Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug
Last revised February 5, 2014
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Duncan research files of |
1830 Jo Daviess Co. IL Census
Pg.316 Robert Duncan 0001,321 - 0100,101
(MAD: one Enoch Duncan was volunteer in Black Hawk War, 5/19/1832, from pg.501, "The Black Hawk War, 1831-1832" Vol.I, IL Volunteers, by Ellen M. Whitney; one Enoch Duncan mar. Louisa J. Holmes 12/13/1832; Mrs. Louisa Duncan mar. William D. Rice 12/24/1834; Enoch Duncan d. 7/17/1833, Louis Rice granted letters of admin. 8/18/1837; from Jo Daviess Co. IL Probate Records 7/1828 - 8/1837, on pg.148, Vol.16, "IL State Gen. Society Quarterly")
(MAD: Pg.245, same source, Probate Records pg.71, 10/14/1831, Hezekiah Wright and wife Mary formerly Mary Brown ack. deed to Robert Duncan of lot in St.Louis MO.)
1840 Jo Daviess Co. IL Census
No Duncan indexed
1850 Jo Daviess Co. IL Census
Salina
Pg.267, #2652-2656, John BIRK 35 GERM painter $0
Luchart (f) 29 GERM
William 9 GERM
John 1 IL
Michael DUNCAN 16 CANADA apprentice $0
William TALUM 14 GERM
Pg.267, #2653-2657, John J. DUNCAN 32 PA (blank) $0
Anna 25 ENG
Samuel 3/12 IL
Thomas NEAL 53 ENG laborer $0
(MAD: one John J. Duncan mar. Josephine Schillinberger 11/7/1844)
Pg.269, #2694-2698, George W. BROWNELL 40 NY? (blank) $0
Joanna 38 PA
Virginia DUNCAN 14, Edwin C. 12 IL
Silvester J. 10, Mary 8 IL
Amelia WILSTADTER 28 Nowary?
(MAD: from Dauphin Co. PA; Hannah Duncan mar. George W. Brownell 10/20/1847; she Joana Gough who mar. 1st Samuel Coffee Duncan of Waynesville, PA, from Vol.V pg.92 "Compendium of American Genealogy" by Frederick Adams Virkus; Edwin C. Duncan in 1870 Cook Co. IL census, Chicago Wd-2)
Pg.301, #3175-3179, Michael DUNCAN 30 IRE plasterer $0
Ann 28 IRE
Patrick CAROL 60 IRE (blank) $0
1860 Jo Daviess Co. IL Census
Galena Ward 4
Pg.434, #842-842, John J. DUNCAN 40 PA foursack maker $0-$50
Hannah 36 ENG
Samuel T?. 9, Mary V. 8, Henry 3 IL
Frank BARRET 3 IL foundling
Galena Ward 5
Pg.494, #1271-1329, Michael DUNCAN 40 IRE mast plasterer $3500-$50
Anna 37 ("do" or "Ills" written over)
Patrick CARROLL 80 "do" farm laborer
1870 Jo Daviess Co. IL Census
Berryman Twp.
Pg.19, #65-65, DUNCAN, Jones (m) 30 IL (white) day laborer $0-$0
Debora 23 IL keep house
Arthur (m) 2, Willie (m) 2 IL
City of Galena
Pg.139, #353-364, DUNCAN, Michael 52 IRE plasterer $1500-$300, parents of foreign birth
Ann 46 IRE keeping house, parents of foreign birth
Mary 9 IL (not parents of foreign birth)
CARROL, Patrick 86 IRE (blank), parents of foreign birth
Pg.196, #1234-1317, DUNCAN, Anna 46 ENG keeping h. $0-$100, parents of foreign birth
Samuel 19 IL farm hand, mother of foreign birth
Mary V. 18 IL dom. servant, mother of foreign birth
Henry 14 IL laborer, mother of foreign birth
Charles 5 IL, mother of foreign birth
Jo Daviess Co. IL Deed Indexes, copied to ca 1860 (copied by CVD in SLC 5/4/2013)
General Index To Grantee Deeds, Item 1: Bk.A, a-z ca.1829-1856 (FHL film 1,579,645 item 1)
C-26: Duncan, James? from John C. Smith, Deed, dated May 17, 1837, $5,000, Book C of D[eeds] pg.26, Lot No.18 Main Street Galena, filed May 17, 1837
C-286: DORMAN, Anna from L.H. Bowen & wife, Deed, July 15, 1836, $50, C-286, Lot No.4 B7 Savanna, Sept. 12, 1837 (not surname Duncan)
D-3: DORMAN, Miles from Bowen & Muncey, Deed, June 11, 1836, $400, D-3, Lots 3 & 8 Block 14 in Savanna, June 7, 1838 (not surname Duncan)
E-67: Duncan, James from John Dement et wf, Deed, Jany. 6, 1840, $1,926, E-67, Lot on Main St., Galena
E-429: Duncan, James C. from John Spiny?, Bill of Sale, Jun 23, 1841, $100, E-429, Horsie H, Jun 18, 1841
D-130: Duncan, James from John C. Smith, Deed, May 25, 1838, $400, D-130, Lots 1,2,3,4,5 ere the Permit & Lot No.2 Bench Sr Galena, Oct. 11, 1838
F-72: Duncan, Saml. C. from William Townsend et wf, Deed, Jany. 15, 1841, $50, F-72, Lot 3 B67 Townsend's Attuation [Addition?], Mar. 2, 1842
F-143: Duncan, Saml. C. from Alexander Young Shff, Deed, May 23, 1840, $1220.16, F-143, Lot 36, Main St. Galena, May 23, 1842
F-385: Duncan, Saml. C. from A. Young Shff, Deed of Trust, May 22, 1843, F-385, Lot 30 Main St. Galena, May 24, 1843
G-16: Duncan, Hannah from Henry Stenffie? et ux, Deed, Jany. 13, 1844, $75, G-16, Lot 14,15 B4 Galena, Jany. 13, 1844
General Index To Grantee Deeds, Item 2: Bk.B, a-z 1852-1857 (FHL film 1,579,645 item 2)
T-59: Duncan, Adeline from Charles Duncan, Pow.Atty, Sept. 26, 1853, TD, T-59, Power of Attorney, Mar. 25, 1854
General Index To Grantee Deeds, Item 3: Bk.C, a-z, r 1857-1865 (FHL film 1,579,645 item 3)
8-536: Duncan, Michael from Joseph Broker et al, Deed, Sept. 13, 1859, $120, Book 8 pg.536, C.Y. W 1/2 of City? Block 64 or 4 Meeker St., City of Galena, filed Oct. 5, 1859
General Index To Grantor Deeds, Item 1: Bk.A, a-z ca. 1825-1858 (FHL film 1,579,648 item 1)
F-38: Duncan, James to Isaac A. Letchin, Deed, dated Dec. 22, 1841, $5,200, F-38, Lot 18 Main St. Galena, filed Jany 7, 1842
F-138: Duncan, Saml. C. to Phillip F. Schwin, Mortgage, April 29, 1842, $5, F-138, Lot 20, 3611 Main St. Galena, April 17, 1842
F-144: Duncan, James to Isaac A. Letchin, Deed, May 23, 1842, $5200, F-144, Lot Main St. Galena, May 24, 1842
A of M. pg.60: Duncan, Saml. C. to School Commissioner, Mortgage, Apr. 24, 1843, $680, Book A of M pg.60, Lot 36 Main St. Galena, May 10, 1842
M-13: Duncan, John C. et al to Thomas & Wm. Pooley, Deed, July 23, 1849, $32, pt. Sec.32 T29 R2E, Mar. 2, 1852
M-39: Duncan, Wesley et al to Chas. Berryman, Deed, Mar. 2, 1850, $560, M-39, pt E 1/2 NE 1/4 Sec.26 T28 R2E, Mar. 8, 1850
M-82: Duncan, John C. et al to John Linn, Deed, Mar. 19, 1850, $350, M-82, NW 1/4 Sec.32 T29 R2E, Mar. 23, 1850
General Index To Grantor Deeds, Item 2: Bk.B, a-z 1852-1857 (FHL film 1,579,648 item 2)
T-56: Duncan, Charles et ux to Henson Foster, Deed, Jan. 26, 1854, $465, T-56, Pt Sec.24 T29 R2E, Mar. 25, 1854?
