Duncan research files of
"Reports of Cases Determined in The Supreme Court of the State of California" at the July and October terms 1875; by Charles A. Tuttle, Reporter, Vol.50; pgs.511 to 520 (El Dorado Co. CA Law Library 12/2003; MAD's extract)
JAMES F. HIBBERD and WM. A. PIPER v. JOHN SMITH, CHAS. SHORE, H.C. TAPPAN, RUSSEL M. ROGERS and ELISHA H. ROGERS; No. 2104, Supreme Court of California; 50 Cal. 511; October 1875.
Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.
Ejectment to recover a tract of land containing about one hundred acres, being portion of the rancho San Antonio, in the county of Alameda. The action was commenced June 29, 1861, and at this time the grant had been confirmed, but the final survey had not been approved. Both parties claimed under W.W. Chipman. Chipman and Aughinbaugh owned the land, and on the 11th day of November, 1854, Aughinbaugh sold to Chipman. On the 1st day of March, 1855, the plaintiff Hibberd recovered a judgment against Chipman and Aughinbaugh for eight thousand six hundred dollars ... On the 22d day of October, 1856, an execution issued on the judgment, and the sheriff sold the demanded premises on the 17th day of November, 1856, and the plaintiff Hibberd became the purchaser, and received a sheriff's deed, July 7, 1858. Hibberd conveyed an undivided interest in the premises to the plaintiff Piper. This was the plaintiff's title.
The defendants claimed title under W.W. Chipman through Edward S. Chipman. On the 6th day of January, 1855, W.W. Chipman executed a deed of the demanded premises to Edward S. Chipman, who was not in California, but resided in the State of Ohio. This deed was recorded at the request of the grantor, March 15, 1855, but was not delivered to the grantee until June 30, 1855, at which time he arrived in this State. W.W. was indebted to Edward S. when the deed was made, but the latter did not know of the execution of the same until it was delivered to him. The defendants were severally in possession of the premises, deraigning title under said Edward S. The defendants offered in evidence the judgment-roll in the case of H.P. Hepburn v. W.W. Chipman and others. The judgment was rendered in the District Court of the Third Judicial District, for the County of Alameda, on the 26th day of August, 1854, upon a suit brought to foreclose a mortgage for over eleven thousand dollars given on other property than the demanded premises. The judgment was in the usual form, directing the sale of the mortgaged property, and then provided "that, in case of insufficiency of said proceeds to pay said notes and interest and all costs and expenses in this action, and attending said sale, then execution issue against said Chipman, Morrell and Webster, for the balance unpaid." Defendants then introduced in evidence an order of sale issued on the judgment, and the sheriff 's return, which showed that he sold the mortgaged property on the 23d day of October, 1854, for seven thousand eight hundred dollars, and reported a deficiency of $8040.84, which return and report were filed November 27, 1854. The defendants then offered in evidence an execution for the deficiency reported by the sheriff, issued July 1, 1856, and the sheriff's return thereon, which showed that he received the execution on the day it issued, and on the same day levied on the demanded premises, and sold the same on the 30th day of July, 1856, to W.L. Duncan, for the sum of seven thousand dollars. The writ and return were filed September 25, 1856. In the same connection the defendants offered in evidence the sheriff's certificate of sale, and a deed from the sheriff to said Duncan, dated August 14, 1857, and recorded October 8, 1858, and a deed from Duncan to Edward S. Chipman, reciting that said Chipman had purchased and was the owner of the judgment under which Duncan had purchased, and that the same had been assigned to Duncan in trust for Chipman, and declaring that Duncan held the property in trust for Chipman. This last deed was dated July 7, 1856, and recorded November 8, 1856. The above papers were introduced to show that whatever right Duncan acquired by the sheriff's sale was vested in Edward S. Chipman. ... Judgment and order reversed and cause remanded for new trial.
"Reports of Cases Determined in The Supreme Court of the State of California" at the April, July and October terms 1873; by Charles A. Tuttle, Reporter, Vol.46; pgs.342 to 346 (California State Law Library, Sacramento, 12/2003; MAD's extract)
ALFRED De WITT, JOHN G. KITTLE, and NICHOLAS G. KITTLE v. WILLIAM L. DUNCAN et al; Supreme Court of California; 46 Cal. 342; July, 1873.
Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco. ... (opinion) The plaintiffs allege that they are the owners of portions of block number nine, bounded by Folsom, Harrison, Eleventh, and Twelfth streets, in San Francisco; that in 1853, Montgomery, Walker, Davis, and Marshall were seized and in the actual possession as tenants in common of the block; that Eleventh and Twelfth streets had not then been surveyed; that the tenants in common of the block then believed that its width between Eleventh and Twelfth streets was greater than it proved to be on a subsequent survey; that the tenants in common intending to run a street through the middle of the block, executed a covenant in writing by which they laid out Nevada street; but the street was not equidistant from Eleventh and Twelfth streets -- that is to say, it was found, upon a survey of the latter streets, that Nevada street did not run through the middle of the block; that in 1865 the City and County of San Francisco caused a new block book to be prepared, in which Nevada street was laid down as described in the covenant above referred to, and not through the middle of the block; that in 1866 the city and county adopted an official map of the city, on which Nevada street is delineated as in said block book, and has let a contract for the grading and macadamizing of the street. The prayer of the complaint is that Nevada street be adjudged to be a public street, and to run from Folsom street to Harrison street, through the middle of block number nine, and that the contractor be enjoined from proceeding with his work. The judgment is that Nevada street is a public street, and that it be so located that the center line shall be equidistant from Eleventh and Twelfth streets, and that buildings and other obstructions be removed from the street thus located, and that the defendants be enjoined from obstructing said street. ... If Nevada street, as described in the judgment, was an open public street, it required no aid of the District Court. If it was not an open public street, the District Court had no power to make it one. What the judgment undertakes to do is to open a street through the middle of block nine, and it is obvious that the Court had no power to do any such thing. The decree takes Mr. Jessup's (appellant?) property and gives it to Mr. De Witt, without compensation made or provided for. No Court could do this, but the District Court had no jurisdiction to open streets or condemn lands. ... Judgment and order reversed, and cause remanded for a new trial.
"Reports of Cases Determined in The Supreme Court of the State of California" by C.P. Pomeroy, Reporter, Vol.107; pgs.423 to 428 (El Dorado Co. CA Law Library 12/2003; MAD's extract)
REBECCA SPENCER, Respondent, v. WILLIAM L. DUNCAN, Appellant; No. 15226, Supreme Court of California, Department One; 107 Cal. 423; 40 P. 549; June 4, 1895.
Appeal from a judgment of the Superior Court of the City and County of San Francisco.
This is an action to compel the defendant to account for and pay certain moneys alleged to have been received by him and held in trust for the plaintiff. The cause was tried by the court, written findings filed establishing the trust relation, and finding that there was due to plaintiff the sum of $1,071.85, with interest at seven per cent per annum from May 1, 1870, for which sum judgment was entered in favor of plaintiff. Defendant appeals from the judgment, and the cause comes up on the judgment-roll.
The portion of the judgment challenged is as follows: "Wherefore, by reason of the law and the findings aforesaid, it is ordered, adjudged, and decreed that W.L. Duncan, the defendant, holds in trust for Rebecca Spencer, the plaintiff, the sum of $2,678.73, and that said W.L. Duncan, the defendant, is hereby ordered, adjudged, and decreed to account to and turn over to said Rebecca Spencer, the plaintiff, the possession of said sum of money, to wit: Twenty-six hundred seventy-eight and 73-100 dollars, and that Rebecca Spencer, the plaintiff, have judgment therefor against the defendant, W.L. Duncan," etc. It is essential to a correct understanding of the point involved to say that the court found that the defendant, W.L. Duncan, admitted to plaintiff that he received the money from the hands of W.T. Lucky, in trust for and for the sole use and benefit of the plaintiff, and promised plaintiff that he would account for thereafter, and pay over to her the said sum; that the parties then agreed that the defendant should then presently pay over to plaintiff a portion of said sum, and might retain in his hands the balance of said sum of $2,160 in trust for the plaintiff, etc. ... The judgment appealed from should be affirmed.
