Duncan research files of
1830 Monroe Co. AR Census No Duncan indexed 1840 Monroe Co. AR Census Cache Twp Pg.51 James Duncan 0000,1 - 0000,1 52 John Drummond 0010,11 - 0100,01 (MAD: John Drummond also on 1837-1841 tax list) (3 households, then) Wm. B. Duncan 1000,01 - 1101 (MAD: William B. Duncan mar. Rebecca Pewit 10/5/1837 Phillips Co. AR; ? 1850 Smith Co. TX census) John Burriss 0001,101 - 0110,01 (MAD: William B. Duncan in 1839-1845 Chancery Court Case vs. John Burris over mortgage)
1850 Monroe Co. AR Census
Pg.367, #136, Willis DUNCAN 33 TN farming $300
Nancy A. 30 TN
Amelia 13, Elijah 10 MS
William 9, Abraham 5 MS
Louisa 2, Andrew 1 AR
(MAD: Willis Duncan mar. Nancy Matlock 3/8/1836 Marshall Co. MS; Andrew J. Duncan mar. 1879 Washington Co. AR, in 1880 Benton Co. AR census)
Pg.375 #246-260, John DRUMMONS 45 VA farming
Elizabeth 27 AR
Henry 4 AR
Henry BATHES? 9 AR
Mary JOHNSON 6 AR
Winney RICHARDS 5 AR
(MAD: looking for John Drummond who repudiated debts of his wife Sally Drummond formerly Duncan 9/19/1832, Pulaski Co. AR, in "Arkansas Gazette" newspaper; from pg.75, "AR Newspaper Abstracts, 1819-1845" by James Logan Morgan; one John Drummin also in 1840 Lafayette Co. AR)
Pg.376, #270, James DUNCAN 36 VA farmer $3000
Jane 25 SC
Nancy 5, Hezekiah (m) 3, Lucy A. 6/12 AR
1860 Monroe Co. AR Census
Pg.786, #194-194, Baker H. BATEMAN (m) 35 NC farmer $3200-$5048
Elizabeth J. 35 SC
Henry B. 3, Thomas T. 1 AR
James BLUNT 24 MS laborer
Laura J. DUNCAN 7 AR
Pg.786, #195-195, Jos. L. WHEELOCK 28 AL carpenter $1200-$200
Louisa J. 19 AR
Pg.786, #196-196, John C. DUNCAN 55 SC miller $3780-$1500
Zelphey S. (f) 54 TN
Jane HELLUMS 10 AR
Pg.833, #490-490, Willis DUNCAN 44 TN farmer $2400-$1500
Nancy 39 TN
William J. 19 MO farmer
Anderson 10, Sarah 9, Willis 7 AR
Columbus A. 5, Henry J. 3, Nancy E. 2 AR
(MAD: 1870 Watonwan Co. MN census)
Pg.835, #500-500, Stephen DUNCAN 54 SC farmer $0-$450
Sarah A. 36 SC
Margaret 13, Sarah J. 9 AL
Stephen W. 7, William M. 5 AL
Louisa 2 GA
(MAD: 1850 Randolph Co. AL census)
1870 Monroe Co. AR Census
Pg.7, #157-157, DUNCAN, J. C. (m) 65 SC fisherman $0-$0
Zilphe (Yilphe?) (f) 66 TN, father of foreign birth
Pg.15, #298-298, DUNCAN, Mary 40 TN BLACK dom. servt.
Louis (m) 15 AR BLACK dom. servt
Frank 8 AR BLACK
Pg.31, #56-56, DUNCAN, Berryman (m) 60 VA BLACK farmer $0-$300
Carolina 40 NC BLACK keeping house
James 16 AR BLACK farm laborer
Ann 14 AR BLACK farm laborer
Joe (m) 3 AR BLACK
SUTTON, Silas 80 NC BLACK
Edy (f) 85 NC BLACK
Pg.32, #74-73, FOSTER, George 30 TN BLACK farmer $0-$150
Mary 48 VA BLACK keeping house
DUNCAN, Annie (f) 21 VA BLACK farm laborer
(MAD: George Foster age 30, not age 50)
Go to the Monroe Co. AR Land Records
Monroe Co. AR Wills (MAD: looking for James Duncan indexed 1852, 1855)
Vol. A, Will Record 1820-1845 - no Duncan (FHL film 1,015,029)
Vol. B, Will Record 1846-1854 - no Duncan (FHL film 1,015,029)
Vol. C, Will Record 1855-1924 - no Duncan (FHL film 1,015,030)
Probate Court Records 1849-1854 - no index (FHL film 1,015,032)
Probate Court Records 1852-1868 (FHL film 1,015,032)
Pg. 4: "Willis Duncan was appointed guardian of William J. Duncan at the October term of the court of probate of Monroe Co. AR 1857; report filed January and ordered to lie over, and was con. April 1859 to July term and confirmed at the July term 1859.