T-59: Duncan, Charles to Adeline Duncan, Pow. Atty, Sept. 26, 1853, T-59, Power of Attorney
General Index To Grantor Deeds, Item 3: Bk.C, a-z 1857-1865 (FHL film 1,579,648 item 3) - no Duncan
Jo Daviess Co. IL Deeds (SLC 12/11/2013 and 12/14/2013)
Book C, 1834-1838 (FHL film 1,601,854 item 1); Book D, 1838-1839 (FHL film 1,601,854 item 2); Book E, 1839-1841 (FHL film 1,601,854 item 3)
C-226/227: 17 May 1837, John C. Smith of Jo Daviess Co. IL to James Duncan of Jo Daviess Co. IL, for $5,000 paid, sell one undivided third part of piece or parcel of land in Jo Daviess Co. IL, on the plat of survey of town of Galena, Lot No.18 between Main and Bench? Streets fronting 61 feet on both streets and at present occupied by party of first part, St. Cyr & Dupins and Frederick Stahl, with appurtenances, warrant title. /s/ J.C. Smith. Wit. Philip B. Bradley? (Bradby?) Ack. 17 May 1837 before Samuel Smoken, Clerk of Circuit Court. Recorded May 17, 1837. (FHL film 1,601,854)
C-286/287: 15 July 1836, Luther H. Bowen and Sarah his wife of Jo Daviess Co. IL to Anna Dorman (NOT Duncan) of Savanna in Jo Daviess Co. IL, for $50 paid, sell piece of land in Jo Davies Co. IL, [part of?] Lot No.4 in Block No.7 in Village of Savanna, warrant title. /s/ L.H. Bowen, Sarah R. Bowen. Wit. Chas? T?. Hempstead. Ack. 13 Aug. 1836 before Samuel Smoken, J.P. Recorded Sept. 12, 1837. (FHL film 1,601,854)
D-3/5: 11 June 1836, Luther H. Bowen and Sarah Murray his wife to Miles Dorman (NOT Duncan) of Jo Daviess Co. IL, for $100 paid, sell piece of land in Jo Daviess Co. IL, Lots No.5 and 8 in Block 14 counting from the mouth of Plumb River north, each lot being 50 feet broad, the former fronting 50 feet on main street and the latter fronting on Commerce, 50 feet in the village of Savanna, Jo Davies Co. IL, with appurenances, warrant title. /s/ Luther H. Bowen, Sarah R. Bowen, Jos. B. Murray, by D?. H. Bowen, Attorney. Ack. 3 April 1837 by L.H. Bowen and Rebeker? Bowen his wife before John C. Owing, J.P., Jo Daviess Co. IL. Recorded June 7, 1838. (FHL film 1,601,854)
D-130: John C. Smith of Galena, IL, for $4,000 paid by James Duncan of Madison Co. IL, quit claim to James Duncan tracts of land, all my interest to Lots 1, 2, 3, 4, & 5 in the bottom between McKnights point and H.H. Gears? which lots were purchased from Thos. McKnight, Lot No. 2, Bench South Street on which is a farm house, purchased from M.C. Comstock as administrator of the estate of D.R. Davis (deceased), also my interest to the SE 1/4 Sec.24 Twp.28N Range 1W which is bought from D.G. Bates, also all my right to the NE 1/4 of Sec.25 Twp.28N Range 1W, also all my interest to Lots No.24, 25 and 26 on Water Street in Galena, warrant title. 25 May 1838. /s/ J.C. Smith. Wit. E.B. Kimball, C.S. Ingraham. Ack. May 21, 1838, before Saml. Smoken, J.P. Recorded Oct. 11, 1838. (FHL film 1,601,854)
E-67: 6 Jan. 1840, John Dement and Mary L. his wife of Jo Daviess Co. IL to James Duncan of Madison Co. same state, for $1926 paid, sell and quit claim lot, piece or parcel of ground in town of Galena, county afsd, 20 feet 4 inches on Main Street and running through to Bench Street, bounded beg. on said Main Street 20 feet 4 inches from SW corner of Lot No.18 on Main Street in Galena, then westwardly for depth to Bench Street, ... parallel line with southern line of said Lot No.18 on South Alley socalled, then northwardly with Bench Street 20 feet 4 inches, then eastwardly to Main Street to where the same will strike a point 20 feet 4 inches from the place of beginning, then with said Main Street to the place of beginning, with appurtenances, which lot is the middle portion of Lot No.18 lately sold at public sale by George H? (W?) Campbell, Benjamin C.H? Cyr and William A. Jorden, Commissioners in Partition between said James Duncan, John Dement and Evan Rice, when said John Dement became the purchaser, conveyed by said Commissioners by deed 6 instant. /s/ John Dement, Mary L. Dement. Wit. John G. Potts. Ack. 20 Feb. 1840 before John G. Potts, J.P., Jo Daviess Co. Recorded 22 Feb. 1840. (FHL film 1,601,854)
E-429: (headed: John Sperry Bill of sale Samuel C. Duncan) John Sperry of Jo Daviess Co. IL for $100 paid, sell to S.? (J?.) C. Duncan of same place, one span of bay rone stud horses now & heretofore oaned? by me, provided said Sperry will pay a note bearing even date for $100 made by said Sperry and payable to J.C. Duncan on 1st June next, then this void, in default, said J.C. Duncan may take possession of the horses ... and until default, said Sperry is to remain in possession of said horses. 28 June 1841. (MAD: ?? 1840?) /s/ John Sperry. Wit. Davis Divine. Recorded 18 June 1841. (FHL film 1,601,854)
Book F, 1841-1843 and Book G, 1843-1846 (FHL film 1,601,855 items 1 and 2)
F-38/39: 22 Dec. 1841, James Duncan of Madison Co. IL to Isaac A. Letchin of City of St.Louis, MO, for $5,200 paid, sell piece or parcel of land in town of Galena, Jo Daviess Co. IL, Lot No.18 between Main and Bench Streets fronting 61 feet on both of said streets, with appurtenances, warrant title. /s/ James Duncan. Wit. Wm. T. Brown. Act. 7 Jan. 1842 before Wm. T. Brown, Clerk of Madison Co. IL Circuit Court. Recorded 17 Jan. 1842. (FHL film 1,601,855)
F-72/73: 15 Jan. 1840, William Townsend and Louisa Townsend his wife of Jo Daviess Co. IL to Samuel C. Duncan of Jo Daviess Co. IL, for $54 paid, sell piece or parcel of land in Jo Daviess Co. IL, designated on the plat of the survey of the Town of Galena as being Lot No.3 in Block No.67 in Townsend's Alteration of Lots No. 1,2,3,4 & 5 in Block No.62 in said town of Galena, per plat of alteration recorded in Jo Daviess Co. in ?? page 352? and fronting 50 feet on Ridge Street, with appurtenances, warrant title. /w/ William Townsend, Louisa Townsend. Wit. Samuel Adams, John G. Potts. Ack. 15 Jan. 1842 before John G. Potts, J.P. Recorded 4 March 1842. (FHL film 1,601,855)
F-139/140: 29 April 1842, Samuel C. Duncan of Jo Daviess Co. IL to Philip F. Schirmer of afsd, for $5 paid, sell lot in City of Galena, county afsd, Lot 36, on Main Street and running back to Bench Street, bounded on north by a ?? to Hennigs? on the south by a lot belonging to A. Keilby, provided Samuel C. Duncan shall pay said Philip F. Schirmer $1280 on 12th March 1853 together with interest in a note or obligation dated 11 March 1842 ... this void. /s/ Samuel C. Duncan. Wit. John E. Smith. Ack. 13 May 1842 before John G. Potts, J.P. Recorded 17 May 1841. [written sideways] Ack. payment Jan. 15, 1845, P.F. Schirmer. (FHL film 1,601,855)