"Reports of Cases Determined in The Supreme Court of the State of California" at the July and October terms 1875; by Charles A. Tuttle, Reporter, Vol.50; pgs.325 to 328 (El Dorado Co. CA Law Library 12/2003; MAD's extract)
MARK AGER v. R.L. DUNCAN; No. 4763, Supreme Court of California; 50 Cal. 325; October 1875.
Appeal from the District Court, Nineteenth Judicial District, City and County of San Francisco. Action on the following promissory note: "One day after date, for value received, I promise to pay to Mark Ager or order, the sum of six hundred and fifty dollars in U.S. gold coin, to bear interest at one per cent. per month, until paid." The court below found the following facts: "3. That the money for which said note was given was not the money or property of plaintiff, but of one B.C. Quigley, by whom it was given to plaintiff for the purpose of paying it over to defendant, which plaintiff did on the same day he received it. 4. That defendant and said Quigley were co-partners in business, and the said sum of money for which said note was given was a part of one thousand dollars which Quigley agreed to furnish towards the capital stock of said co-partnership business, as his, Quigley's, share thereto, and was used in said business. 5. That defendant was induced to give said note by and upon the representations of said Quigley, that he, Quigley, was in debt, and was fearful his creditors would annoy him and break up and ruin said partnership business if they knew he, Quigley, was interested and had capital invested therein; and that it was verbally agreed by and between defendant and said Quigley, at the time of signing said note, that said note was never to be paid, of which representations and agreement plaintiff had full knowledge at the time said note was given. 6. That said note was given without any consideration whatever, other than as above stated. 7. That a short time before said promissory note was given, said Quigley had made an assignment of all his property to his creditors, and it does not appear from the evidence, or otherwise, that there were any legal claims against him at the time said note was given." The court rendered judgment for the plaintiff, and the defendant appealed.
(part of Opinion) 2. It does not appear that Quigley had any creditors to be defrauded. On the contrary, the inference from the seventh finding is that he had none. But if it be assumed that he had creditors, and that the note was given for the purpose of concealing from them the fact that he had an interest in the co-partnership, the findings show that Quigley and the plaintiff were in pari delicto in the fraudulent intent. The contract is executory, and the action is to enforce payment of the note given with this fraudulent intent. In such cases it is immaterial by which of the parties the fraudulent nature of the contract is disclosed to the court. As soon as the fraud is made to appear by either of the parties, the court will refuse to interfere, and leave them as they were. In other words, it will not enforce a contract founded on the mutual turpitude of the parties to it. And for the same reason, if the contract has been executed, the court will not aid either party to escape its consequences. Judgment reversed and cause remanded, with an order to enter judgment for the defendant.
"Reports of Cases Determined in The Supreme Court of the State of California" at the April, July, October and November terms 1878 and the January, April, May, July, October and November terms 1879; by G.J. Carpenter, Reporter, Vol.53; pgs.410 to 412 (El Dorado Co. CA Law Library 12/2003; MAD's extract)
Ex Parte J.C. DUNCAN, on Habeas Corpus; No. 10,403, Supreme Court of California; 53 Cal. 410; January 1879.
Petitioner having been held to bail by the Municipal Criminal Court of San Francisco in the sum of one hundred and twelve thousand dollars on ten indictments for felonies -- being for forgery, grand larceny, and embezzlement, the sums alleged to have been stolen, etc., aggregating one hundred and twelve thousand dollars -- prayed this Court that the amount of bail be reduced to fifty thousand dollars. ... As observed at the argument, we must assume in this proceeding that the petitioner is guilty of the ten distinct felonies of which he is indicted. We must assume his guilt, though when he shall be tried it may be made to appear that he is wholly innocent of all the charges. ... A case might, of course, be presented in which the amount of bail demanded would be so great as to shock the common sense, and be seen to be utterly disproportionate to the offense charged, and in such a case it would be our duty to interfere. But the present case is not seen to be one of that character. Prisoner remanded.
"Reports of Cases Determined in The Supreme Court of the State of California" at the November term 1879 and the January and April Sessions of 1880; by George H. Smith, Reporter, Vol.54; pgs.75 to 80 (El Dorado Co. CA Law Library 12/2003; MAD's extract)
Ex Parte DUNCAN on Habeas Corpus; No. 10,464, Supreme Court of California; 54 Cal. 75; November 1879.