Probate Court Record A&B, 1839-1854 - no Duncan (FHL film 1,015,033)
Probate Court Records 1854-1858 (FHL film 1,015,033)
Pg. 433-5: 12 Oct. 1857; Monroe Co. Probate Court. Now on this day William D. Munsey presented to the court here his bond as administrator of the estate of James W. Munsey in the sum of $300 with Willis Duncan and Lafayett Byrd as his securities, which was examined by the court and approved, and ordered the same to be entered of record.
Now on this day William J. Duncan presented to the court here the petition which is as follows, to wit: State of AR, Co. of Monroe, in the Monroe Probate Court, Oct. term 1857; the undersigned William J. (x) Duncan being a minor over the age of 14 years would ask the judge to appoint Willis Duncan of Monroe Co. AR as my lawful guardian, 12 Oct. 1857. Wit. Jno. A. Hancock; said Willis Duncan was appointed guardian of William J. Duncan upon filing bond; bond for $1000 filed by Willis Duncan, security William D. Munsey.
Same date; Willis Duncan guardian of William J. Duncan presented petition to sell land; William J. Duncan is owner in fee of NW 1/4 Sec. 24, T2S, R1E, 160 acres; his ward has no other means upon which to rely for his education; petition to sell land and invest proceeds; /s/ Willis Duncan guard. by S.P. Hughes; oath by Willis Duncan and by W.D. Munsey that the facts are true; court authorizes guardian Willis Duncan to sell the land.
"Reports of cases at law and equity argued and determined in the Supreme Court of Arkansas; January and July term 1846 and January term 1847" ("Arkansas Reports") Vol.7, by E.H. English, pgs.175 to 194 (California State Law Library, Sacramento, 12/2003)
DUNCAN et al. v. BISCOE et al, Trustees R. E. BANK; Supreme Court of Arkansas; 7 Ark. 175; January, 1846, Decided.
Appeal from the Chancery side of the Circuit Court of Monroe county. This was a bill to foreclose a mortgage, filed by Biscoe et al. as Residuary Trustees of the Real Estate Bank against William B. Duncan, Francis Suget and John Ker in the chancery side of the Monroe circuit court, and determined at the September term 1845, before the Hon. Wm. E. Butts, special judge. The bill set out a stock mortgage executed by Duncan, July 22, 1837, in conformity of the charter of the bank, to secure 234 shares of stock afterwards duly awarded to him; which was duly executed, acknowledged and recorded: and one executed December 4th, 1839, of the same tenor, correcting a mistake in the description of some of the lands. The bill averred that 234 shares of stock were awarded to Duncan, and he so became a stockholder, and borrowed on the stock secured by his mortgages, $11,700 payable by certain installments, nearly all which was due and unpaid; that on the 2d of April 1842, the bank by deed conveyed and assigned all her assets, including the said mortgages and the notes given for the money so borrowed, to certain trustees, to whom, under the deed, the complainants had succeeded. Surget and Ker were made defendants, Duncan having subsequently conveyed to them. The bill prayed foreclosure and sale, and exhibited copies of the Mortgages, bonds, notes and a deed mentioned in it.
Demurrer to bill by all the parties overruled, and decree for want of plea or answer. Defendants appealed.
(Opinion) OLDHAM, J. This was a bill filed by Biscoe and others, as trustees of the Real Estate Bank to foreclose a mortgage executed by Duncan, to secure the amount of stock awarded to him as a stockholder of said bank. The bill seeks a sale of the mortgaged premises for the payment of $11,700, borrowed from the bank by Duncan upon the credit and security of his stock under the 17th section of the charter. The defendants below demurred to the bill upon several grounds; the demurrer was overruled and the case has been brought into this court by appeal.
It is insisted by the appellants in support of their demurrer to the bill in the court below, that the Real Estate Bank at the time of the execution of the deed of assignment by her to the complainants as trustees, had no legal interest or title in or to the bonds and mortgages executed by the stockholders in accordance with the provisions of the charter, and that consequently the complaints acquired no such interest by virtue of the assignment as will enable them to maintain their suit for the purposes indicated in their bill. The determination of the question so presented depends entirely upon the provisions of the charter. The often contradictory provisions contained in that instrument, the vague and indefinite manner in which many of them are expressed have often been a source of much perplexity both to the bar and to the bench, when called upon to investigate questions arising and to determine rights brought into litigation under its enactments. In such case the only safe guide to a correct conclusion is a strict adherence to the rational rule of construction laid down by this court in the case of The State v. Ashley, 1 Ark. 513 at 542, "that the court must keep in view the nature and design of the grant, and its general intention and scope."
