CLARK CO. KY
COURT RECORDS
 

Clark Co. KY County Court Records (from Louis Boone 1984 and 1986; other County Court records have been microfilmed on FHL films 1,490,680 to 1,490,682)
   1795-1801 (FHL film 1,490,680?; old FHL film 33978, indexed)
      Pg.98: 8? Nov. 1796; James Duncan age 40? years; John Strode in 1780 called upon the inhabitants of Strode Station ... boundary lines.
      Pg.99: 8? Nov. 1796; James Duncan, aged 46, agrees to the boundary. (no date; next entry is 9 Nov. 1796)
   1801-1804 (FHL film 183,186)
      Pg.132: 25 Feb. 1799, to Dan Duncan for goods 0.18.0. (MAD: ? purchased items ???)
      Pg.257: Dec. 1803, Joshua Duncan and others help keep road in repair from Brambletts to county line.
      Pg.269: Feb. 1804, on motion of John Roundtree, it is ordered that Dillard Collins, Thomas Burrus, Joseph Duncan and James Duncan Esq. settle and adjust all accounts with said Rountree as guardian of Polly Dennis, infant orphan of John Dennis decd, and make report to the court.
      Pg.276: Feb., 1804, Samuel Arnett is appointed guardian to Rachel and Polly Arnett, infant orphans of Abijah Arnett, decd, whereupon he together with Thomas Arnett Jr. his security entered into and acknowledged their bond in the penalty of $1500, conditioned as the law directs.
         (LB: July 1815, Thomas Duncan guardian of Abijah Duncan)
         (LB: Somerset Co. MD, Thomas Duncan listed in deeds along with Abijah H. Duncan; deeds not located 9/1986 -- possibly line of Joseph Duncan?)
      Pg.277: Feb. 1804, James Duncan and others to oversee road.
   1812-1824; pages not numbered (no index) (FHL film 183,187):
      July 1814, J?.L?. Duncan to settle with --?-- Duncan, guardian to John Brooks, orphan of A. Brooks. Abijah Brooks decd. father; other Brooks orphans in other families.
      May 1815, Ordered that R. Arnold Capt. be appointed patroler in the district with Charles Duncan, Thomas Burris, John Williams, Shadrack Jordon for 12 hours each month.
      July 1815, Ordered that Thomas Duncan be appointed guardian to Abijah Duncan for certain purposes ?yearly ?security in penalty of $25 with Archibald Brostic?, John Leaky.
      Oct. 1815, Admin. is granted Thos. Warnall on the estate of Joshua Duncan decd. who made oath hereto ... whereupon he together with John Braston? and Smallwood Ecton Jr. in penalty of $10,000.
      Sept. 20, 1815, Ordered that John Donaldson, Thomas Wright?, Archd. Briston and Thomas Copler or any three of them ... appraise ... money, the claims (if any), and personal estate of Joshua Duncan decd.
      Quit after 1815.
 

"Reports of cases at common law and in equity decided in the Court of Appeals of Kentucky" ("Kentucky Reports" [Vol.] 20-21 - MONROE Vol.IV-V) by Thomas B. Monroe, 2nd Edition; Vol.21, pg.285 to 313 (California State Law Library 12/2003)
      EUBANK vs. POSTON &c.; Court of Appeals of Kentucky; 21 Ky. 285; 5 T.B. Mon. 285; June 29, 1827, Decided.
      Error to the Clarke Circuit: GEORGE SHANNON, Judge.
      Judge MILLS delivered the Opinion of the Court. On the 22nd day of December, 1813, Edmund Calloway sold to James Ritchie, some houses and lots in the town of Winchester, at the price of ten thousand dollars, payable in different installments, which were secured by simple promissory notes, and Calloway conveyed the estate to Ritchie, by a deed of indenture in usual form, acknowledging the receipt of the consideration. One of these notes, for $2000, made payable the 5th of January, 1818, was, on the 14th of May, 1818, after it had become due and part of it had been paid by Ritchie to Calloway, assigned by him to Achilles Eubank, who brought an action at law against Ritchie, and obtained a judgment thereon, in the month of October, 1818.