Application for reduction of bail on writ of habeas corpus. This is an application for an order that the prisoner be let to bail "in a reasonable amount," and that the order of the Municipal Criminal Court, fixing the amount of his bail at the sum of $113,000, be modified in respect to the sum demanded.
The petition sets forth that the prisoner is in the custody of the Sheriff of the City and County of San Francisco, and confined in the jail of said city and county, awaiting his trial upon ten indictments found against him by the grand jury, "eight of said indictments being for forgery, one for grand larceny, and one for felony in making and publishing false returns as an officer of the Pioneer Land and Loan Association, a corporation." That one of the indictments for forgery is upon a charge involving the sum of $2,750; another, for forgery, the sum of $1,750; the other six indictments for forgery committed in feloniously altering and uttering 3,170 shares of the capital stock of a corporation called "The Safe Deposit Company of San Francisco"; that the market value of these shares at the time of the finding of the indictments was about eight dollars per share, and at the present time about ten dollars per share. That upon one of the indictments for forgery of said capital stock the prisoner has been twice tried, and upon each trial the jury disagreed, and were discharged without finding a verdict. That upon said trials it was claimed by the witnesses for the prosecution, holding the certificates of stock for the forgery of which six of these indictments were found, that the prisoner had obtained upon such certificates the sum of $57,000, and no more. That the prisoner has been confined in the jail awaiting trial upon these indictments ever since the 23rd day of February, 1878, and that no trial has been sought by the people upon any of the indictments other than upon the one upon which the two mistrials have occurred.
Upon a former occasion, (January term, 1879) the prisoner applied to the Supreme Court for an order reducing the amount of his bail, and the application was, upon consideration by all the justices, refused. (Ex parte Duncan, 53 Cal. 410.) Unless the circumstances now disclosed make a case materially different from the case then made to appear, I should be disinclined to depart from what was then determined. We then said (and I think that it may, with propriety, be repeated now) as follows: "The question is not whether we would have exacted so great a sum in the first instance, had the proceedings to let him to bail been originally before us -- in other words, the inquiry is not whether a mere difference of opinion may have been developed between this Court and the Municipal Criminal Court as to the amount of bail to be exacted in this case. We are not to assume, in this case, the functions of the Court committing the prisoner, or substitute our own for its judgment in fixing the amount of bail. Before we are authorized to interfere, the bail demanded must be per se unreasonably great, and clearly disproportionate to the offense involved." ... In view of the notoriety which the case of the prisoner has attained, and to prevent possible injustice to him, I think it not improper to observe that his repeated failures before the Supreme Court, and before myself, to obtain a reduction of bail, ought not to be suffered to create an impression of his guilt in point of fact. We are not at liberty, in proceedings of this nature, to investigate that question. On the contrary, we are bound by the settled rules of law, as the basis of our judgment, upon this application, to presume him not guilty. It results that the petition must be denied, and the prisoner remanded. So ordered.
"Reports of Cases Determined in The Supreme Court of the State of California" by W.W. Cope, Reporter, Vol.66; pgs.402 to 403 (El Dorado Co. CA Law Library 12/2003; MAD's extract)
MARSHALL ARNOLD, Respondent, v. MARY JOHNSON, Appellant; No. 8,562, Supreme Court of California, Department Two; 66 Cal. 402; 5 P. 796; February 3, 1885.
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial. The defendant, on August 1, 1877, was the owner of twenty shares of stock of the Safe Deposit Company. The company doubled the number of its shares of stock, and resolved to issue new certificates for twice the number called for by the then outstanding certificates, which should be surrendered to the company. The defendant, for the purpose of availing herself of this privilege, delivered to J.C. Duncan her certificate of stock, with her name endorsed upon the back thereof, so as to make the title thereto pass by delivery. Duncan pledged the certificate to secure the payment of his promissory note. The pledgee had no notice of the real ownership, and received the certificate in due course of business. The note has never been paid, and the respondent, an assignee of the original pledgee, is now the owner of it. The appeal is from a judgment in favor of plaintiff, for the recovery of the certificate issued in lieu of the one endorsed by the defendant to Duncan. ... Judgment and order affirmed.