If we inquire as to the object which the legislature had in view in providing for the execution of bonds and mortgages by the stockholders of the bank, we will have no difficulty in arriving at the conclusion that such bonds and mortgages were intended to fill the requirements of the constitution by providing "such security from the individual stockholders as would guarantee the state against loss or injury," in consequence of the pledge of the public faith and credit to obtain the capital of the bank. The capital was obtained by a sale of bonds issued by the state to the bank, and the legislature, for the purpose of guarding the public interest and to secure the state against loss or injury, enacted "that all subscriptions to the capital stock of said bank shall be guaranteed and secured by mortgages and bonds, executed to said Real Estate Bank of the state of Arkansas, to be in all cases at least equal to the amount of stock subscribed, which said mortgage shall be conditioned for the payment of all moneys received from said bank, on account of subscriptions for stock, and for final payment of the bonds of the state and the interests thereon, subject to such rules, regulations and restrictions as may be hereinafter provided, which said mortgages shall form the basis of and stand as a full security for the loan or loans and interests thereon, which the said directors are authorized to make, and designated in the first section of this act." See charter, sec. 13. It was also further enacted "that for the guarantee of the bonds to be emitted by the state in favor of the Real Estate Bank and of the interest thereof, and for which the state pledges its faith and credit, all the bonds with the privileged mortgages executed for stock, are hereby transferred to the state and the holders of the bonds, which may be issued by the state in virtue of this act; and the governor shall only emit the state bonds after it shall have been proven to him by the certificate of the president of said bank, that mortgages shall have been executed by the stockholders of said bank in conformity with and according to the true intent and meaning of this act for at least one eighth more than the bonds required." Charter, sec. 14.
It is manifest from these provisions of the charter of the bank, as before stated, that the main object of the legislature in requiring bonds and mortgages of the stockholders, was to fill the requirements of the constitution by affording an indemnity to the state against loss or injury in consequence of the pledge of the public faith and credit, in the form of state bonds, upon which the capital of the bank was obtained. It is equally clear, and needs no argument to establish the proposition, that the lien of the State and bondholders upon the lands and premises mortgaged under and by virtue of the provisions of the charter just quoted, is paramount to all others, claiming under the charter. By keeping in view the general intention and scope of the grant, a careful examination of the charter leads to the clear and manifest conclusion that the bank, in receiving subscriptions for stock, as well as bonds and mortgages from the stockholders for the security of the stock awarded to them respectively, acted solely as the agent or trustees of the State, and those who should thereafter become the purchasers and holders of the bonds emitted by the State to the bank, and in the negotiation of those bonds she acted as the agent of the stockholders. Her whole character in these transactions was strictly fiduciary. By receiving bonds and mortgages from the stockholders to secure the stock respectively awarded to them, she was securing the interests of the State and the bondholders, and in the negotiation of the State bonds emitted by the State upon the guarantee and security of the bonds and mortgages of the stockholders, she was acting in behalf of the stockholders and thereby procured the capital necessary to commence and carry on banking operations, which is usually paid in directly by the stockholders themselves. Although her corporate name was used as the obligee of the bonds and mortgages executed by the stockholders, as well as of the bonds issued by the State, yet it is evident that was only intended to facilitate the accomplishment of the purposes intended by the charter -- the interest subserved being those of the stockholders the State and holders of the State bonds. After the bonds and mortgages were executed, the State bonds emitted and negotiated, and the capital received by the bank, her legal and beneficial interests attached in the same manner as though she had received the capital stock directly from the stockholders, without intervention of the State by a pledge of the public faith and credit.
Having determined the capacity in which the bank acted in receiving the bonds and mortgages executed by the stockholders, and in negotiating the bonds issued by the State as well as the original interests of the parties, and the rights and objects intended to be secured by the bonds and mortgages of the stockholders, we will next proceed to the inquiry for what purpose were those bonds and mortgages retained in the custody of the bank, and by what title did she continue to hold them? The purpose for which they were deposited and retained in the custody of the bank is declared by the 31st section of the charter, viz: "that the bonds and privileged mortgages shall be deposited in the offices of the said principal bank and branches respectively, when the said stock shall have been subscribed as security for the re-imbursement of the capital as well as the interests of the bonds granted by the State, and whenever application shall be made by a stockholder to transfer his stock and be discharged, such transfer and discharge may take place upon the new stockholder's furnishing mortgage to the satisfaction of at least a majority of the directors," &c. It is thus clearly and explicitly expressed and declared by the charter, that the bonds and mortgages were to be deposited in the principal bank and her several offices or branches as a security for the re-imbursement of the capital as well as the interests of the State bonds, and to facilitate the transfer of stock and the substitution of stockholders.