      To prevent the collection of this judgment, Ritchie filed his bill with injunction, making Eubank and Calloway both defendants. That injunction was dissolved, and afterwards, on the 29th of May, 1820, Eubank issued his execution against Ritchie, returnable to the next succeeding July rule day, and it was returned by the sheriff, "no property found," and no further effort seems to have been afterwards made to recover the debt at law.
      Before the dissolution of that injunction, to-wit: on the 8th of March, 1820, Ritchie mortgaged the same houses and lots to William Poston, to secure some demand due to said Poston, and indemnify him against some responsibilities which he had undertaken for Ritchie, and some time thereafter Ritchie died insolvent.
      But when Poston took this mortgage, he was fully apprized that this balance was due for the purchase money, to Calloway or to Eubank his assignee, and that a lien was claimed on account thereof.
      After the death of Ritchie, Poston filed his bill against the representatives of Ritchie, to foreclose his mortgage, and obtained a decree for the sale of the estate, which was executed by a commissioner.
      Eubank also filed this bill asserting his lien against the same estate, for the purchase money, due to him as assignee of Calloway, and the more effectually to make known his lien, caused the process to be executed on Poston, at the day of the commissioners' sale, and also personally attended, and made known to the bidders his demand against the estate. The commissioner then proceeded with the sale, proclaiming it to be made subject to the lien of Eubank, if any he had. Poston, James B. Duncan and Joseph Decreet became the purchasers, each of separate parcels, having previously agreed with each other to pay up their proportionate shares of the lien of Eubank, if it should be successful.
      Neither of these purchasers, (they all being parties to this suit,) deny full knowledge of the equity of Eubank, before they respectively acquired an interest in the estate. But they insist that Eubank has no lien, or if he has, that it is only to the real value of notes on the bank of Kentucky, which would nominally be equal to the amount of his debt, at the time of the sale by the commissioner in 1822; because the only execution which had been issued on his judgment in the year 1820, was endorsed that notes on the bank of Kentucky would be taken according to the act of Assembly then in force.
      The court below decreed that Eubank had a lien on the estate, and enforced it accordingly; but scaled his demand to the value of notes on the bank of Kentucky at the day of the commissioners' sale, and allowed him no lien beyond that value. To reverse this decree Eubank has prosecuted this writ of error.
      We deem it wholly unnecessary at this day to attempt to prove by authority, the general principle that the vendor of land retains a lien for the purchase money, and we cannot perceive that this case forms an exception to the general rule. The only evidence of the demand taken by Calloway from Ritchie was simple promissory notes.
      It is true that Calloway, in his deed executed to Ritchie, acknowledged in full, the receipt of the consideration. But it is at this day clearly settled that the lien exists notwithstanding such acknowledgments, and that it will be enforced, even against a subsequent purchaser, who has not completed his purchase, by a payment of the purchase money and acceptance of his conveyance. To unsettle this rule now, so long understood and matured by legal adjudications, would be to unhinge many contracts, and shake the titles of estates, and ought only to be done prospectively, by legislative authority.
      If Calloway had or retained such a lien, it was, by the assignment of the note for the purchase money, transferred to Eubank, as held by this court in the cases of Johnston vs. Gwathmey &c. 4 Litt. Rep. 317; Kenney vs. Collins, Ibid, 289.
      On a review of the cases, we still approve of the principles there recognized, and it may therefore also be considered as settled, that the assignee of a note executed for the price of land sold, takes with him all the lien which his assignor had upon the land, and can enforce the same in a court of equity. If this is permissible in any case, it is certainly to be allowed in this, when Calloway is a defendant and claims the lien, and prays the benefit of it to go to Eubank.