F-143: That Wayman Crow and Joshua Teirs? at Circuit Court of Jo Daviess Co. of July 1837 recovered judgment against Peter W. Bellingell? for $1216.23 and costs, upon which a writ of venditioni ... issued 4 Nov. 1840, the sheriff to execute, and also Hezekiah H. Gear? at Oct. term recovered a judgement against Peter? W. Bellard? for $336.40 with costs of suit, execution issued 4 Nov. 1840 to sheriff, the Sheriff levied upon the lot and same was struck off and sold to Samuel C. Duncan and Philip F. Soliman?, the highest bidders, and Philip T?. Schimer? having assigned his interest to Samuel C. Duncan, now Alexander Young, Sheriff, ... grant to Samuel C. Duncan the tract of land and lot of ground in Galena, Jo Daviess Co. IL, Lot No.36 fronting on Main Street and running back to Bench Street, being the lot formerly owned by said Belinvall?. 23 May 1840. /s/ Alexr. Young, Shff. Ack. 23 May 1842 before William H. Bradley, Clerk. Recorded 23 May 1842. (indexed as sold for $1220.16) (FHL film 1,601,855)
F-144/145: James Duncan of Madison Co. IL for $5200 paid by Isaac A. Letcher of St.Louis Co. MO, quit claim to said Isaac A. Letcher my interest in a lot in City of Galena, being 20 feet 4 inches on Main Street, running through to Bench Street, bounded beg. on Main Street 20 feet 4 inches from SW corner of Lot No.18 on Main Street in Galena, (more not copied) which is the same conveyed to James Duncan by John Dement and wife by deed 6 Jan. 1840 and recorded in Book E pgs. 66 & 67, warrant title. 23 May 1842. /s/ James Duncan. Wit. E. Hempstead, Tho. Melvill. Ack. before Thomas Mehill?, Notary Public, Jo Daviess Co. IL. Recorded 24 May 1842. (FHL film 1,601,855)
F-385: Whereas Philip F. Schinner did at June term of Circuit Court, Jo Daviess Co., A.D. 1841, recovered a judgment against Peter W. Ballingall for $2,134 and 64?/100 dollars and costs of suit, execution issued 1 Feb. 1842, Sheriff levied on lot of land and sold to Samuel C. Duncan and Philip F. Schirner? (Schiesner?), the highest bidders, and Philip F. Schinner? having assigned all his interest to said Samuel C. Duncan, now Alexander Young, Sheriff of Jo Daviess Co., have sold to Samuel C. Duncan lot of land in town of Galena, Jo Daviess Co. IL, Lot No.36 fronting on Main Street and running back to Bench Street, bounded... (not copied), with appurtenances. 23 May 1843. /s/ Alexr. Young, Sheriff of Jo Daviess Co. IL. Ack. 24 May 1843 before William H. Beadly, Clerk of Circuit Court, Jo Daviess Co. IL. Recorded 24 May 1843. (FHL film 1,601,855)
G-16/17: 13 Jan. 1844, Henry J. Stouffer and Sarah L. Stouffer his wife of Jo Daviess Co. IL to Hannah Duncan of Jo Daviess Co. IL, for $500 paid, sell piece or parcel of land in Jo Daviess Co. IL, Lots 14 and 15 in Block No.4 in City of Galena, state afsd, with appurtenances, warrant title. /s/ H.J. Stouffer, Sarah L. Stouffer. Ack. by Henry J. Stouffer 13 Jan. 1844 before Charles G. Thomas, J.P. Ack. by Sarah L. Stouffer, wife of Henry J. Stouffer, on 28 March 1844 before Charles G. Thomas, J.P. Recorded 28 March 1844. (FHL film 1,601,855)
Book M, 1850-1851 (FHL film 1,601,857 item 1)
M-13/14: 23 July 1849, John C. Duncan and Martha Ann his wife to Thomas and William Pooley, for $32 paid, sell their interest in lot or parcel of land in Jo Daviess Co. IL, upon the west half of NW 1/4 Sec.32 Twp.29 Range 2E commencing at SW corner and running east with south boundary 17 chains and 50 links then north 70 deg. west 18 chains & 37 links then south 6 chains & 23 links to the beginning, containing 5 acres and 47/100 more or less, with appurtenances, warrant title. /s/ John C. Duncan, Martha Ann Duncan. Wit. Robert Shaw. Ack. 23 July 1849 before Robert Shaw, J.P. Recorded 2 March 1850. (FHL film 1,601,857)
M-39/40: 7 March 1850, Wesley H. Duncan and Margaret Duncan his wife of Jo Daviess Co. IL to Charles Berryman of Lafayette Co. MO, for $560 paid, sell lots or parcels of land in Jo Daviess Co. IL, part of E 1/2 of NE 1/4 Sec.26 Twp.28N Range 2E commencing at SE corner of said quarter section, then north 160 rods, then west 10 rods, then south 160 rods, then east 10 rods to the beginning containing 10 acres more or less, also W 1/2 NW 1/4 Sec.33 Twp.29 Range 2E, with appurtenances, warrant title. /s/ Wesley H. Duncan, Margaret Duncan. Wit. Robert Frazer. Ack. before James Billings, J.P., 7 March 1850. Recorded 8 March 1850. (FHL film 1,601,857)
M-40/41: 28 Jan. 1850, Wm. McMath to Wesley Duncan, for $37.50 paid, sell lot or parcel of land in Jo Daviess Co. IL, part of E 1/2 of NE 1/4 Sec.26 Twp.28N Range 2E, commencing at SE corner of said quarter section, then north 160 rods, then west 10 rods, then south 160 rods, then east 10 rods to the beginning, containing 10 acres more or less, warrent title. /s/ Wm. McMath. Wit. J.A?. Montgomery. Ack. before Robert Shaw, J.P., 25 Feb. 1850. Recorded March 8, 1850. (FHL film 1,601,857)
M-82/83: 19 March 1850, John C. Duncan and Martha A. Duncan of Jo Daviess Co. IL to John Linn of same county and state, for $350 paid, sell lot or parcel of land in Jo Daviess Co. IL, all of NW 1/4 Sec.32 Twp.27N Range 2E, not heretofore conveyed by me to Thomas and William Pooley by deed July 23, 1849 recorded Book M pages 13 & 14, and that part conveyed to Westley Duncan by deed Aug. 7, 1849, containing all of said quarter saving 58 acres more or less conveyed to said Westly Duncan and 5-47/100 acres to Pooleys as afsd, with appurtenances, warrant title. /s/ John C. Duncan, Martha A. Duncan. Wit. Robert Shaw. Ack. before Robert Shaw, J.P., 20 March 1850. Recorded March 23, 1850. (FHL film 1,601,857)
Book T, 1854 (FHL film 1,601,859 item 3)
T-56/57: 26 Jan. 1854, Charles Duncan "(now being in California)" by his attorney in fact Adeline Duncan, and the said Adaline his wife in her own name of Johnson Co. MO, to Henson Foster of Jo Daviess Co. IL, for $465 paid, sell lots or parcels of land in Jo Daviess co. IL, portion of Sec.24 Twp.27N Range 2E of 4th P.M., to wit, lots No.6 and 7 per plat of survey of SE 1/4 Sec.24 Twp.27 Range 2E afsd, caused to be made by the trustees of schools in said Twp.29 and filed in the office of the School Commissioner of Jo Davies Co. IL, said lot 6 being NW 1/4 of said SE 1/4 Sec.24 and said lot 7 being SW 1/4 of said SE 1/4 of said Sec.24, and containing together 80 acres more or less, with appurtenances, warrant title. /s/ Charles Duncan by his attorney in fact Adeline Duncan, Adeline Duncan. Wit. Wesley H. Duncan, Francis W? (M?) Green. Ack. by Adeline Duncan, attorney in fact of Charles Duncan, 13 Feb. 1854, before Dennis Denham, J.P., Johnson Co. MO. Certification by James McConn, Clerk of Johnson Co. MO Court, for Dennis Denham, 14 Feb. 1854. Recorded March 25, 1854. (FHL film 1,601,859)