It thus appears from the charter that the bonds and mortgages of the stockholders were required in compliance with the constitution to guarantee the State against loss or injury in consequence of the pledge of the public faith and credit, to raise the funds to carry the bank into operation; that they were transferred by the charter to the State and the holders of the State bonds, and were deposited in the principal bank and branches respectively as security for the re-imbursement of the capital and interests on the State bonds. No other than a fiduciary interest in, or title to the stock bonds and mortgages is conferred upon the bank by the express provisions of the charter. If she held any other interest or title in or to them, it is derived by implication from the provisions of the charter, and results as a necessary consequence from the provisions of the grant.
It is contended on the part of the appellees that the amount of credit to which the stockholders were entitled under and by virtue of the seventeenth section of the charter was based upon the stock mortgages, and that in case of a failure of payment by a stockholder, to whom such loan may have been made, according to the provisions of that section, the bank is entitled to foreclose the mortgage and sell the mortgaged estate. Had such been the intention of the legislature, such a power and right would not have been left to implication, but express language would have been used. Furthermore, it would seem that the legislature would have required that the mortgages should bear upon a sufficient amount of property to cover both the bonds executed by the stockholders as well as the amount of notes and obligations given to secure the amount so loaned. But the mortgages and stock bonds were to be for the same amount which was to be in all cases at least equal to the amount of stock subscribed, and the same condition was to be annexed to each. Will it be contended that the bank can sue upon the bonds of the stockholders given under the 13th section of the charter for re-recovery upon a loan made to stockholder under the 17th section? The right is equally clear as to sue upon the mortgage.
The amount of credit to which the stockholders were entitled, was not based upon the security of the stock mortgages, but upon the stock owned and held by the borrower -- the amount of stock subscribed by him having already been paid into the bank for him by the State and purchasers and holders of the State bonds. His stock bond and mortgage stood as a full security to them for the re-imbursement of the capital stock for him, as well as the subsequently accruing interest, and the stock so paid in and held by the borrower formed the basis of the loan to him and security for the repayment of the amount so borrowed. It was not supposed that the stock would ever depreciate so low as not to afford ample security for one-half of its nominal amount. This security could be made available by a judgment and execution at law. A note or obligation was required by the borrower upon which suit could be brought by the bank, and upon judgment and execution obtained against him, his stock was by the 30th section of the charter made subject to seizure and sale. The case between the stockholder and the bank as debtor and creditor stands as though the amount of stock owned by the stock-holder had been originally paid into the bank by him, without the intervention of the State and a loan and negotiation of State bonds. In such case the stock would have been ample security for one-half of its nominal amount, its subsequent value being dependent upon the good or bad management of the affairs of the institution. If those who were intrusted with the management of the interests of the bank performed their duties so unskillfully and unsuccessfully as to deprive her of that security by rendering the stock valueless, she cannot resort to a security to enforce payment, which is designed for another and different purpose.
Sections 16, 27, 28 and 29 of the charter are cited and relied upon as conferring upon the appellees the right sought to be enforced by this action. Section sixteen provides that property already mortgaged may be received in guarantee upon the excess remaining after twice the amount of said mortgages shall be deducted from the whole value of the property. It also provides that money may be loaned upon the security of mortgages upon such property to stockholders or others, whenever the sum so borrowed was to be employed in the extinction of such prior mortgage or mortgages.
The 27th section provides "that mortgages for stock or loans granted by virtue of this act shall bear ten per centum interest per annum after maturity if not punctually paid, and that the mortgaged property may be seized and sold," &c. As we have already seen, the mortgages for stock, with the bonds executed by stockholders were intended as a security for the reimbursement of the capital of the bank, and in case of failure to comply with their conditions by the stockholders, the mortgages are under this section to bear ten per cent interest. Mortgages by loans as spoken of by this section are mortgages authorized by the 18th section of the charter to persons not stockholders. These sections, as well as the 28th and 29th have reference to entirely distinct matters than those contended for by the appellees, and do not either expressly or by implication in the most remote manner sustain the right claimed by the trustees and sought to be enforced by this action.
From a careful examination and consideration of the various provisions of the charter, we are of opinion that the bank possessed no other interest whatever in the stock mortgages executed by the stockholders under the 13th section of the charter than a fiduciary one, and the only action which she could have maintained upon them during her corporate existence would have in her fiduciary capacity in the execution of the specific trusts conferred upon her by the charter.
