Duncans in Louisa Co. IA Court Records


Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug

Last revised March 31, 2004



"Reports of cases argued and determined in the Supreme Court of Iowa" ("Iowa Reports") by E.C. Ebersole, reporter, Vol.V being Vol.LXIII of the Series; Vol.63, pgs.150 to 151; also "Northwestern Reporter" Vol.18 pg.858 to 859 on microfiche; (California State Law Library, Sacramento, 12/2003; MAD's extract; complete names not given in either book)
      DUNCAN v. DUNCAN; Supreme Court of Iowa, Davenport; 63 Iowa 150; 18 N.W. 858; April, 1884, Decided.
      Appeal from Lousia Circuit Court. TUESDAY, APRIL 8. ACTION for partition of certain land. After the shares were settled, the parties agreed upon a division of the land, and that the action should be dismissed. Before dismissal, however, the plaintiff filed a motion to tax his attorney's fees as a part of the costs, which motion was overruled. The plaintiff excepted, and from the order overruling the motion he appeals.
      (Opinion) ADAMS, J. -- Section 3297 of the Code provides as follows: "All the costs of the proceedings in partition shall be paid in the first instance by the plaintiffs, but eventually by all the parties, in proportion to their interests, except those costs which are created by contests as above provided."
      Whether attorney's fees can be taxed as costs in any partition suit we need not determine. They certainly cannot in a suit in which there is a contest within the meaning of the section above quoted. The plaintiff denies that there was such contest.
      The plaintiff claimed in his petition that he was the owner of one-tenth of the land. The defendant filed an answer pleading, in substance, that the plaintiff had received $400 as an advancement, and asked that partition be made with reference to such fact. To the answer the plaintiff filed a reply, denying the allegations of the answer, so far as they were in conflict with the plaintiff's right to recover as shown in the petition.
      While the pleadings cannot be regarded as models, it is evident that the parties regarded them as presenting an issue to be tried, and we infer that an issue supposed to be presented by them was tried. The court found that the plaintiff had received $400 as an advancement, and charged him that amount in settling his share of the property.
      To determine whether this contest was such as is referred to in the section above quoted, we must refer to section 3282. That provides that the defendants may deny the interests of any of the plaintiffs. Now, while we cannot say that the defendant in the case at bar expressly denied the interest of plaintiff to be what he averred it to be, yet it seems to us that he did so, at least inferentially, and that his answer was so treated by both the plaintiff and the court. In determining whether there was a contest respecting the extent of the plaintiff's share, we should not be justified in taking a very critical view of the pleadings. The question is rather as to whether there was practically such contest. If the parties actually engaged in such contest, as we think they did, that, we think, was sufficient to control the question of costs. We see no error in the ruling of the circuit court.