T-59/60: Charles Duncan of Eldorado Co. CA appoint Adeline Duncan "(my wife)" of Jo Daviess Co. IL my attorney to enter into and take possession of all ... lands, ... and real estate whatsoever in IL or elsewhere whereof I am now or hereafter may be entitled or interested in, ... and also for me and in my name to grant, bargain, sell and convey the same or any part thereof for such sum and price and such terms as to her shall seem meet, and in my name to execute deeds for the same. In the mean time to lease and until the sale to let for the best rent that can be gotten, to receive rents etc., and such sums of money which shall become due to me ... and perform anything that may be necessary as I were personally present ... and I confirm all my said attorney shall do ... 26 Sept. 1853. /s/ Charles S. Duncan. Ack. 26 Sept. 1853 by Charles S. Duncan before Josiah Gordon, Clerk, El Dorado Co. CA. Recorded 25 March 1854. (FHL film 1,601,859)
Book 8, 1859 (FHL film 1,601,865 item 2; SLC 12/14/2013)
8-536/537: 13 Sept. 1859, Joseph Broker and Gurtrude Broker his wife, Henry Broker and Maria Broker his wife, all of Stearns Co. MN, to Michael Duncan of Jo Daviess Co. IL, for $120 paid, sell lot or parcel of land in Jo Daviess Co. IL, NW 1/2 Lot No.7 in Block No.64 fronting 50 feet on Meeker Street per Plat of City of Galena in said Jo Daviess Co. IL, warrant title. /s/ Joseph Broker, Gertrude Broker, Henry Broker, Maria Broker. Wit. Wm. J. Parsons, Andrew Gairing. Ack. before Wm. J. Parsons, Notary Public, Stearns Co. MN, (blank) Sept. 1859. Recorded Oct. 5, 1859. (FHL film 1,601,865)
"Reports of cases argued and determined in the Supreme Court of the State of Illinois" ("Illinois Reports" [Vol.] 5 SCAMMON) by J. Young Scammon, Vol.5, pgs.452 to 453 (California State Law Library, Sacramento, 12/2003; see Hopkins Co. KY deed)
JAMES DUNCAN appellant v. WILLIAM N. WICKLIFFE appellee; Supreme Court of Illinois, at Springfield; 5 Ill. 452; 4 Scam. 452; December, 1843, Decided.
Appeal from Madison. THIS cause was heard in the Madison circuit court, at the May term, 1843, before the Hon. JAMES SEMPLE.
TREAT, Justice, delivered the opinion of the court: Wickliffe filed his bill in chancery against James Duncan, alleging, in substance, that in October, 1841, he purchased of the defendant a lot in the town of Collinsville, and paid him the full amount of the purchase money; that the lot had been previously conveyed by one Stoker to Coleman Duncan, a brother of the defendant; that the complainant took a bond from the defendant and Coleman Duncan, by which they agreed to convey the lot to him, on or before the 1st of March, 1842. The bill further charges that Coleman Duncan died intestate in January, 1842, leaving the defendant his only heir at law; that the deed from Stoker to Coleman Duncan was never recorded, and that after the death of his brother, the defendant caused the deed to be surrendered and took from Stoker a conveyance to himself, which had not been recorded. The bill then charges a refusal on the part of the defendant to convey, and concludes with a prayer for a specific performance of the contract.
The answer of the defendant admits the purchase and the making of the bond, but denies full payment of the purchase money; admits that the legal estate in the lot was in Coleman Duncan, by the conveyance from Stoker; admits that Coleman Duncan died intestate, but states that he left, as his heirs at law, five brothers and sisters, including the defendant; admits the procurement of the deed from Stoker in the manner charged, and offers to convey the lot on payment of the purchase money. There was a replication to the answer. Depositions were taken; but the testimony relates entirely to the subject of the payment of the purchase money.
On the final hearing, the court decreed that the defendant should, within thirty days, cause his deed from Stoker to be recorded, and convey the lot to the complainant, with covenants of warranty, and pay the costs of the suit. To reverse that decree an appeal is prosecuted.
The principal question arising from the assignment of errors is whether the necessary parties were before the court; and that question will only be considered.
It is asserted by the complainant, and admitted by the defendant, that the legal title to the premises in dispute was conveyed by Stoker to Coleman Duncan, and that the latter died without parting with the estate. The delivery of the deed absolutely vested the legal estate in Coleman Duncan, and on his decease, it descended to, and was vested in his heirs at law. The subsequent destruction or surrender of the deed did not operate to revest the title in Stoker. On the death of Coleman Duncan, therefore, the legal title became vested in his heirs. The bill alleges that the defendant was his sole heir. The answer denies this allegation, and insists that there were four other heirs beside the defendant, and gives their names and places of residence. This statement of the answer is directly responsive to a material allegation of the bill, and being uncontradicted by the proof, is to be considered as true. This establishes the fact, that the legal estate was in five persons, as tenants in common.
In this proceeding, instituted for the only purpose of enforcing the specific performance of an agreement made by Coleman Duncan, the former owner, to convey the premises to the complainant, but one of these persons is made a defendant. The others ought certainly to have been made parties, and an opportunity afforded them, of contesting the fact, whether their ancestor had done an act by which their interest in the lot could be divested. On the filing of the answer, the complainant should have amended his bill, by making these individuals defendants, and thus have brought before the court all of the parties interested in the subject matter of the litigation.
The decree of the circuit court is reversed, and the cause remanded for further proceedings. The complainant has leave to amend his bill by making new parties. The costs of this appeal are to be paid by the complainant.
"Reports of cases argued and determined in the Supreme Court of the State of Illinois" ("Illinois Reports" [Vol.] 7 GILMAN) by Charles Gilman, Vol.II; Vol.7, pg.591 to 595 (California State Law Library, Sacramento, 12/2003)
PETER W. BELLINGALL appellant v. HANNAH DUNCAN appellee et al; Supreme Court of Illinois, at Springfield; 7 Ill. 591; 2 Gilm. 591; December, 1845, Decided.