If it should prove that the assets of the bank are insufficient to discharge her liabilities (and the reimbursement of the capital is made her duty by the charter, and is consequently a portion of her liabilities) it is the interest of the state as well as the holders of the bonds that the stock bonds and mortgages should be held strictly as a security for the repayment of the capital obtained upon the credit of the state, and as a guarantee to the state against loss or injury. While the claim here asserted by the trustees of the bank is wholly unsupported by the charter, either expressly or by implication, it is contrary to public policy as well as the interests of the state and the bondholders that it should be sustained. It is well calculated to incumber the property mortgaged with conflicting titles requiring future litigation to determine them, and would consequently depreciate the value of the property. Purchasers would not bid a fair and full price for property at a sale under a decree of foreclose, when the property should be already held by a previous purchaser at a sale under prior decree upon the same mortgage. Although the title under the last decree might be the better and paramount title, yet prudent men will not risk their money in the purchase of property at a full and fair price when it is incumbered with a lawsuit. The allowance of such a claim would therefore weaken the security of the state and the bondholders, and would pro tanto deprive the state of that guarantee against loss and injury required by the constitution and provided by the charter of the bank. The bank held the bonds and mortgages as a mere trustee for specific purposes, she therefore had no power to transfer or dispose of them except in the exercise of the powers and execution of the trusts with which she was specifically clothed. She had no power to transfer them to trustees, or to provide other and different depositories for them, than those provided by the charter and an attempt to do so was a breach of the trust and confidence reposed in her. (footnote: This case was overruled by Wilson v. Biscoe, 11-44, in which it was held that the trustees of the bank may foreclose the mortgages and sell the land to enforce the payment of the stock loans secured thereby, subject to the prior lien of the state and bondholders and that the equity of the state and bondholders, is prior and paramount. See also Biscoe v. Morrison 11-114; Ringo v. Biscoe, 13-563 at 578.)
We are therefore of opinion that the complainants have no interest whatever, either general or special in the mortgages executed by stockholders to secure the amount of stock subscribed for by them, and that they possess no right of action whatever, upon such mortgages for the purposes designated by their bill. The decree of the circuit court sitting in chancery must therefore be reversed, and this cause be remanded with instruction to the court below to dismiss the bill for want of equity.
MAD: See also, in New Orleans, Louisiana, and Adams Co. Mississippi, the case of DUNCAN LINTON, CHARLOTTE LINTON and her husband, FRANCIS SURGETTE, STEPHEN DUNCAN guardian of MARY LINTON and JOHN LINTON MINORS, Plaintiffs in error, v. FREDERICK STANTON; Supreme Court of the United States; 53 U.S. 423; 13 L. Ed. 1050; 12 HOW 423; March 1, 1852, Decided December 1851 Term; from "Reports of Cases Argued and Decided in The Supreme Court of the United States" Book XIII (13 L Ed. pgs.1050 to 1051), by Stephen K. Williams, Containing Howard Vol.9, 10, 11, and 12; (12 How pgs.423 to 426) (El Dorado Co. CA Law Library 12/2003)
MAD: See also, in Jackson Co. Arkansas, the case of WILLIAM BYERS, Appellant, v. FRANCIS SURGET; Supreme Court of the United States; 60 U.S. 303; 15 L. Ed. 670; 19 HOW 303; March 5, 1857, Decided; December 1856 Term; from "U.S. Supreme Court Reports - Cases argued and decided in the Supreme Court of the United States" Vol.15 Lawyers Edition, by Stephen K. Williams, 1882; includes Vol.60 U.S. Reports, Dec. 1856; also reported in Vol.19 Howard and Vol.1 Miller's Decisions; pages 670-674 in Vol.15 Lawyer's Edition; pages 303-312 in Vol.60 U.S. Reports (El Dorado Co. CA Law Library 12/2003)
"Reports of cases at law and equity argued and determined in the Supreme Court of Arkansas; January, May and October terms 1859" ("Arkansas Reports") Vol.20, by L.E. Barber, pgs.85 to 92 (California State Law Library, Sacramento, 12/2003)
PEAY, Receiver, etc., v. DUNCAN et al; Supreme Court of Arkansas; 20 Ark. 85; January, 1859, Decided.
Appeal from Monroe Circuit Court in Chancery. Hon. George W. Beazley, Circuit Judge.
(Opinion) ENGLISH, C. J. This was a bill to foreclose a mortgage, filed in the Monroe circuit court, 23d June, 1848. The original complainants were Henry L. Biscoe, Sandford C. Faulkner, and others, residuary trustees of the Real Estate Bank, under the deed of assignment. In the progress of the cause it was shown that, by an order of the chancery court for Pulaski county, the trustees had been removed, and the assets of the bank placed under the management of Gordon N. Peay, as receiver, and he was substituted as complainant in the bill.