"Reports of cases in law and equity determined in the Supreme Court of the State of Iowa" by John S. Runnells, Vol.III, being Vol.XL of the series; "Iowa Reports" Vol.40, pgs.254 to 256 (California State Law Library, Sacramento, 3/2004)
      HAUFT v. DUNCAN et al; Supreme Court of Iowa, Des Moines; 40 Iowa 254; June, 1875, Decided.
      Appeal from Louisa Circuit Court. FRIDAY, MARCH 19.
      THIS controversy arises in the proceedings for the settlement of the estate of William Easton and Elizabeth Easton, deceased. The appellant herein claims to be entitled to the one-third proceeds of the sale of certain real estate formerly belonging to said decedents, and he makes this claim under a mortgage made by the appellee, O. W. Easton, to E. R. Stewart, and at the foreclosure of which the appellant purchased. The appellee, O. W. Easton, claims that the property sold by the executor, Duncan, was not embraced in the mortgage, and that the proceeds belong to him. The Circuit Court found for Easton. Plaintiff appeals.
      [opinion] COLE, J. -- Prior to his death, William Easton made and published his last will, which was duly probated December 3, 1866. Among others, the will contained the following bequests:
      "To my beloved wife, Elizabeth Easton, I will and bequeath the following real estate with the improvements thereon, and situated in the county of Louisa, and state of Iowa and lying west of the public road from Columbus City to Cairo, and the one-fourth of thirty-eight acres of timber land, which is to be divided according to the quality of the timber, and located in the south-east quarter of section thirty-three, township seventy-four, range five, to have and hold the same with all the benefits and incomes therefrom arising during her natural life.
      2d. To my son, Orlando W. Easton, and to my daughters, Jane Easton and Margaret M. Easton, I will and bequeath that portion of my real estate in Louisa county, Iowa that lies east of the Columbus City and Cairo road, to be divided equal among them; and the remaining portion of the land in the south-east quarter of section thirty-three, township seventy-four, range five west, in Louisa county, to be divided equal among my sons and daughters according to the quality of the timber.
      5th. At the death of my wife, I direct that the real estate left to her during life be sold, and the personal property, and the sum arising from such sale to be equally divided among my three children, Orlando W., Jane and Margaret M. Easton."
      On March 28, 1868, O. W. Easton and wife executed a mortgage to E. R. Stewart to secure the payment of a note for $500, upon "the following described real estate, lying and being in the county of Louisa, and state of Iowa to-wit: all our right, title and interest as heirs at law of the estate of Wm. Easton, late of Louisa county, Iowa deceased, and bequeathed to us by the said Wm. Easton, deceased, the same being the undivided 1/4 of the west 1/2 of the east 1/2 of the south-east 1/4 of section 33, township 75, R. 4 west, and the undivided 1/3 of the north 1/2 of the north-west 1/4, and the north 1/4 of the south-east 1/4 of the north-west 1/4, and the north 3/4 of the south-west 1/4 of the north-west 1/4 of section 5, township 74, range 5." This mortgage was foreclosed by decree September 21, 1870, and the sale and conveyance thereunder was made to this appellant June 30, 1871, for the aggregate consideration of $693.12.
      At the date of the mortgage, and also at the time of the foreclosure and sale, Elizabeth Easton, the widow, was living; she died April 4, 1872, and Duncan was appointed her administrator on the 13th day of the same month. It appears from the testimony and the plat of the land, that a small part of the land in some one or more of the descriptions in the mortgage, lies on the west side of the road, and therefore not embraced in the devise to the children; but the great bulk of the land devised to the widow is not embraced in the descriptions set out in the mortgage.
      Upon all the facts of the case our opinion is in accord with that of the learned judge who tried the cause below. It seems to us that the manifest intent of the parties to the mortgage was to mortgage only that land, or the interest in it, which had been directly bequeathed to the mortgagor. The other had been devised to the widow and was not to come, even by way of remainder, to the mortgagor, but was to be sold and its proceeds distributed. The language of the mortgage is, "bequeathed to us," not bequeathed to another with remainder to us. The right of the mortgagee was limited to the interest bequeathed to the mortgagor in the land described in the mortgage.