      The only question then is, the extent of that lien. The court below has said that it extends not to the amount of his judgment against Ritchie, but to the same amount in notes of the Bank of Kentucky, scaled to their real value in specie, on the day the sale was made under Poston's decree in 1822, more than eight years after the debt was contracted. If Ritchie, in 1820, when this execution was in the hands of the officer, had paid this debt, or had replevied it for the space of three months only, and then have paid it, it is admitted that he might have discharged it in notes on the Bank of Kentucky. But had he done so, it is apparent from the proof in the cause that the notes then were as good as specie, dollar for dollar, or nearly so, Ritchie did not do this, and to say that Eubank, by making this one unsuccessful experiment, by this endorsed execution, has made his judgment, or his contract liable to moulder away, even to nothing, in all time to come, if the notes he was then willing to take, should ever thereafter become worthless, would be giving this act allowing endorsements, a construction more fatal to contracts than has ever yet been done, or than justice, or equity, or the words of the act will allow. It is here worthy of remark, that this contract was made before any system of endorsement of executions was ever invented in this State, and this endorsement was made under an act of Assembly temporary in its provisions, and not under our late general system of endorsements. The legislature had imposed it for a limited time, thus promising the community that it was a temporary expedient which would be shortly removed; during its continuance, it operated as a species of duress upon Eubank; which he did not think proper to resist, lest his debt should be detained by a longer replevin. If his adversary had embraced the offer, Eubank would have been bound by it; but as he did not, it ought not to be held as having a greater effect upon the interest of Eubank, than its plain import would impose; which import is plainly this: "Pay me now, or at the end of three months hence, and I will take Bank paper." If the debt had been replevied and a new execution had issued on the replevin bond, the clerk was directed to continue the endorsement. But as the execution was not replevied, and was returned ineffectual, no act of assembly, either before or since, that we have seen, required every, or any subsequent execution to be endorsed, that Bank paper would be taken. The plaintiff was certainly at liberty to continue or discontinue his endorsement on any subsequent execution on his judgment.
      If, therefore, the decree of the court below had given him the value of the paper while his offer to take it was in force, there would have been more apparent equity in the decree; but to revive this offer, long since out of date, and give it effect at an hour of low depreciation, cannot be supported by any principle of equity. We have said that Eubank was not compelled to continue this endorsement on subsequent executions; much less could he be compelled to take it along with him when he resorted to other remedies to recover his demand. If he had brought an action of debt upon his judgment, or issued a scire facias against Rithie's representatives, would have been still compelled to endorse? Certainly not, even under the letter or spirit of the act. If, instead of these remedies, by bill in chancery, he attempts to enforce his lien, can it be right to subject him to the effect of his former endorsement? We conceive not. In a case where an execution endorsed has been replevied, and the plaintiff does not chose to issue an execution on the bond, but elects some other remedy to enforce it, such as an action of debt thereon, it was held by this court, at the spring term, 1825, 3 Monroe, 204-8, in the case of Salter &c. vs. Richardson, that the effect of the endorsement did not follow the latter remedy, by operation of law; and certainly the principle is more strong when applied to an execution endorsed and returned, "no property found."
      The only plausible ground for a contrary decision in this case, is the consideration, that the present holders of this estate might have been induced to purchase under the belief, created by this endorsement, that bank notes would be taken, and therefore, Eubank, as against them, ought to be compelled to lose his lien to a greater extent. There could be no ground for such a belief at all; but if there was any, it could not reasonably be extended lower than the value of the paper during the existence of Eubank's offer to take it, in 1820, which would be of no use to the present parties. There is no pretext for saying that Eubank induced them, or any of them, to acquire an interest, by representing to them that he would take bank paper, other than his endorsement. Poston was well acquainted with his whole claim long before his mortgage, and so was Duncan, and all of them on the day of sale, were possessed of the extent of it, and there was then no execution existing with an endorsement, nor had there been for two years before. It is true, one witness states, that on the day of sale, Eubank stated that if they would pay him up, he would take paper; but this was after the sale was over, and not one of the parties availed themselves of his expressions by offering him the paper. To bind him by those expressions, would be as unreasonable as to confine him to his former ineffectual endorsement.
      (MAD: more not copied here)
      Upon the whole case, therefore, a majority of this court are of opinion, that Calloway has a lien on this estate; that this lien passed to Eubank, the assignee of the note; that neither Calloway or Eubank has done any thing which forfeits the lien; that Eubank did not, by his fruitless endorsement on an execution, once made, lessen that lien from the full amount of his judgment at law, in gold or silver, which the note on which it was founded, always secured to him, and that the court below erred in lessening his recovery by the scale of depreciation.
