Duncans in Clinton Co. IL Court Records


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

Last revised March 25, 2004


"Reports of cases argued and determined in the Supreme Court of the State of Illinois" ("Illinois Reports" 1832-39 [Vol.] 2 Scammon) by J. Young Scammon, Vol.2, pgs.456 to 458 (California State Law Library, Sacramento, 12/2003)
      JOHN DUNCAN, plaintiff in error, v. THE PEOPLE OF THE STATE OF ILLINOIS, defendants in error; Supreme Court of Illinois, at Vandalia; 2 Ill. 456; 1 Scam. 456; December, 1838, Decided.
      Error to Clinton.
      THE following points were made by the counsel for the plaintiff in error: 1. Every count must be perfect in itself, or good by reference to a perfect count. 2. If the Court was right in quashing the first count, as the second count referred to the first, the whole indictment should have been quashed. 3. For the same reason judgment should have been arrested.
      SMITH, Justice, delivered the opinion of the Court: This was an indictment containing two counts; the first, for an assault with intent feloniously to kill and murder; the second, for an assault with intent to do a great bodily injury, without any considerable provocation, contrary to the statute in such cases provided. A motion, before pleading, was made by the defendant, to quash the indictment, for defects appearing on its face. The Circuit Court, on the motion, quashed the first count, and refused the application as to the second.
      The defendant was tried on the second count, and convicted. He then moved in arrest of judgment, which motion the Circuit Court overruled, and rendered final judgment on the conviction. A writ of error has been prosecuted in this Court, and it is now assigned for error -- First, That the Circuit Court ought to have arrested the judgment in the cause, because as the first count did not show a presentment on oath, and being bad and quashed by the Court, the second count being only good by reference to the first, the second should also have been quashed. Secondly, Because the first count being stricken out, there is no averment of the impaneling, selecting and swearing of the grand jury; and therefore the second count is bad.
      In considering the second objection, it will be well to determine what was stricken out, on the motion to quash the indictment.
      That portion of the indictment which recites the choosing, selecting and swearing of the grand jury, according to the form provided in Sec. 152 of the Criminal Code of this State, in which it is described as the commencement of the indictment, can not be considered as the count itself, or a portion thereof. It is but the caption prescribed by the act.
      The facts narrated after this caption, or commencement of the indictment, is the count; and this alone, we consider, was stricken out by the Court, on the motion to quash; and consequently the second count would be good by reference to this caption.
      Apart, however, from these considerations, the first objection can not be sustained, because the second count is perfect in itself without reference to the first. That count recites that, "The grand jurors aforesaid, chosen, selected and sworn, as aforesaid, in the name and by the authority of the People of the State of Illinois aforesaid, on their oaths aforesaid do further present." If the words "aforesaid" in this recital are considered as surplus-age, then the second count is, without any reference whatever, entirely sufficient in itself; and shows a presentment on the oath of the jurors, conformably to strict form. Without, however, considering it as surplusage, the count is not vitiated by the use of the word aforesaid.
      Neither of the grounds assumed as error being sufficient, the judgment of the Circuit Court is affirmed with costs.

"Reports of cases at law and in chancery argued and determined in the Supreme Court of Illinois, containing remaining cases decided at November term 1865, January term 1866, and a few omitted cases decided at April term 1864" by Norman L. Freeman; Illinois Reports, Vol.39, pgs.392 to 401 (California State Law Library, Sacramento, 2/2004)
      WILLIAM HADLEY v. JAMES L. D. MORRISON; Supreme Court of Illinois, Second Grand Division; 39 Ill. 392; January, 1866, Decided.
      APPEAL from the Circuit Court of Clinton county; the Hon. SILAS L. BRYAN, Judge, presiding.
      In 1841, James Duncan conveyed certain lands in Madison county to Isaac A. Letcher; and, in 1845, Letcher conveyed the same land to John Duncan, who occupied the premises until his death, which occurred on the 30th of January, 1848. Letters of administration were granted on John Duncan's estate to William Hadley. Afterward, one of the heirs of John Duncan conveyed her interest to Jonathan Duncan, and he conveyed to Charles Shenkle.