"Reports of cases argued and determined in the Supreme Court of Tennessee for the Eastern Division for the year 1870" by Joseph B. Heiskell, Vol.I; Tennessee Reports, Vol.48, pgs.145 to 150 (California State Law Library, Sacramento, 2/2004)
      R.A. CONLEY, Adm'r, et al, v. Z.L. BURSON and JAS. H. DUNCAN, Ex'r; Supreme Court of Tennessee, Knoxville; 48 Tenn. 145; 1 Heisk. 145; September, 1870, Decided.
      From Washington.
      From the Chancery Court at Jonesboro. J.P. SWANN, Ch., presiding.
      The powers of attorney mentioned in the opinion were executed in November, 1860, by Rachel and John B. Duncan, they being citizens of Iowa, where they continued to reside during the war. Conley, the attorney, made his deed to the lands, lying in Washington County, Tennessee, June 20, 1863.
      TURNEY, J., delivered the opinion of the Court.
      The Chancellor's decree declaring void the power of attorney of Rachel Duncan to Josiah Conley, of November, 1860, and the power of attorney of John B. Duncan to Josiah Conley, of November 7, 1860, and the deed of said Conley, as attorney in fact for the two above named parties, to Z.L. Burson, made June 20, 1863, is correct. The facts necessary to be noticed are: Richard and John B. Duncan were the children of Joseph and Molly Duncan, who, after making a joint will, appointing defendant, James W. Duncan, executor, died. By the will, certain lands were devised to their children, including Richard and John B., who lived in Iowa. At the times mentioned above, the powers of attorney were executed. Assuming to act under these powers, Josiah Conley, as attorney in fact, representing Rachel and John B., joined others in the deed of 20th of June, 1863, to Burson, conveying their interests in a tract of land of about 530 1/2 acres. After this, Rachel died, leaving her husband and the heirs at law mentioned in the bill, who joined in this suit, asking to have the deed, as to the two interests, declared void, and the cloud removed from the title. Josiah Conley resided in Tennessee, and is dead. The tract of land is in Washington County, Tennessee. Rachel lived in Iowa to the time of her death. John B. still lives there. (MAD: Richard and Rachel as given; see Louisa Co. IA)
      Without expressing an opinion as to the validity or invalidity of the powers of attorney, or of the deed as to the two interests of John B. and Rachel, as appearing upon their facts or from their execution, but treating them as regular in these respects, we hold the deed void, for the reason that war existed at the time of the making of the deed, in which the two States of which the makers of the power of attorney and the attorney in fact, were respectively residents and citizens, were antagonistic. By the general law, a state of war puts an end to all executory contracts between the citizens of the different countries. Whatever contract remains then in fieri, is either suspended or dissolved, flagrante bello. 19 Johns. 138. The war between the States revoked the powers of attorney from John B. and Rachel Duncan to Conley; therefore, the deed was without authority.
      Defendant Burson, in his answer, asks that it be filed as a cross bill; and if his title under the deed is not good as to the interests of John B. and Rachel, he asks that the administrator of Josiah Conley account for the money paid to him on the purchase of the two interests. Without deciding whether he is properly in court by his cross bill, we are of opinion the relief asked can not be granted.
      The pleadings and proof satisfy us that the payment was in Confederate money. Under the rule, as declared by the Supreme Court of the United States, and by this Court during the present term, the defendant is not entitled to an account for the money paid by him. The fact that the Confederate States was a government de facto, or a government of paramount force, can not affect the rights of a citizen of a State at all times acknowledging the Government of the United States, and at no time interrupted in that acknowledgment by the Confederate Government or it armies; and while, as between citizens of States in secession, Confederate money did have a value, this was not so as between citizens of what were called the loyal States, nor as between citizens, on the one side, of the seceding States, and on the other of the loyal States not acting in sympathy with the cause of the South, and not trading upon terms of equality. During the civil war, all commercial intercourse with the enemy was prohibited by the Act of Congress of 1861. Revenue Cases, 66; Prize Cases, 291. In a State of war, the nations who are engaged in it, and all their citizens and subjects, are enemies to each other; hence, all intercourse and communication between them is unlawful. 18 How. 110. The tenor and meaning of the decisions of this Court, since its reorganization, are, that the States of the Union at war with each other were, in that war, as separate and distinct nations, and the citizens of each enemies of the other. It therefore follows, that their intercourse and communications was unlawful; and if citizens of Iowa were forbidden by the laws of war, or by the statutes of the General Government, of which they were citizens, to trade with a citizen of Tennessee, for the same reason they could not so trade through an agent or attorney in fact. And if, before the war, they constituted an attorney, and by the war the appointment was revoked, the action of the attorney in fact was a nullity, and communicated no title to the vendee. At the time of the conveyance, Conley, the attorney, and Burson, the purchaser from him, were bound to take notice of the existence of the war, and the political relations of themselves and John B. and Rachel Duncan thereto, and its legal effect. Burson had actual notice of the character in which Conley assumed to act; no fact was concealed from him. It results, therefore, that the payment of the purchase money by him to Conley was not for the benefit of John B. and Rachel, but was, in legal contemplation, no more than a deposit for his own use; he might have withdrawn it at any time; and if, when demanded, Conley had refused to return it, he could have made him liable for it or its value. Failing to do this, and the currency becoming valueless in the hands of Conley, without appropriation by him to his use, the loss falls upon Burson.
      Affirm the decree.

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