      He ought, therefore, first to have a provisional decree, rendered in his favor, that unless the defendants shall discharge that lien, by the payment of the amount of his judgment, before a certain day fixed in the next succeeding term, the estate shall be sold in discharge of his demand. If, on the arrival of that day, the money, with the costs of this suit is paid, then his lien is to be declared to be extinguished, and the controversy ends. If on the arrival of that day, the money is not paid, then the court below, ought to direct the estate to be sold, or so much thereof as will discharge the amount, under the superintendence and direction of some discreet commissioner, appointed by the court, and the proceeds thereof, to be appropriated to discharge the demand.
      The decree must be reversed with costs, against Poston, Duncan, and Decreet, and the cause be remanded for such decree and proceedings, as shall conform to this opinion, and the usages and principles of equity.
      CHIEF JUSTICE BIBB, not concurring with the majority of the court in maintaining the lien asserted by Eubank, the assignee of Calloway the vendor, in preference to the claim of the purchasers under the mortgage of Ritchie, the vendee, delivered his own opinion.
      ON the 28th of March, in the year eighteen hundred and seventeen, Edmund Calloway and wife, by their indenture, duly acknowledged and recorded in the proper office on the same day, conveyed to James Ritchie, two lots of land in the town of Winchester, in consideration of ten thousand dollars.
      In the deed, the consideration is expressed to have been paid, the receipt is acknowledged, by the said grantors, and they, therein, and by said deed, "thereof, and from every part and parcel thereof, do hereby acquit and discharge him, the said James Ritchie, his heirs, executors and administrators."
      Ritchie being indebted to the President, Directors & Co, of the Bank of Kentucky, by several notes discounted at their Winchester office the one endorsed by John Hume and William Poston, for $1,300; another for $900, endorsed by said Robert Didlake, and William Poston, another for $1,000, endorsed by said Poston, to secure the said Didlake, Hume, and Poston on the 8th of March 1820, conveyed to said Poston the lot No. 2, purchased of of Calloway, and all that part of lot No. 7, purchased of Calloway, except the part conveyed by Ritchie to William Boggs, upon condition that if the said Calloway should fail to pay the notes, or any part, or any note which should be given to renew said notes, or any part, whereby the said sums, or any part thereof, should devolve on said Didlake, Hume, and Poston, or either of them, that Poston should sell the premises, or so much as should be sufficient to reimburse the said Didlake, Hume and Poston, or either of them, the sums so falling on them by reason of their endorsements; but if Ritchie discharged the debts, and saved his endorsers from loss or harm, then Postor to re-convey to Ritchie; this deed was duly recorded on the 9th of March 1820. Ritchie failed to pay these notes; and Poston having paid them, on the 9th of June, 1821, exhibited his bill against the widow and heirs of Ritchie, who was dead and insolvent, and no administration granted, and so proceeded, that at September term of the Clarke circuit court, in the year 1821, the premises were decreed to be sold to raise the money so paid by Poston; at this sale, on the 1st of January, 1822, Poston became the best bidder for part, Joseph Decreet, for another part, and James B. Duncan, for another part; which sales were reported to the court and confirmed.
      In December, 1821, after the decree in favor of Poston for the sale, but before the sales actually made, Achilles Eubank exhibited his bill in equity, against the heirs of Ritchie, Edmund Calloway, and Poston, setting up, as the assignee of Calloway, a lien upon the premises so conveyed to Poston, by virtue of a note for two thousand dollars, executed by James Ritchie, to Edmund Calloway on the 22nd of Dec. 1813, payable on or before the 8th of January, 1818; assigned to Eubank, on the 14th May, 1818, he refers to the bill and proceedings of Poston aforesaid, as part of his bill, and charges Poston with notice, at the time he received the conveyance from Ritchie, of Calloway's lien, and that this note was part of the purchase of the premises, and that it was wholly unsatisfied; the bill also charges that Ritchie at his death was insolvent; that said assignee of Calloway had obtained judgment at law, and issued execution, and that the whole judgment remains unsatisfied.
      It appears by reference to the judgment referred to in the bill as a part of it, that Eubank obtained a judgment for the full amount of the note, and issued execution for the full amount, and claimed by his bill the full amount of the judgment.