The defendants were William B. Duncan, Francis Surget, John Ker, Alfred Mullins, William McBride and John Smith.
The bill alleges that on the 2d July, 1837, Duncan having subscribed 300 shares of the capital stock of the Real Estate Bank, in order to secure the stock, and the repayment of the moneys to be borrowed by him, under the charter, on account of his stock, executed to the bank a mortgage upon a number of tracts of land, which are described, amounting to 3,218 acres, etc., situated in Monroe county, of which he was then the owner in fee. The mortgage was conditioned for the payment of all moneys which Duncan might receive from the bank on account of his subscription for stock, etc., and for the payment of such sum of the bonds of the State, issued in favor of the bank, as would be equal to the amount of stock allowed him, etc., and, also for the payment of the bond given by him for stock, etc., etc. Duncan to remain in possession of the lands until legally sold to discharge his obligations and liabilities aforesaid. Mortgage duly acknowledged and recorded 3d October, 1837, in Monroe county
That on the 4th December, 1839, after the award of stock to Duncan, in order further to secure the payment of said stock, moneys, etc., and to correct mistakes made in the first mortgage, in the description of the lands, he made a second mortgage to the bank, upon the same lands (with corrections, exceptions, etc., stated), conditional in all respects as to the first mortgage; which was duly acknowledged and recorded on the day of its execution.
On the 16th of September, 1837, the board of managers awarded to Duncan 234 shares of stock, etc.; and, under the 17th section of the charter, he became entitled, as stockholder, to borrow from the bank $11,700; and accordingly borrowed the same at the following time, and in the following amounts: October 18th, 1839, $10,534; November 29th, 1839, $1,166.
For which several sums he executed his notes, reciting his rights as stockholder, and binding himself to repay the money so borrowed, by annual payments, so that the whole should be paid by 25th October, 1856, and to pay annually, in advance, interest at the rate of eight per cent. on the part of the sums remaining unpaid at the end of each year. The notes are exhibited.
The bill further alleges the assignment of the bank of the 2d April, 1842, to trustees, including Duncan's mortgages and notes: that complainants were residuary trustees, etc., and that the charter of the bank had been forfeited, etc.
That there were no known liens upon the lands of older date than the mortgages.
That on the 29th November, 1843, Duncan conveyed the lands to Surget and Ker, who were originally joint equitable owners thereof with him. He borrowed said moneys from the bank, and executed the mortgages upon the lands with their knowledge and consent. When he conveyed the lands to them it was with the express understanding that they were bound for the moneys so borrowed by him. Immediately after Duncan sold the lands to them, he left the State, and has never returned, and they are also non-residents. They agreed to pay Duncan's debts to the bank, and were allowed the amount thereof out of the price of the lands in purchasing them of him.
Since the date of the mortgages, the defendants, Mullins, McBride and Smith, had entered upon the lands as tenants of Surget and Ker, leasing from them with notice of the mortgages, etc.
Duncan's notes to the bank remain unpaid, except some small credits, which are stated.
Prayer for foreclosure of the mortgages, sale of the lands, etc., and for general relief.
A demurrer was interposed to the bill in behalf of all the defendants. Afterwards Duncan and Surget withdrew the demurrer as to them, and filed a joint and several plea in bar, accompanied by the answer of Surget as to the matters of discovery prayed by the bill.
The substance of the plea is, that the trustees of the bank had previously filed a bill, in the same court, against Duncan, Surget and Ker, to foreclose the same mortgages, for the same debt; that a demurrer was interposed thereto, overruled by the court, and decree thereupon against the defendants: and they appealed to this court, the decree was reversed, and the cause remanded, and the demurrer sustained, and the bill dismissed for want of equity, in obedience to the mandate of this court.
The death of Ker was suggested, and his executor, widow and heirs made parties. His executor, Duncan, answered the bill, setting up the former decree relied upon by the plea, etc.
The complainants entered replication to the plea and answers.
The cause was heard April, 1856, upon bill, plea, answers, replications and exhibits, and the bill dismissed for want of equity; and Peay, receiver, etc., appealed.
The objection made by the counsel for the appellant, in the argument here, to the sufficiency of the plea in bar of the bill, comes too late.
If a complainant conceives a bill to be defective in form or substance he may take the judgment of the court upon its sufficiency by setting it down for argument; which, in practice, operates as a demurrer. But if the complainant relies to a plea, he puts in issue the truth of its allegations: and if, upon the hearing, the defendant proves the truth of the matter pleaded, the suit, so far as the plea extends, is barred even though the plea is not good in point of form or of substance.
In this case the complainant replied to the plea.