      In the mean time, in April, 1842, Edward Norton recovered a judgment against James Duncan and one Ayers for $2,000 and costs in the St. Clair Circuit Court. Execution issued on said judgment against James Duncan, and a balance thereof left unsatisfied. After James Duncan died, an execution was issued on the same judgment, and levied on said lands, which were sold in pursuance of such levy on the 23d of September, 1850. James L. D. Morrison became the purchaser, and on the 11th of May, 1852, he obtained a sheriff's deed.
      In 1853, Morrison exhibited his bill in chancery in the Madison Circuit Court, for the purpose of setting aside the deed from James Duncan to Letcher, and also the subsequent conveyances, alleging that they were made in fraud of the rights of the creditors of James Duncan. In October, 1860, Morrison obtained a decree setting aside those deeds as fraudulent and void. On the 9th day of June, 1862, Morrison commenced an action of assumpsit against Hadley to recover for money alleged to have been received by him for rents and profits of the land, and for money received for timber sold therefrom.
      It appears that Hadley had leased the land in question to different tenants for nine or ten years before the commencement of this suit, and that, for a portion of that time, the rents amounted to $250 a year. At some times Hadley claimed the land, and at others he claimed that he was the agent of Duncan's heirs, or of Shenkle. He sold some timber from the land, and gave to different persons permission to use the fallen timber thereon. It does not appear that Hadley ever recognized Morrison's title.
      Morrison recovered a judgment against Hadley in this action, for $1,262, from which Hadley took this appeal.
      The principal question presented is, whether Morrison was entitled to his action at law against Hadley under these circumstances.
      Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:
      This was an action of assumpsit, and the declaration contained a count for use and occupation of lands, and the usual money counts. A trial was had on the general issue, and resulted in a judgment in favor of plaintiff below for the sum of $1,262, and costs of suit. A motion for a new trial was entered and was overruled by the court. Exceptions were taken, and defendant below brings the cause to this court by appeal, and assigns for error the overruling of the motion for a new trial and the rendition of the judgment in favor of plaintiff below.
      It appears from the evidence that the appellee, in the year 1853, filed a bill in equity against appellant, as administrator of John Duncan, and the heirs of Duncan and other persons, for the purpose of setting aside deeds of conveyance for the lands, for the use of which it is claimed the rents accrued, made by one James Duncan to one Letcher, and by him conveyed to John Duncan, to defraud the creditors of James Duncan. The bill charges that John Duncan occupied the premises after he received a conveyance from Letcher until the time of his death. That letters of administration were granted on his estate to appellant, who claimed to have some interest in the lands. That execution was issued against James Duncan, in his life-time, on a judgment rendered against James Duncan and one Ayres, and in favor of Norton, which was transferred to appellee by assignment, and that a part of the judgment remained unsatisfied. That after his death execution was regularly issued and the lands sold by the sheriff to appellee, who afterward received a deed from the sheriff. Appellant filed an answer to the bill, a hearing was had, and a decree was rendered setting aside the deeds from James Duncan to Letcher, and from the latter to John Duncan, as fraudulent and void as to appellee.
      It also appears that appellant leased the farm to different tenants for nine or ten years before this suit was brought, that the premises rented a portion of that time for $250 a year. At some times appellant claimed the land, and at others he claimed that he was the agent of Duncan's heirs, or of Shenkle. That he sold some timber from the farm, and gave permission to different persons to use fallen timber from the farm. There is no evidence in the record, that appellant ever leased the premises of appellee, or in any manner recognized his title to the land. On the contrary, appellant claimed in his own right, or the right of others, for whom he claimed to act.
      It has been repeatedly held by this court that an action for use and occupation cannot be maintained, unless the relation of landlord and tenant is shown to have existed during the occupancy. That relation may, however, be shown by express contract, or it may be implied from circumstances. Dudding v. Hill, 15 Ill. 61; Ballentine v. McDowell, 2 Scam. 28; McNair v. Schwartz, 16 Ill. 24; Greenup v. Vernor, 16 Ill. 26. In the last two of these cases it was held, that when a person enters into possession under a contract to purchase, and refuses to perform the contract, the owner cannot recover in assumpsit for use and occupation. In the last named case it was also held that where a vendor remains in possession, after sale and conveyance, a tenancy cannot be implied, so as to authorize the vendee to recover for use and occupation. It then follows that as the relation of landlord and tenant was not shown, appellee could not recover under this count, at the common law.