      Poston, by his answer, alleges, that the sum of $1073.74 cents, was paid to Edmund Calloway, and that fact is proved by an exception made in the assignment by Calloway, and by the receipt endorsed upon the note, but not credited on the judgment or execution; he pleads his mortgage, and decree and sale, and that he was a fair and bona fide creditor of said Ritchie, and ought not to be deprived of the advantage he has obtained as well by his mortgage, as by his decree, and the sale under it; but he does not deny, nor yet expressly admit, the notice of Calloway's lien at the time he obtained the conveyance from Ritchie; he, by his answer, refers to the sales then concluded; insists, as Eubank had endorsed his execution, that he would receive notes of the Bank of Kentucky in discharge of it, which were at a discount, that if his lien should be considered as superior, and to be enforced, that it should be only for the value of the debt so agreed to be taken in that paper; he relies upon, and proves a tender made by him of the amount so due in that paper, and the refusal by Eubank; he insists upon a contribution by the purchasers of the property at the sales under the decree, and upon an arrangement made between the several purchasers to that effect, based upon their agreement to contribute, if under all the circumstances, the lien of the complainant shall be considered as existing, and requires of him to make those other purchasers defendants; but for greater security in that behalf, Poston, (according to the statute in such cases provided) makes Decreet and Duncan parties.
      The answers of Decreet and Duncan, resist the lien, but insist if it should be enforced, that it be reduced to the value in paper of the Bank of Kentucky.
      Duncan relies on a purchase of the property made by him at sheriff's sale, under the execution of Eubank, and other executions, and that Eubank's execution against Ritchie was levied on the property by the express direction of Eubank's attorney, and makes his answer a cross bill against Eubank; this part of the defence may be dismissed, with this remark: although the sale was made by the sheriff, it was illegal, and the purchase by Duncan was only colorable, and not real.
      In April, 1823, Eubank, by leave of the court, by an amended bill referred to, and exhibited the record of his suit at law against Ritchie, and of a suit in chancery, by Ritchie against Calloway and Eubank, with injunction against the judgment at law, upon an equity alleged against Calloway; stating that the judgment, although rendered for the full amount, was subject to a credit for money paid Calloway; and endorsed; and for the residue, claiming to retain it, because of his being security for Calloway in a bond to Jacob Holderman, for about $1300, upon the express agreement that he should retain the balance of this note as indemnity; that said debt remains unpaid, the co-security George G. Taylor insolvent, and Calloway removed from Clark to Christian county, and in declining circumstances; that the note sued on by the assignee of Calloway is reduced by the credits thereon, to a sum not sufficient to indemnify Ritchie. Eubank, by his answer denied any knowledge of the equity, and put Ritchie upon proof of it; except as to the credits endorsed upon the note. As to the proceedings in Ritchie's injunction, they need not be more particularly stated at this time, than that upon the hearing, the injunction was dissolved, and the bill dismissed, each party to pay his own costs.
      Upon the hearing, the court gave to Eubank, the assignee, a lien for the note so assigned by Calloway, but reduced the sum to the value in paper of the Bank of Kentucky; which Eubank, by endorsement on his execution had agreed to accept. Eubank, not content with this, has brought the record into this court, claiming more than was decreed him.
      As I think Eubank has already a decree against Poston, and those claiming under him, to which he is not entitled, I certainly cannot consent to decree him more. According to my understanding, Calloway had no lien upon the estate in the hands of Poston; and Eubank had none.
      The lien which a vendor has in equity, upon the estate sold, for the payment of the purchase money, is the mere creature of equity; it is created by no express contract; it is of no positive institution; but is moulded by the court according to circumstances. As it is the creature of equity, so it must be kept by the court in proper limits, and regulated by safe rules. (MAD: more not copied here)
      What weight is due to the suggestions I have made upon this subject of implied lien, this questio pexata, I leave for others to determine. My own mind is well satisfied, that by retaining the title from 1813 to 1817, and then passing it to Ritchie, with a receipt for the purchase money, Calloway ought to be regarded as having waived his lien; that according to best opinions, this implied lien, is never supported in equity in favour of a third person claiming to substitute himself in place of the vendor, and that it is not to be supported against a creditor of the vendee who holds the legal title to secure a bona fide debt. This is a contest between two creditors of an insolvent debtor. Poston has a bona fide debt, secured by a mortgage; he holds an equal equity, connected with the legal advantage. It is a struggle for "tabulum in naufragio." Poston has gained it by his vigilance and prudence, and I know of no rule or principle of equity applicable to Eubank's case, by which it can be taken from Poston and given to Eubank.
