. But, before doing so, it may not be amiss to state that the description attempted to be used by the parties in the title bond, to some extent, discloses an intention to resort to that in use by the government. Land in this state by law of the general government is surveyed and subdivided into legal subdivisions. First into townships, then into sections, half sections, quarter sections, and lesser subdivisions; and, since the organization of the state, whenever reference was made to any of these legal subdivisions, the exact location, the boundary and quantity of land was at once impressed on the mind. Thus, if one should describe a tract of land as being the "south half of section twenty-nine" of a certain range and township, the land granted would, at first blush, be supposed to be a tract of three hundred and twenty acres, and the entire south half of that section. Section twenty-nine is an interior section, and, under our peculiar land system, is seldom a "fractional section," unless some irregular survey, or a river or lake of some magnitude should trench on its boundary. But the language, descriptive of the land in the title bond, is not as we have stated; on the contrary, it describes the land as being "the south fractional half of fractional section twenty-one." The use of the word "fractional," as descriptive of the half section, and again as descriptive of the section, implies that the parties were attempting to describe an irregular shaped piece of land, the number of acres in which might greatly exceed or fall short of the quantity contained in a half section. The parties themselves have failed to express any number of acres as being contained in the tracts to be conveyed. Had any definite number of acres been mentioned, or had the parties approximated thereto, this might have led us to some conclusion as to whether or not the parties intended to convey or purchase any lands south of the military road, but there is no such expression in the deed. As the matter now stands, we are called upon to determine how many acres of land the parties intended to describe by the use of the words, the south fractional half of fractional section twenty-nine, and that part of the Elizabeth Jones Spanish confirmation, No. 2,327, which lies north of the military road, and joins the fractional half section above described in township seven north, range nine east," and where it is located. The object of the descriptive part of the grant is, to define what the parties intend, the one to convey, the other to receive, and, with the use of proper care, there would be little occasion for the application of rules of construction to the granting part of the deed. The language used in describing the grant, in the case at bar, is not that used in describing legal subdivisions of land, further than that the land is somewhere in the south half of section twenty-nine. The use of the word "fractional," as descriptive of the south half of a section, at once raises a presumption that a greater or less number of acres of land than is ordinarily contained in a half section was referred to; and, when we come to take into consideration the fact that "that portion of the Elizabeth Jones Spanish confirmation, No. 2,327, which lies north of the military road, and joins the half section above described," was a part of the south half of section twenty-nine, the inference arises, unless it be rebutted by other circumstances, that all the remaining portion of the section lying south of the half section line was to pass by the deed.
The law will not declare a deed void for uncertainty until it has been examined with all the light which contemporaneous facts may furnish. For the purpose of examination, extrinsic evidence is admissible, not to contradict or vary the terms, but to place all the facts, circumstances and positions of the parties before the court, to the end that they may be applied to the subject matter. The appellant, in this case, has entered the portals of a court of equity on his own motion, and it becomes him to have clean hands. The facts in this case disclose that Duncan and Swayne went into possession of the land on the north side of the military road at the time of the purchase, and afterward erected a saw mill thereon; that Duncan, himself, purchased and cultivated the land in the south half of section twenty-nine, which was south of the military road, and only divided from the land purchased of Vance by the road itself. In view of these facts, is it at all probable that Duncan contracted to purchase the lands on which he lived and had cultivated for a number of years? We cannot indulge any such presumption. Neither Duncan nor Swayne, in their lifetime, complained of want of title in Vance; nor, so far as we can learn from the record, did either of them claim that they had purchased from Vance any land lying south of the military road. This is a circumstance from which an inference may be drawn, that the original parties were satisfied, and in view of these facts, those who now stand in a fiduciary relation toward them cannot have any very grievous cause of complaint.
In order to place the construction on the language descriptive of the grant, contended for by the appellant, we have to start out with the presumption that Vance undertook to sell land he did not own, and that Duncan undertook to purchase of Vance the lands on which Duncan then lived, cultivated and claimed as his own. This is asking rather too much. The reasonable presumption is, that Vance intended to sell what he had a perfect title to, and that Duncan and Swayne intended (in view of the fact that one of them owned all the land in that section south of the road) to purchase that portion of the south half of section twenty-nine, lying north of the military road. No other conclusion than this can be arrived at, if we allow ourselves to become cognizant of all the facts known to the parties at the time of the sale; but if we shut our eyes to the fact, that Duncan himself was the owner of the lands on the south side of the military road, in section twenty-nine, at the time of the purchase, another construction might be indulged. To allow the estates of Duncan and Swayne to come into court after having stripped the land of its timber, which, from the evidence, constituted its chief value, and for which they paid nineteen hundred dollars in confederate money, and recover a judgment against Vance for nineteen hundred dollars in good money, is a demand that might with some propriety be urged in a law court, but it will not answer in a court of equity.
Finding no error in the proceedings of the court below, its proceedings are in all things affirmed, and the cause is remanded with instructions to execute the decree.
BENNETT, J., being disqualified, did not sit it this case.
Hon. C. C. FARRELLY, Special J.
1890 "Biographical and historical memoirs of eastern Arkansas : comprising a condensed history of the state, a number of biographies of distinguished citizens of the same, a brief descriptive history of each of the counties named herein, and numerous biographical sketches of the prominent citizens of such counties" White, Woodruff, Cross, Ciittenden, St. Francis, Monroe, Lee, Arkansas, Prairie, and Phillips counties; by Goodspeed (FHL book 976.7 H2bhm and film 934,823 item 3, and from Evelyn Sigler 11/1983)
Pg.396, Crittenden Co. AR: Some of the former County officers ... Surveyors ... J.C. Duncan (no time period).
Pg.483, St.Francis Co. Jesse W. Mahaffey, native of GA, brought to AR by his parents when 9 years of age, reared on a farm in St.Francis Co.; fall of 1849 went into timber business, engaged in getting out timber from the forest and rafting it down the St.Francis River since then in connection with farming; he owns farm on river bottom of 520 acres, 90 acres under cultivation, the rest timber, land lies partly in this county and in Cross and the balance in Crittenden Co. Mr. Mahaffey born in GA on March 15, 1831, son of John and Lucinda (Wright) Mahaffey, natives of Eastern TN. John Mahaffey born near Knoxville in 1804, mar. on Jan. 9, 1825, soon after he removed to GA and in 1840 to St.Francis Co. AR, living here until his death in 1859, member Christian Church, father of 7 children: Jesse Woods (principal of this article), Elizabeth P., William R., Lutishia, Belinda, Winnie and David R. Subject of this sketch the only member of the family living. He has been twice mar., first to Sarah Duncan in 1854, a native of TN who died the following year leaving one dau., the latter also died when 5 years old. He married second on May 19, 1857, she formerly America E. Dixon, dau. of Thomas Dixon and a native of TN; parents of 8 children, five living: James W., Jesse W., Thomas F., Lucinda and Mary E.; Mr. Mahaffey a Democrat, formerly old line Whig, Christian.
(MAD: Harvey Mahathey and James Mahathy indexed pg.45, St.Francis Co. AR 1850, Richland Twp; both single men, no obvious connection, no good match in 1850 or 1860 TN; see Decatur Co. TN 1850 census for Duncan families)
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