      There having been shown no tenancy, and the relation of landlord and tenant not existing, if a right of recovery exists it must be alone by force of a statutory provision, as rents could not be recovered at the common law where the occupancy was tortious. The right being for a recovery of damages merely, an action of tort was the only remedy, and neither debt nor assumpsit would lie to recover such damages.
      The general assembly, for the purpose of obviating the hardships frequently suffered by the common law rule, and the act of 1845, on the 20th of February, 1861, Session Laws, 176, adopted an act to extend the remedy given by the former act to all cases where a purchase had been made and possession given, and the purchaser failed to complete the purchase, and in cases where the land was sold under execution or decree of court, and the defendant failed to surrender possession after the time for redemption had expired. It declares that in such cases the action of debt or assumpsit, for use and occupation, may be sustained.
      In the case of Jackson v. Warner, 32 Ill. 331, this court held, that this was a remedial statute, and as such must be construed liberally, that the remedy may be advanced and not narrowed or crippled in its provisions. We there said, that, to understand the scope of a statute purporting in its title to amend another, we must know what the provisions of the act amended were; for what cases it provided; what defects had been observed in its operation; and we must understand how they were designed to be remedied by the amendatory act. In other words, what was the mischief, and what was the remedy proposed? By the act of 1845, the action of debt or assumpsit for use and occupation could only be maintained where the relation of landlord and tenant was expressly shown, or facts were proved from which that relation could be inferred. In the administration of justice, it was found that in many cases great hardships occurred where the entry was not tortious but lawful, and the person thus acquiring possession, when it was unjust and inequitable for him to retain the possession without paying rent to the owner, was held not liable, and it was obviously to remedy this evil that this amendatory act was adopted.
      Under the former act, a person entering under a contract of purchase, and failing to complete it, although he may have entered according to the agreement of the parties, was not in as a tenant, nor could that relation be implied. He was in as a purchaser. So of a debtor, where land was sold under an execution or decree of a court, retaining possession after the time for redemption had expired. He was not, in any sense of the term, a tenant, nor had he entered as a wrong-doer, but it was nevertheless unjust and inequitable that he should use and occupy the premises after they had ceased to be his lands, without making compensation to the owner. These cases are enumerated in the amendatory act, and no question can of course arise as to them; but are other cases, falling within the mischief of the old law, and fully within the reason of the amendatory act, to be governed by its spirit, as though enumerated by it? We think they should.
      When the Circuit Court acquired jurisdiction of the suit in equity, the complainant should have prayed an account for rents and profits, but failing to do so, he was estopped from subsequently filing a bill for that purpose. Equity had no original jurisdiction to state an account of rents or profits in this case, but, having acquired jurisdiction to set aside the conveyance for fraud, had the bill been properly framed, the account might have been stated and complete justice been done. It then follows that, when this statute was enacted, plaintiff below had no right of recovery either at law or in equity. And, to hold that under this statute he might recover, would be to confer upon him a right which he did not previously possess. Such an act is unauthorized by the Constitution; and had this statute so provided, in terms, it would have been inoperative; but it does not, nor will we give it such a construction.
      The legislature did not design to confer rights, but only to enable parties, in the mode provided, to recover existing rights. Had plaintiff below not been precluded from recovering in equity, by omitting to pray an account in his bill, it might have been otherwise. The statement of such an account not being equitable, had the decree in that case been rendered after the passage of that law, the party would have had his choice of remedies, by an action at law to recover rent after the conveyance was set aside, or to have had the account taken under the bill. But the decree having been rendered before the passage of the law, and the party then having no action at law or right of recovery, the statute could confer no such right. To hold that a recovery could be had in this case, under the statute, would be to hold, not that a new remedy was given for the recovery of an existing right, but to hold that a new right was conferred, and also a remedy for its recovery. This was not designed, nor could it have been done.
      The judgment of the court below must be reversed and the cause remanded.
      Judgment reversed.

"Reports of cases at law and in chancery argued and determined in the Supreme Court of Illinois, containing remaining cases decided at April term 1866, all of those decided at November term 1866, and part of the cases decided at January term 1867" by Norman L. Freeman; Illinois Reports, Vol.42, pgs.404 to 407 (California State Law Library, Sacramento, 2/2004)
      JOHN B. MILLER v. THOMAS L. PRICE; Supreme Court of Illinois, First Grand Division; 42 Ill. 404; November, 1866, Decided.