In support of the truth of the allegations of the plea, the defendants exhibited and read upon the hearing, transcripts of the proceedings, etc., of the Monroe circuit court, and of this court, on appeal, in the first bill to foreclose the mortgages in question referred to in the plea. The parties to that bill, it is manifest, were the same, in legal effect, as the parties to the bill now before us, except that three of the defendants to the present bill, Mullins, McBride and Smith were not parties to the first. But it is shown that they were in possession of the mortgaged premises as tenants of Surget and Ker, and held in no other right.
It clearly appears, also, that the first bill was to foreclose the same mortgages, upon the same property, and for the same debt, as the second: and that the final decree against the complainants (the trustees of the bank), though upon demurrer, was upon the merits, and not upon mere formal defects in the bill. (See Duncan et al. v. Biscoe et al., 7 Ark. 175.)
The general principles of law in respect to the conclusiveness of judgments and decrees of the domestic tribunals are well settled, and perfectly intelligible. A judgment or decree of a court of competent jurisdiction, directly upon the point, is conclusive between the same parties, or their privies, upon the same matter, when brought into question in the same court, or in another court of concurrent jurisdiction. The rule is founded upon considerations as well of abstract justice as of public policy, which forbids the litigation of any matter which has been once fairly determined by proper and competent authority between the same parties: or those standing in the relation of privies to them.
In Duncan et al. v. Biscoe et al., which is relied upon as a bar to the present bill, this court decided that the trustees of the bank had no interest, general or special; in the stock mortgages; that they were held for the benefit of the bondholders, and the idemnity of the State; that the trustees could not foreclose the mortgages to obtain payment of the stock loans; and that these loans were made on the faith of the stock owned by the borrowers, and not upon the mortgagee.
This decision is the law of the case, notwithstanding it was overruled in Wilson v. Biscoe, 11 Ark. 44.
Every consideration of public policy requires that a matter once fairly and solemnly adjudicated between parties, should forever be at rest. If a party suffers loss from an erroneous decision, it is but an unavoidable incident to the administration of justice by imperfect beings.
The decree is affirmed.
Desha Co. AR Deeds (copied SLC 7/22/2014)
Deeds, v.A-B, 1839-1848 (FHL film 985,112)
A-220/221: 28 Aug. 1840, William B. Duncan and Rebeca Duncan his wife of Monroe Co. AR to James T. Whiting of Desha Co. AR, for $540 paid, sell to said James T. Whiting a tract of land in said Desha Co., SW fractional 1/4 Sec.17 of Twp.10S Range 1E containing 75 and 40/100 acres as appears by Receivers Receipt No. 26.43, and warrant title. 28 Aug. 1840. /s/ William B. Duncan, Rebecca Duncan. Wit. Wm. Shinak?, John A. Womack. Ack. 28 Aug. 1840 before Wm. Harvick, J.P. of Monroe Co. AR. Recorded 28 Sept. 1840. (FHL film 985,112)
B-269: (do not have pg.268) to be made and executed, on the reasonable demand of the said Noadiah Marsh his heirs or assigns, after the patent or patents which shall be issued for the lands so to be entered shall be received from the President of the United States, a good and sufficient deed, in fee simple to the said Noadiah Marsh his heirs or assigns forever, with a general warrantee of the title and estate in and to the said two quarter sections of land, together with a relinquishment of dower therein, to him the said Noadiah Marsh his heirs or assigns against the lawful claim or demand of myself or my heirs, and against the lawful claim or demand of myself, or my heirs, and against the lawful claim or demand of all and every other person or persons, whomsoever, claiming by through or under me or them, and free and clear of all incumberances whatsoever, then this obligation to be void and of no effect, otherwise to remain in full force and virtue. In testimony whereof, I, the said Ebenezer Crawford, have hereunto set my hand and seal at Helena A.T. on the day and in the year first hereinbefore written. /s/ E.B. Crawford." Wit. John R. Sanford, Geo. W. Ferebee. Ack. before J.R. Sanford, Territory of AR, County of Philips, Township St.Francis, a J.P. of twp afsd, the above Ebenezer Crawford ... who signed the foregoing bond and power of attorney for the uses and purposes therein named, 4 June 1835, /s/ John R. Sanford, J.P. (FHL film 985,112)