"Reports of Cases Determined in The Supreme Court of the State of California" at the October term 1868 and January term 1869; by J.E. Hale, Reporter, Vol.36; pgs.625 to 639 (El Dorado Co. CA Law Library 10/2003)
SUPREME COURT OF CALIFORNIA, 36 Ca. 625; January 1869:
HARRIET ANDERSON, D.L. ROSS, JOHN D. HOLLINGSWORTH, and HEZEKIAH S. HOLLINGSWORTH, SARAH E. DUNCAN, and WILLIAM T. HOLLINGSWORTH, Minors, by their Guardian ad litem, J.D. HOLLINGSWORTH v. JOHN FISK, S.C. HASTINGS, W.J. DOBBINS, and MASON WILSON, et als.
Appeal from the District Court, Seventh Judicial District, Solano County.
The complaint averred that the plaintiffs had title in fee simple to the demanded premises, and that "said premises were a part of the Rancho Los Putas, commonly called the Vaca and Pena Grant, granted to said Vaca and Pena by the Mexican authorities, and finally confirmed to them by the United States Courts, and duly patented," etc.
The plaintiff Harriet Anderson was the widow of W. Hollingsworth, who bought from Vaca and Pena, and died intestate, before the commencement of this action. The other defendants, except Ross, were his children by said Harriet.
Defendants ... entered into possession of the premises under a claim of title founded on a conveyance of the said premises, on the 21st day of August, A.D. 1850, from Vaca and Pena, the original grantees thereof from the Mexican Government, and still occupy a portion of the premises described in the complaint.
The deed from Vaca, made in 1848, had two subscribing witnesses, and was afterwards proved and recorded.
That on the 15th of October, 1858, in the District Court of the Seventh Judicial District in and for Solano County, an action was commenced by the defendant, William J. Dobbins, to recover the portion of the premises described in the complaint of which said Dobbins is in possession, brought against the said Harriet Anderson; that due service of summons was had, and the cause became regularly at issue, and was fully tried, and such proceedings were had therein that the said William J. Dobbins, on the 2d day of February, 1860, duly recovered judgment for the possession of the premises described in the complaint; that such judgment remains in full force.
The demurrers were abandoned by the plaintiffs. They were filed on the 10th day of July, 1861, and were never called up for hearing. Nothing appears to have been done with regard to them until more than three years afterwards, viz: on the 21st of September, 1864, in granting a motion made by the attorney for defendants to place the cause on the calendar, the demurrers are overruled.
[Opinion] By the Court, Crockett, J.: This is an action in the usual form to recover a tract of land, which is a portion of a larger tract which was granted and has been finally confirmed and patented to Vaca and Pena. The plaintiffs claim title from Vaca under a deed made in 1848, and which was recorded in December, 1851, but without any acknowledgment or proof of its execution. The defendants claim title under two subsequent deeds, one from Vaca and the other from Pena, both of which, though subsequent in time to the plaintiffs' deed, were first recorded. Several answers were filed by the defendants, all of which, besides a general denial of the allegations of the complaint, contained special matters of defense, which were separately pleaded. To these special defenses separate demurrers were filed by the plaintiffs in July, 1861. The record does not disclose what action, if any, was taken by the parties or the Court in respect to these demurrers prior to September 21st, 1864, on which day the following order was entered by the Court: "In this cause, on motion of W.S. Wells, attorney for defendants, ordered that this cause be placed on the calendar, and the demurrer to defendants' answer be overruled."
Judgment and order reversed, and cause remanded for a new trial, with leave to the defendants to amend their answers if they shall elect to do so.