      WRIT or ERROR to the Circuit Court of Clinton county; the Hon. SILAS L. BRYAN, Judge, presiding.
      The facts of this case are fully stated in the opinion of the court.
      Mr. JUSTICE BREESE delivered the opinion of the Court:
      This was an action of ejectment brought in the Circuit Court of Clinton county, by Thomas L. Price against John B. Miller to recover the possession of certain lands in that county. Both parties claimed title from one Elisha Duncan. It appears that Duncan, on the 7th of July, 1859, executed a deed of trust to Nathaniel Holmes for the premises in controversy, which was duly recorded, but for some irregularities therein, he executed another deed of trust to Holmes of the same lands, bearing date on the llth of July, 1859, which was duly recorded, and thereupon Holmes executed to Duncan a deed of release, dated July 14, 1859, of the deed of trust, dated, as plaintiff contended, on the 7th of July, but which appears, by the record, to bear date July 11. This deed of release recites, that "Thomas Duncan and wife, by their deed of trust, dated the 11th day of July, 1859, conveyed to Holmes the following described real estate, etc., to secure, etc., and whereas, on account of some supposed defect in said deed of trust in the execution thereof, another and a new deed of trust has been executed between the same parties and recorded, to secure the same debt and note above mentioned, I, the said Nathaniel Holmes, at the request of the holder of said note, as is witnessed by his signature subscribed to these presents, and in consideration of the premises and of one dollar to me paid by the said Elisha Duncan, have remised, released and quitclaimed unto the said Elisha Duncan, all the right, title and interest, which the said trustee acquired, in and by virtue of the deed of trust first herein above mentioned, in and to the lands described, and no other right, title or interest therein, whatever."
      After the execution of this release, Duncan, by deed, dated October 24, 1859, conveyed the premises to the plaintiff in error, and this is his title.
      Holmes sold the premises under the deed of trust of July 11, to one Frederick Delgado, by deed dated October 2, 1860. By conveyances from Delgado, through this sale, the defendant in error claims the title.
      The only question is, on what did Holmes' deed of release, of July 14, operate? And is it clear it was drawn and executed to operate on the deed of trust dated July 7th? And is it clear that the record of that deed has been altered? None of the original deeds were produced in evidence, the records being used instead of the originals.
      The defendant in error contends that his deed of release of July fourteen, on its face, referred to, and released the first deed of trust, dated July eleventh, and that alone.
      By the recital in the deed of release, it was the first deed of trust Duncan had executed, on which the deed of release of July fourteen was to operate. That deed was recorded on the 8th of July, 1859. The other deed of trust dated July 11, 1859, was recorded on the last named day. Now, as a deed dated July eleven could not be recorded on the eighth of that month, it becomes evident, that "the first named" deed must have borne a date prior to, or on the day of recording it, and here comes in the testimony as to the alteration of the record of the deed recorded on the eighth. The clerk of the recorder testifies, that the word "seventh" in the deed of trust to be released, was written by him as it now stands, except, that some one had prefixed the letter "e" to the word seventh, as written by him in the record, thereby making the word read "eleventh."
      The initial "e" he testifies, is made with a different shade of ink, and in a heavier hand than his. He states he did not do it, nor does he know who did; saw first that the record had been changed, when he was called to testify in a criminal case in the fall of 1860, or winter of 1861.
      This book of records has been submitted to us for examination, and we are satisfied beyond doubt, that the word "seventh" in the record of "the first named" deed has been altered, by prefixing to it the letter "e," which could be easily done, the initial "s" in the word "seventh," having much resemblance to the letter "1." An ingenious lengthening of the letter "s" and prefixing "e," was all that was necessary.
      We are satisfied the deed of release of 14th July, 1859, was intended to operate on the deed recorded July 8, 1859, and that the word "seventh" in that deed has been altered to the word "eleventh," so that it might appear that the deed last recorded, and dated July 11th, was the one released. By force of this fraud, Duncan was enabled to sell the land to plaintiff in error, he then apparently having title.
      The deed of July 11th not having been released, the title of defendant in error, so far as the parties to this record are concerned, derived through this deed, must prevail.
      The judgment of the Circuit Court must be affirmed.
      Judgment affirmed.

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