B-269/270: Noadiah? Marsh for $1,000 paid, sell the annexed and foregoing obligation and condition to William B. Duncan and by virtue of the authority to me given in the annexed foregoing Power of Attorney do hereby nominate, constitute and appoint the said William B. Duncan as my substitute and the attorney of the said Ebenezer Crawford for the purposes in the said ... 22 Sept. 1835, /s/ Noadiah Marsh. Ack. 22 Sept. 1835 by Noadiah Marsh, of the foregoing assignment and power of substitution, before Solomon Jones, J.P., Philips Co. AR. Recorded Oct. 14, 1845. (FHL film 985,112)
B-272/273: 26 April 1844, William B. Duncan of Monroe Co. AR to Francis Surget of Adams Co. MS, for $1,000 paid, sell the north fractional half south of the Chute of Section 6 and the south fractional half south of the Chute of Section 5, all in Twp.9S Range 1W, containing 313.42 acres more or less, the land was located by a Lovely donation claim allowed and confirmed to Ebenezer Crawford and by said Crawford sold to Noadiah Marsh and by said Marsh conveyed to William B. Duncan, who located said claim, as appears by reference to said Crawford's conveyance dated 4 June 1835 and to said Marsh's conveyance to Duncan dated 22 Sept. 1835. (MAD: no signature shown) Wit. Burvin Harvick, William H. Daniel. 26 April 1844, ack by William B. Duncan before Wm. Harvick, J.P., Monroe Co. AR. Recorded Oct. 14, 1845. (FHL film 985,112)
B-273/274: 26 April 1844, William B. Duncan of Monroe Co. AR to Francis Surget of Adams Co. MS, that said Duncan by virtue of a Lovely Donation Claim allowed and confirmed to John Rogers has located the W 1/2 of "Section Tree" in Twp.10S Range 1W in said State of AR containing 320 acres more or less, now for $1,000 paid, said Duncan has sold to said Francis Surget. And whereas said Duncan did take of John Rogers the original claimant a bond and Power of Attorney dated 4 Aug. 1835 investing said Duncan with power to locate said claim and giving assurance of title when located, now the said Duncan appoints said Francis Surget my substitute should it become necessary to relocate said claim ... /s/ William B. Duncan. Wit. Perrin Harvick, William H. Daniel. Ack. 26 April 1844 before Wm. Harvick, J.P., Monroe Co. AR. Recorded Oct. 14, 1845. (FHL film 985,112)
Phillips Co. AR Deed (FHL film 1,018,960)
D-496: (typed) 29 December 1836, William B. Duncan of Monroe Co. AR to Francis Surget of Adams Co. MS, $5260, land in Twp. 2S Range 3E: SW 1/4 Sec. 11, 160 acres; E 1/2 Sec. 11, 320 acres; Whole Sec. 14, 640 acres; SE 1/4 Sec. 15, 160 acres; and land in Twp 3S Range 1E: E 1/2 Sec. 28, 320 acres; E 1/2 NW 1/4 and W 1/2 NE 1/4 of Sec. 21, 160 acres; E 1/2 NW 1/4 and W 1/2 NE 1/4 of Sec. 33, 160 acres; entered in name of William B. Duncan and Co., and have been regularly transferred to said William B. Duncan by Stephen Duncan, John Kerr and Francis Surget, the partners composing the said company. No wife. Wit. A.L. Gaines, W.A. Miller.
(MAD: one William B. Duncan of Pulaski Co. AR 1835 was heir of James Duncan Sr. late of Culpeper Co. VA, per Rappahannock Co. VA Deed B-380)
Randolph Co. AR Deed (SLC 10/3/2011; MAD & Dean D. Duncan: Spelling varies; deeds recorded in Book A were also recorded in Book 3 starting on page 591)
3-619/620: Deed, 17 November 1836, James Duncan of Monroe Co. AR to Francis Surget of Adams Co. MS, sold for $400 the following described 320 acres, sale being entered at the land office in Batesville: the northwest quarter of Section 24 and southeast quarter of Section 13 in Township 19 North and Range 3 East. James Duncan has right to sell, free from encumbrances, warrants title, etc. /s/ James Duncan, 17 November 1836. Witnesses: Wm. B. Duncan, Hiram Duncan. Randolph Co. AR Clerk Burrell J. Niley of Circuit Court confirmed signatures of James Duncan, William B. Duncan and Hiram Duncan. 17 November 1836. (FHL film 1,293,723; SLC 10/3/2011; extract by Dean D. Duncan; this deed was also recorded in Book A, pg.41, on FHL film 1,293,723)
Information from Alta Sue Duncan 10/1985. She has seen the tombstone of Willis Duncan: (MAD: Sebastian Co. AR)
Pleasant Hill Cemetery, Hackett, AR:
In Memory of Willis Duncan, born 16 December 1815, Hickman Co., Tennessee, died 27 September 1893.
Willis Duncan, son of John Andrew Duncan, b. April 1906, d. Sept. 1906. (ASD: John was son of Wm. J. Duncan)
Willis Duncan, son of William J. Duncan, born 1870, died ca 1916-1917.
Willis F., son of Willis (b. 1815)
One grave may be that of William J. Duncan.
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