Appeal from Jo Daviess. Ejectment in the Jo Daviess circuit court, originally brought by Samuel C. Duncan against the plaintiff in error. During the progress of the cause, the death of the said Duncan was suggested, and his widow and heirs, now the defendants in error, were made parties to the suit. Bellingall, at the March term, 1845, prayed for a change of venue out of the circuit, alleging that the presiding judge, the Hon. Thomas C. Browne, was prejudiced against him. The petition was granted on terms, which with the other proceedings in the cause, are stated in the opinion of the court. (MAD: Arguments of counsel are omitted here)
(opinion by:) TREAT, J. This was an action of ejectment commenced in the Jo Daviess circuit court, by Samuel C. Duncan against Peter W. Bellingall, to recover the possession of lot number thirty-six in the city of Galena. After issue joined, the death of Duncan was suggested, and the suit was revived in the names of his widow and heirs. A trial was then had, which resulted in a verdict and judgment in favor of the plaintiffs. At the next term, Bellingall having paid the costs, the court on his motion vacated the judgment and awarded a new trial. At the succeeding term, Bellingall presented a petition, alleging that the judge was prejudiced against him, and praying for a change of venue to some other circuit. The court ordered the venue to be changed to the county of Ogle, on the condition that the defendant should pay the costs attending the change of venue; and should cause the papers and a transcript of the record to be filed in the circuit court of Ogle county, at least fifteen days before the first day of the next term thereof. At the next term, on the motion of the plaintiffs founded on affidavits showing the non-payment of the costs, and the failure to transmit the papers to the Ogle circuit court, the court ordered the cause to be reinstated on the docket of the Jo Daviess circuit court for trial, to which decision the defendant excepted. The cause thereupon proceeded to a second trial, with the same result as in the first. The defendant tendered a bill of exceptions and prosecuted an appeal to this court.
Numerous errors have been assigned, one only of which will be considered. That relates to the decision of the court, in reinstating the cause on the docket after the change of venue was ordered. The statute, respecting the change of venue, requires the clerk to certify and transmit the papers and record to the court to which the cause is sent. It further provides, that the expenses attending a change of venue in civil cases, shall be taxed against the petitioner; and if he neglect or refuse to pay them within fifteen days after the change of venue is awarded, the clerk is authorized to issue a fee bill against him for their collection. By virtue of these provisions, the clerk is to transmit the papers, and not the petitioner. The expenses are to be taxed against him, and if not voluntarily paid, are to be collected as other costs. The court had no authority to impose on the defendant the performance of these acts as conditions precedent to the change of venue. The change of venue was fully consummated by the order of the court. The terms and conditions it annexed were unwarranted and void, and the defendant was at full liberty to disregard them. The circuit court erred, therefore, in reinstating the cause on the docket, and consequently all of the subsequent proceedings were unauthorized and irregular, and must be reversed.
Other questions of importance have been discussed with great ability, but from the confused and unsatisfactory manner in which they are presented by the record, we refrain wholly from considering them.
The judgment of the circuit court is reversed with costs, and the cause is remanded to the Jo Daviess circuit court with instructions, to cause the record and papers of the case to be certified and transmitted to the Ogle circuit court.
"Reports of cases argued and determined in the Supreme Court of the State of Illinois" ("Illinois Reports" [Vol.] 8 Gilman) by Charles Gilman, Vol.III; Vol.8, pg.477 to 481 (California State Law Library, Sacramento, 12/2003)
PETER W. BELLINGALL appellant v. HANNAH DUNCAN et al appellees; Supreme Court of Illinois, at Springfield; 8 Ill. 476 [477]; 3 Gilm. 476; December, 1846, Decided.
Appeal from Jo Daviess County Court. EJECTMENT, in the Jo Daviess county court, brought by the appellees against the appellant, and tried before the Hon. HUGH T. DICKEY without the intervention of a jury, at the July term, 1846, when the case was taken under advisement. Judgment was rendered in favor of the plaintiffs below at the November term following.
Opinion of the court by TREAT, J. This was an action of ejectment brought by the devisees of Samuel C. Duncan, the appellees in this court, against Peter W. Bellingall, the appellant, to recover the possession of part of lot thirty-six in the town of Galena.
On the trial before the court, the appellees introduced the record of a judgment rendered in the Jo Daviess circuit court, on the 15th of July, 1837, in favor of Crow & Tevis, and against the appellant, for $1216.23 and costs; also an execution issued thereon, on the 10th of July, 1838, on which the sheriff made this return: "Levied on one house and lot in the town of Galena, as the property of P. W. Bellingall, this 20th of July, 1838; offered the above described property for sale at public auction, this 10th of October, 1838; no bidders; not satisfied. M. Hallett, sheriff." The appellees also read in evidence a writ of venditioni exponas, issued on the 4th of November, 1840, describing the property as in the endorsement on the execution, and commanding the sheriff to proceed and sell the same, and on which the sheriff made this return: "Sold the within described property to Duncan & Schermer for two thousand and ten dollars, and paid the within judgment and costs, being $1526.17; and also paid judgment and costs in favor of H.H. Gear, being $378.35, and offered balance, $105.77 to the defendant, and he refused to receive it. Alex'r Young, sheriff." The appellees then proved by parol that the lot levied on and sold was lot thirty-six in the town of Galena. They then introduced a deed from the sheriff to Duncan for the premises in question, bearing date the 23d of May, 1842, and which recited an assignment by Schermer to Duncan of his interest in the certificate of purchase. The appellant objected to all of the foregoing testimony.
The appellees next read in evidence, the record of a judgment recovered by Schermer against Bellingall in the Jo Daviess circuit court, on the 22d of June, 1841, in a proceeding by scire facias to foreclose a mortgage, for $2134.84, which judgment directed a sale of the mortgaged premises, but omitted to describe them; also, a special execution issued thereon, on the 1st of February, 1842, directing a sale of lot thirty-six in the town of Galena, on which the sheriff made this return: "Satisfied in full by plaintiff purchasing the within described property. March 23d, 1842. Alex'r Young, sheriff." The appellant objected to the introduction of the execution and return, because no levy appeared to have been made. The appellees next introduced the sheriff's deed under this sale, bearing date the 23d of May, 1843, conveying the premises to Duncan, and reciting an assignment by Schermer to Duncan of his interest in the certificate of purchase. The appellant objected to the introduction of this deed for the reason, that Schermer had not redeemed the premises from the previous sale. The foregoing was all of the testimony material to be referred to in the decision of this case. The court found the issue in favor of the appellees, and they had judgment accordingly. Bellingall prosecuted an appeal to this court.
Two points are made by the counsel for the appellant: first, the sale by the sheriff on the venditioni exponas was illegal and void; and second, the special execution on the second judgment was unauthorized, the judgment omitting to describe the mortgaged premises.