"Reports of Cases Determined in The Supreme Court of the State of California" at the January, April and July terms 1871; by Charles A. Tuttle, Reporter, Vol.41; pgs.308 to 312 (El Dorado Co. CA Law Library 10/2003)
No. 2,819, SUPREME COURT OF CALIFORNIA, 41 Cal. 308; April, 1871
HARRIET ANDERSON, ARTHUR B. ROSS, Executor of D.L. ROSS, Deceased, JOHN D. HOLLINGSWORTH, and HEZEKIAH S. HOLLINGSWORTH, JOSEPH B. HOLLINGSWORTH, SARAH E. DUNCAN, and WILLIAM T. HOLLINGSWORTH, Minors, by their Guardian ad litem, J.D. HOLLINGSWORTH v. JOHN FISK, S.C. HASTINGS, WM. J. DOBBINS, MASON WILSON, WM. B. DAVIS, Administrator of WILS. DAVIS, Deceased, E.F. GILLESPIE, P. ABRAHAMSON, W.J. GLENN, BASCOM JEWETT, MARION JANES, JACOB BLUM, M. BLUM, JOHN BLUM, and E. LONG
Appeal from the District Court of the Seventh Judicial District, Solano County.
This was an action of ejectment, to recover possession of a portion of the Rancho Los Putos, in Solano County. There was a former appeal in the same case, which will be found reported in 36 Cal. 625. It appears that the original title was a Mexican grant to Manuel Cabeza de Vaca and Juan Felipe Pena, afterwards confirmed and patented by the United States Government.
The plaintiffs claimed title under a deed executed in 1848 by Vaca to Jacob D. Hoppe and Zimri Hollingsworth. This deed was not recorded until December 31st, 1851; previous to which, in 1850, Vaca executed another deed of the same land, recorded August 22nd, 1850, to William McDaniel, who had also become the purchaser from Pena. In 1854 McDaniel executed a deed, absolute on its face, to J. Caleb Smith, and George T. Marye, of the land purchased by him of Vaca. Afterwards J. Caleb Smith died, and Austin E. Smith was appointed, by the Probate Court of the City and County of San Francisco, the executor of his last will and testament.
In 1858, Austin E. Smith, as such executor, presented a petition to the Probate Court of San Francisco, setting forth, that on or before August 10th, 1854, McDaniel entered into a contract with the said J. Caleb Smith and George T. Marye, whereby said Smith and Marye agreed to advance, and did advance to McDaniel, at a monthly interest of two per cent, the sum of five thousand dollars; that for the purpose of securing the payment of the said sum and interest, McDaniel conveyed to Smith and Marye, by deed absolute, the property mentioned; that there was then due and owing, on the sum so advanced, the amount of eight thousand eight hundred and fifty-three dollars, which said McDaniel was ready and willing to pay upon the proper reconveyance being made to him of the property; that Marye had sold and transferred all his interest in the property to H. Clay Smith, who was ready to make a reconveyance to McDaniel upon the receipt of his portion of said money; that the only obstacle in the way of a full and final settlement of the matter was the inability of the petitioner to execute the necessary deed as the executor of said J. Caleb Smith, deceased, without the order of the Court; and praying to be allowed, upon receiving the portion of the money due the estate, to make, execute, and deliver the necessary conveyance of the property to McDaniel. In response to this petition, proceedings, analogous to those usual upon a petition for the sale of real estate, took place in the Probate Court; and on May 10th. 1855, an order and decree was entered, directing the executor, by deed of release and quitclaim, to reconvey the property to McDaniel upon the payment of the amount found due the estate; and a deed in accordance with that order was soon after made, executed, and delivered by the said executor.
Upon the trial of the cause from which this appeal is prosecuted, after the plaintiffs had introduced their proofs. the defendants offered the record of the Probate Court of the City and County of San Francisco, in the above mentioned matter, for the purpose of showing a reconveyance to McDaniel, under whom they claimed, of the interest previously conveyed by him to J. Caleb Smith, deceased. The plaintiffs objected to the admission of the record and evidence, upon the grounds that the same were irrelevant and incompetent to show any transfer of title, for the reason that the Probate Court had no jurisdiction to receive the petition of Austin E. Smith, or to act upon the same or the subject matter thereof, or adjudicate the same, or to enter the order and decree prayed for and entered, and that no authority was shown in Austin E. Smith to execute the deed so as to make it operative as a conveyance of the legal title to McDaniel. The objections were overruled and the record admitted in evidence, to which rulings plaintiffs excepted.
[Opinion] By the court, Rhodes, C.J.: There was a judgment for defendants; and a motion for a new trial having been denied, the plaintiffs appealed.
Judgment reversed, and cause remanded for a new trial.
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