First. If a levy is made during the lifetime of an execution, the property may be sold afterwards. In the present case the levy was made in due time by one sheriff; the property was sold by his successor in office. Had the latter the right to make the sale? It is clear that he did not derive this right from the venditioni exponas. Such a writ confers no new authority on the sheriff. Its only office is to compel him to proceed with a sale, which he already has the power to make. The common law rule is, that the officer who levies an execution must make sale of the property and receive the money; or in other words, the officer who commences the service of the process must complete the execution thereof, and this whether he continue in office or not. The doctrine, however, only related to sales of personal property, for at common law, real estate was not subject to sale on execution. Let us inquire into the rule on which the rule was founded, and see if they are applicable to sales of land on execution. Where goods are levied on, the possession is transferred from the debtor to the sheriff. The sheriff acquires a special property in them, and may maintain trespass or trover if they are taken from his custody. If the goods are of sufficient value to pay the debt, the levy, until disposed of, is a satisfaction of the judgment. If they are lost through the neglect or fraud of the sheriff, the creditor must look to him and not to the debtor for their value. On a sale, the sheriff delivers the possession to the purchaser. It seems highly proper that the officer making the levy should retain the possession of the property and perfect the sale. Unless the goods came into the possession of the new sheriff, he has no control over them, and of course no authority to sell them. There is an essential difference in the case of a levy on real estate. The land remains in the possession of the debtor, not only until the day of sale, but until the time allowed him by law to redeem has expired; and even then the sheriff can not divest him of the possession, but the purchaser is driven to his action of ejectment to recover it. The common law authorities being confined to sales of personal property, we consider ourselves at perfect liberty to adopt such rule in relation to sales of land on execution, as we may deem best adapted to the circumstances of the country and the interests of its citizens. There seems to be no good reason why the sale should be confined exclusively to the sheriff making the levy; but, on the contrary, there are some cogent reasons why his successor should be permitted to do it. It is wholly immaterial to the debtor which of them is to make the sale. He is equally protected in either case. Much inconvenience may arise if the new sheriff is not allowed to complete the service of the process commenced by his predecessor. The old sheriff may die or remove from the bailiwick before he has sold the land, and if his successor is not allowed to make the sale, the creditor may be greatly delayed and injured in his remedy. In order to give the new sheriff any authority to collect the judgment, he might be compelled to have the levy set aside, and in that way lose the benefit of the lien acquired by the levy. His lien might be defeated for the want of an officer authorized to enforce it. In the case of a levy on personal property, the creditor might have a remedy on the official bond of the sheriff; but in the case of a levy on land, he might have no effectual remedy. We are disposed, therefore, to decide that the new sheriff may sell real estate levied on by his predecessor in office. The sale by either would be valid. Where the execution has been returned with an indorsement of a levy on real estate, and the creditor desires a sale, he may at his election sue out a venditioni exponas, directed to either the sheriff who made the levy, or his successor in office. Where the former sheriff retains the custody of the execution, the vendi should be directed to him; or the creditor may procure the return of the process, and then direct the vendi to the new sheriff. It is the opinion of the court that the sheriff in office when the sale took place, had ample authority to make it, and that his deed vested in the purchaser whatever title the judgment debtor had in the premises at the date of the levy.
Second. In relation to the second question, it is insisted that the evidence fails to show that any judgment was rendered against the premises in dispute. The judgment may be technically defective in not describing the mortgaged premises, but this is, at most, an irregularity which can not vitiate the judgment in a collateral proceeding. It was undoubtedly competent for the appellees to have shown, by the mortgage and scire facias, that the execution properly described the premises mortgaged. If this was the fact, the title under the judgment is valid. No exception was taken to the introduction of the judgment. The execution was objected to, because no levy had been made; and the sheriff's deed was objected to, only for the reason that the mortgagee had not redeemed from a former sale. The appellant did not raise the objections in the court below which he now interposes here. He is not at liberty to make them for the first time in this court. If he had raised these objections on the trial, or even made a general objection to the proceedings, the appellees might have obviated all difficulty, by producing the mortgage and scire facias, showing that the premises mortgaged were correctly described in the execution.
The judgment of the Jo Daviess county court is affirmed, with costs.
"Reports of cases argued and determined in the Supreme Court of the State of Illinois from November term 1854 to June term 1855, both inclusive" ("Illinois Reports") by E. Peck, Counsellor at law, Vol.16, pg.373 to 380 (California State Law Library, Sacramento, 12/2003)
PETER W. BALLINGALL plaintiff in error v. WILLIAM BRADLEY, administrator, etc., el al, defendants in error; Supreme Court of Illinois, at Ottawa; 16 Ill. 373; June, 1855, Decided.
Error to Rock Island. At the April special term, 1848, of the Circuit Court of Jo Daviess county, complainant filed his bill for relief, averring that on the 11th of January, 1837, complainant executed a mortgage to Hezekiah H. Gear, on lot No. 36, on west side of Main street, in Galena, to secure payment of the sum mentioned in mortgage. Afterwards Gear commenced an action on the mortgage, and decree of foreclosure for $336.40 was rendered at the October term, 1840.
Afterwards complainant took the case to the Supreme Court on writ of error, and at the December term, 1842, the decree of Circuit Court was reversed, and mortgage remained unforeclosed.
At July term, 1837, of said Circuit Court, Crow and Tevis recovered a judgment against complainant for $216.23, and on the 4th of November, 1840, a writ of venditioni exponas issued on the last judgment, and a special execution on the first judgment, dated the same day, both directed to sheriff of said county, and upon both of which the sheriff, on the 26th of January, 1841, sold the above property, as complainant, to Scheimer and Duncan for $2,010, in full payment of the judgments, interest and costs. On the 230 of May, 1842, sheriff made deed to purchaser Duncan, which recites that Scheimer assigned his interest in certificate of purchase to Duncan. October 21, 1837, complainant executed another mortgage on same property to said Scheimer for sum mentioned in mortgage, upon which judgment of foreclosure was entered at June term, 1841, against complainant for $2,134, in favor of Scheimer, upon which a special execution issued February 1, 1842, and the property thereon February 26, 1842, to Scheimer and Duncan for $2,296, in full satisfaction.
That on the 23rd of May, 1843, sheriff executed deed to Duncan.
After the first sale, and before June term of Circuit Court, 1841, while Duncan and Scheimer were jointly interested in the property under the first purchase, Scheimer, wishing to recover judgment in time to redeem from first sale as judgment creditor, and fearing a delay if complainant appeared to defend, agreed that if complainant would confess judgment for amount claimed in mortgage, and permit him to redeem as such judgment creditor, from the first sale, he would so redeem and save the property for complainant, after satisfying his indebtedness, interest and costs, assuring complainant that he only wished security for his debt, and after such satisfaction complainant might have the property. Complainant therefore allowed judgment to be rendered against him at June term, 1841, for $2,134, amount in mortgage.
Complainant relying on the said promise of Scheimer, did not redeem the property from the first sale, which he would have done had it not been for the promise of Scheimer, the property exceeding in value four or five times the amount of the first sale. Complainant, in pursuance of the agreement, paid over to Scheimer $105, surplus bid on first sale, and Kelly and Mason agreeing to pay to complainant, or order, $1,200 in 1841. Complainant transferred the claim Scheimer, and he accepted it without recourse, as part payment of his indebtedness. In consequence of the agreement with Scheimer, complainant took no further notice of the judgment against him in favor of Scheimer, and had no knowledge of the issuing of execution, sale and execution of sheriff's deed by virtue of said judgment, until after the date of the deed, which was owing to his reliance upon the agreement of Scheimer. And had he known of the second sale, and that the purchasers intended to retain the property for their benefit, he would have redeemed from both sales, the value of the property being double the amount of both sales and interest.
That Duncan, before either of the sheriff's deeds was made to him, and before the purchase by, or assignment to, him of any interest in the property by Scheimer, had notice of the agreement of Scheimer and complainant's reliance thereon.
That the agreement between Scheimer and complainant was made with the privity and concurrence of Duncan, and he purchased at first sale for the benefit of Scheimer.
That since January 26, 1842, up to this time, Duncan, and his representatives have continued in possession of the property, and received the rents and profits thereof.
The rents and profits were then, and are now, worth $1,400 or $1,500 yearly, out of which complainant could have paid all the indebtedness had he continued in possession.
At the time of sale, the property was worth $10,000, and it was capable of being conveniently divided into two parts either of which would have sold for sufficient to satisfy the executions, interest and costs.
That Duncan and Scheimer induced persons to stay away from the sale and refrain from bidding, which caused it to sell for less that it otherwise would.
These facts prevented complainant from paying the indebtedness. There has been no material alteration in the property since Duncan took possession. That he took possession to repay himself from the rents and profits, which has been done.
That the said Duncan and his representatives have received about $6,000 more than the purchase moneys paid by him and Scheimer, and all interest thereon; from the rents and profits, no part thereof having been received by complainant since January 26, 1842, which have now amounted to $10,000. That Duncan having no interest in the property, except under the sheriff's deed, on the 8th of December, 1842, made his will, devising all his real estate to his wife, now married to Brownell, and to his children, Sylvester F. and Edward C., Catharine Wirrell, married to Edward E. Sanders, Ann Duncan, married to Adam Tilford, Susan, now married to John Barton, Sarah J., now married to Samuel Gilbert, and Virginia, and made Scheimer and Daniel A. Barrows executors. Duncan died in August, 1843, without revoking the will, the children now surviving. After Duncan's death, widow had daughter Mary Duncan, and the children have no interest in the property except such as derived through Duncan. That Scheimer and Barrows relinquished executorship, and William H. Bradley was duly appointed and acted as administrator. Complainant, being remediless at law, prays that defendants may answer without oath, and an account to be taken, and if the rents and profits amount to the said purchase money and interest, the defendants, except Scheimer, Barrows and Bradley, be decreed to convey the property in fee simple to complainant. And if the rents and profits should fall short, then the same decree shall be made upon payment of the deficiency by plaintiff. Prays that subpoena may issue to the above named persons as defendants.
Bradley, administrator, etc., Barrows, Scheimer, Brownell and wife, Sanders and wife, Tilford and wife, Barton and wife, and Gilbert and wife, filed their joint and several answer, setting forth, after reservation, that they are informed and believe, that on the 11th of January, 1837, complainant executed to Gear a mortgage on the lot, as set forth in complainant's bill, and that complainant was seized thereof in fee simple. That at the October term, 1840, of the Circuit Court of Jo Daviess county, a judgment of foreclosure was rendered against complainant for $336.40. They are also informed and believe that Crow and Tevis, at July term of said court, 1837, recovered judgment against complainant for $1,216.23. That they are informed and believe that a writ of venditioni exponas issued on last judgment, on the 4th of November, 1840, and at the same time a special writ of fi. fa. issued upon the first judgment. That, by virtue of the said writs, the sheriff, on the 26th of January, 1841, sold the property mentioned in the complainant's bill, to Scheimer and Duncan, for $2,010 and judgments, interest and costs fully satisfied, and overplus of $105.77 paid to complainant. That sheriff executed certificate of purchase to Duncan and Scheimer, and Scheimer assigned his interest to Duncan. That on the 23d of May, 1842, sheriff executed deed to Duncan, as set forth in bill. That on writ of error, the Supreme Court, at December term, 1842, reversed the first judgment and remanded the cause, but no further proceedings were had thereon. That Duncan and Scheimer were not connected with Gear in that suit, and were bona fide purchasers for valuable consideration. Admit execution by complainant of the second mortgage and judgment thereon, as stated in complainant's bill, upon which judgment a special writ of fi. fa. issued February 1st, 1842, and the property was sold as stated in bill That certificate of purchase was given to Duncan and Scheimer, and Scheimer resigned his interest to Duncan. That on the 23rd of May, 1843, the sheriff executed a deed of the property to Duncan, as stated in bill. That defendants deny that Scheimer, for the reasons set forth in bill, or for any other reason, agreed with complainant that if he would allow judgment to be rendered against him for amount due on the last mortgage in time for Scheimer to redeem from the first sale, that he would so redeem for his benefit, after satisfying his indebtedness, and that Scheimer assured him all he wanted was security for this debt due him, and after satisfaction of the amount due him from the rents and profits, complainant might have the prop erty, as set forth, in the bill of complaint. Defendants deny that Scheimer ever made any agreement with him concerning said mortgage, judgment, redemption, property, or rents and profits, except as hereinafter stated. Defendants deny that complainant relied upon such supposed promises, and thereby permitted judgment, at the June term, 1851, to be rendered against him in favor of Scheimer, as set forth in bill, and did not redeem from the first sale by reason of such agreement. Deny that Scheimer received $105, or any other sum, in pur suance of such promise. Defendants deny that Scheimer received a claim of $1,200 against Kelly and Moran in 1841, in pursuance of any such arrangement, as stated in bill of complaint. And also deny that complainant, relying upon any such promise, did nothing in regard to the judgments and property, as set forth, and that complainant believed Scheimer and Duncan purchased for his benefit. They aver that the proceedings were open and legal, and that complainant's ignorance thereof did not arise from any promise of Scheimer. They deny that complainant could have redeemed, or procured to be redeemed, the property, and that it was worth double the amount of both sales, but aver that the property sold for its full value. They deny that Duncan had any notice or privily of agreement by Scheimer to complainant, or that such agreement existed. Also deny that Duncan, at first sale, purchased for the benefit of Scheimer, as stated by complainant, but aver that Duncan wished to become owner of the property, and that Scheimer purchased with the design of collecting amount due him and assigning his interest therein to Duncan. They deny the value of the property, as alleged by bill, but aver that it sold for a fair and reasonable sum. Also deny that the property could have been divided as stated, and aver that it would not have sold as well in portions as in a body. They deny lite fraud practised by Duncan or Scheimer, to induce persons to stay away from sale, or refrain from bidding, or to diminish competition, as charged by bill. Defendantsallege that Scheimer applied to complainant to get him to sign a power of attorney, to confess judgment in suit of Scheimer against him for foreclosure, in order to avoid cost, which complainant refused to do, but he made no defense to the suit, and judgment was recovered without this assent or assistance. That after judgment complainant proposed to pay Scheimer $100 per month until the amount due hint was paid, to which Scheimer assented, and promised upon full payment thereof to release complainant the property. That complainant paid only $100 in pursuance of such agreement, and that Scheimer on the 18th of June, 1845, repaid him the $100 and took receipt in full of all demands. This was the only agreement made by Duncan or Scheimer to complainant concerning the property, judgments, redemption or rents and profits, and they charge that the statements by complainant in relation thereto are false. They also state that after execution of sheriff's deeds to Duncan, he offered complainant the property upon payment of his money, interest and costs, which offer complainant did not accept. Defendants further state that the supposed promise or agreement of Scheimer or Duncan, as set forth in bill, was not in writing, and therefore it was void under the statute of Illinois, upon which defendants insist. Also deny complainant's claim to a reconveyance, but aver that Duncan took possession, as before stated, in his own right in fee simple.
The decree in this case was rendered by WILKINSON, Judge, at May term, 1852, of the Rock island Circuit Court, the case having been taken to that county by change of venue.
CATON, J. There is an apparent conflict in the testimony upon some points in this case, and especially as to the question whether any agreement was ever made between Scheimer and the complainant, that the former should redeem the property sold upon the first decree, and the venditioni exponas for the use and benefit of the latter. Several witnesses testify that both Scheimer and Duncan repeatedly stated that such an agreement had been made. This is positively denied by Scheimer, in his deposition, and the testimony of Smith is to the same point, and nearly as satisfactory, for he states circumstances which lead strongly to the conclusion that he would have known it, had there been such an agreement. There is no doubt that negotiations were had between the parties with a view to such agreement, but it is, to say the least, exceedingly doubtful whether they ever terminated in an actual agreement or understanding on the subject. It is highly probable also that Scheimer did entertain the intention of allowing the complainant to take back the property, should he be paid the amount of his debt, and the strong probability is, that the expression of such intention was understood by the witnesses as the admission of the existence of an agreement to that effect. It is the liability to such mistakes and misunderstandings, which renders it necessary and proper for courts to receive with great caution testimony of oral declarations for the purpose of establishing a contract.
Hence, too, the enactment of the statute of frauds. The subsequent conduct of the complainant, to the tenants in possession of the premises, is utterly inconsistent with his understanding of the existence of such an agreement as he now alleges.
But admitting that there was a parol agreement of the character alleged, it is very clear that it was never evidenced by any writing signed by the party to be charged. For the purpose of making out written evidence of the agreement, reliance is had upon a supposed letter written by Scheimer to the complainant, while he was absent in Scotland, and which letter is said to have been lost. Stevens testifies that after the complainant's return, he showed him such a letter, which was in English and in Scheimer's handwriting, with which he was acquainted. Stevens testifies that in that letter, Scheimer, after urging the complainant to send him money to enable him to redeem the property, stated in substance as follows: "for you know that under our agreement I am to save the property for you for your benefit." As to this letter, it is very clear that Stevens was mistaken in his recollection. The evidence satisfactorily establishes that Scheimer always conducted his correspondence in French, and that he never wrote a letter in English in his life, and that whenever it was necessary for him to correspond in English, he got another to write for him. The witness Smith states that he was on the most intimate and confidential terms with Scheimer. That he was his partner in business, and acquainted with his confidential and private transactions, and wrote all his English letters for him. He states that Scheimer received a letter from the complainant, written in New York, when on his way to Scotland, stating that his sister would assist him to money "to amount that will save the property," and requesting to be informed "what kind of money will be required to satisfy the demand." To this letter, Smith tells us, that he "replied in the name of Scheimer stating that any money current in Scotland would be current here, and informing of his family's health. Nothing more."
This was undoubtedly the letter which Stevens saw, and it is very certain that it was not in Scheimer's handwriting, although it is very probable that he signed it himself, as we may understand from Smith's testimony. Under the circumstances, Smith's recollection is much more to be relied upon than Stevens', as to the contents of this letter. Smith wrote the letter, and was familiar with the subject to which the correspondence related, and he states that Scheimer never at any time told him that he had any agreement with the complainant that he should have a right to redeem the land, and there can be no doubt that had the letter contained the clause which Stevens thinks it did, that Smith must have recollected it. The letter, as written, may raise the presumption that Scheimer was disposed or willing to let the complainant have the land, by his refunding the money, or satisfying the claim, but it does not show that an agreement subsisted between them that he should have the right to do so. Laying out of question the want of any consideration to support such an agreement, we cannot hesitate to say, that there is no such written evidence of the agreement alleged in the bill, as will take it out of the statute of frauds.
The decree of the circuit court dismissing the bill, must be affirmed.
Madison Co. IL Deed (SLC 12/12/2013)
11-148: No.123. 7 Feb. 1835, Henry Scott of Clinton Co. IL to John C. Smith and James Duncan of Joe Davisse Co. IL, for $492 paid, sell tracts of land or lots of ground in Madison Co. IL, commencing at a corner 90 rods east from SW corner of Sec.16 Twp.5N Range 9W, running from thence east along the southern boundary of said section 50 rods, then north 320 rods, then west 50 rods, then south 320 rods to the beginning corner, making the survey to include 100 acres; also one equal undivided half of SW 1/4 Sec.9 Twp.5N Range 9W containing 47-3/100 acres, with appurtenances, warrant title. /s/ Henry Scott. Wit. F.Y. Ewing. Ack. 7? Feb. 1835 before James W. Berry, Clerk of Circuit Court of Fayette Co. IL. (recording date not given on this page) (FHL film 484,054)
Hopkins Co. KY Deed (FHL film 555,290)
7-143: 3 June 1834, Coleman Duncan of Hopkins Co. KY to James Duncan of town of Galena [Jo Daviess Co.], IL, for $100 which was paid in discharge of a mortgage given by said Coleman Duncan in 1832 to Benjamin Warren?? for restitution? of debts; Coleman conveys to James Duncan interest in land supposed to contain between 150 and 200 acres, being Coleman's undivided half part of land in Hopkins Co. devised by Jesse Duncan, father of said Coleman & James Duncan, and by the will supposed to contain 300 acres; the intent hereof being to convey Coleman's half of the land to James. No wife, no wit.
1878 "The History of Jo Daviess County, Illinois : containing a history of the county, its cities, towns, etc., a biographical directory of its citizens, war record of its volunteers in the late rebellion, general and local statistics, portraits of early settlers and prominent men, history of the Northwest, history of Illinois, map of Jo Daviess County, Constitution of the United States, miscellaneous matters, etc." pub. Chicago: H.F. Kett & Co. (LH8171, HeritageQuest images 2/2007 & 5/2007)
Pg.663, Warren Twp: Duncan, Frederic, sexton; Warren.
Pg.718, Dunleith Twp: Duncan, Samuel, laborer; Dunleith.
"Portrait and biographical album of Jo Daviess and Carroll Counties, Illinois : containing full page portraits and biographical sketches of prominent and representative citizens of the county, together with portraits and biographies of all the governors of the state, and of the presidents of the United States." by John A. Rawlins, M.Y. Johnson, Adamx; pub. Chicago: Chapman Bros., 1889, 1010 pgs. (LH11731, HeritageQuest images 4/2007; FHL film 934,989 item 1)
Pg.226-228: Jo Daviess Co. - Hon. JAMES BAYNE, J.P. for 25 years, Hanover Township & city property. Judge Bayne first set foot upon the soil of Illinois 1853 ... native of city of Philadelphia, PA, and was born Feb. 27, 1826. He lived there until age 10, then with parents to Newark, New Castle Co. DE, until 1853 ... married in Newark, Del., July 15, 1847, to Miss Mary J. Miller, born in New Castle County that State, Sept. 8, 1820, dau. of John and Margaret (Scott) Miller, natives of MD and are now deceased. ... Five children to our subject, four now living, James, Robert, Charles, and Mary. Charles M., study of law in the Chicago School, now practicing in Raton, New Mexico. He married Miss Lillian Duncan. ... Robert Bayne, the father of our subject, was likewise a native of Philadelphia, Pa., and born May 10, 1801. He lived there until 1837, engaged mostly as a shoemaker, and in the meantime was married to Miss Ann Duncan. Thence he removed to Delaware, where he engaged in the boot and shoe trade ... Justice of Peace, Notary Public, and other offices. Spent the last years of his life in comparative retirement at Newark, Delaware. To the parents of our subject were born 8 sons and 1 daughter, of whom five sons and the daughter grew to mature years. Robert, Nathaniel, and Samuel served as soldiers in the late Civil War. The father going to visit them contracted army-fever and died soon after his return home. The mother, Mrs. Ann (Duncan) Bayne, was also born in Philadelphia and is the descendant of an old family, who had settled in Pennsylvania during the Colonial days. Her father, William Duncan, spent his last days in Philadelphia. ....
END
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