      My opinion is, that the great error in the decree of the circuit court, is in decreeing any thing in favor of Eubank; his bill should have been dismissed, and that he has no cause of complaint.
 

"Reports of cases at common law and in equity decided in the Court of Appeals of Kentucky" ("Kentucky Reports" [Vol.] 26-27 - MARSHALL) by J.J. Marshall, Vol.III and IV; Vol.26, pg.42 to 48 (California State Law Library 12/2003)
      POSTON vs. EUBANK; Court of Appeals of Kentucky; 26 Ky. 42; 3 J.J. Marsh. 42; December 19, 1829, Decided.
      Error to the Clarke Circuit; RICHARD FRENCH, Judge.
      Judge ROBERTSON delivered the opinion of the Court. RITCHIE purchased from Calloway, certain houses and lots, in the town of Winchester, obtained a conveyance, and gave to him his bonds for the consideration.
      One of these bonds having been assigned to Eubank, he obtained a judgment on it, and caused a fieri facias to issue, which was returned "no property." In the meantime, Ritchie had mortgaged the houses and lots to Poston, who had procured a decree for foreclosing the mortgage.
      Before the sale of the property, under the decree in favor of Poston, Eubank filed his bill against Ritchie's representatives, and Poston, asserting an equitable lien on the houses and lots, and praying for a sale, subjecting the property to his judgment.
      The subpoena, which issued on this bill, was served on the day of the sale of the property, under Poston's decree, but before the sale; and notice of the equitable lien, was published in the hearing of those, who were attending to bid.
      Poston, the mortgagee, proceeded with the sale, and Duncan, and Decreet, and himself, bought the property, each buying a separate portion of it.
      Poston, in his answer to Eubank's bill, alleged that Duncan, Decreet, and himself, agreed, on the day of sale, to buy the property, and to be each responsible, "pro rata," for the extinguishment of Eubank's lien; provided, it should be enforced, and he therefore, made his answer a cross bill, against Duncan and Decreet, and asked for a decree against them, to enforce contribution, according to the alleged agreement, in the event of a decree, in favor of Eubank. The answers of Duncan and Decreet, admit their purchase, and an agreement for contribution; but deny that it was such an one, as alleged by Poston. That which they admit, is somewhat qualified.
      A decree was pronounced, as between Eubank, Poston, and Ritchie's representatives, establishing Eubank's equitable lien, and Poston's cross bill, was continued. On a writ of error, by Poston, and the Ritchies, this decree was affirmed, in its principle, by this court; but the case was remanded, for the correction of some errors in the details of the decree. See Eubank vs. Poston, et al. V. Mon. 285.
      After the return of the case, to the circuit court, Poston offered to file a supplemental answer, which averred, that since the prosecution of the writ of error, he had paid to Eubank, the whole amount of his (Poston's) distributive share of Eubank's debt, according to the contract with Duncan and Decreet, and prayed that the court would decree, that Duncan and Decreet should pay the residuum, or that the property, which they purchased, should be first subjected, if they should fail to contribute.
      The court did not permit this supplement to be filed, but gave a credit "in solidum," for the amount paid by Poston, and rendered a decree for the sale of the houses and lots, without reservation or discrimination.
      To reverse this decree, this writ of error is prosecuted by Poston, who assigns two errors: 1st. That decree is erroneous in principle. And 2d. That the allowance to the commissioner appointed to execute the decree, is exorbitant.
      As a general proposition, it is well settled, that an equitable lien, on an estate, held by several, should be enforced, distributively, against each, according to his interest in the estate. At law, a motion would not be tolerated, to coerce contribution by several defendants. Each being legally responsible for the whole judgment, the creditor cannot be controlled, nor circumscribed in his discretion, to coerce the entire amount, from all, or any, of the defendants, as he may deem most just or expedient.
      But it is not so in equity. The chancellor delights in equal and distributive justice. It is his province to prevent unnecessary litigation. Hence, all who may be concerned, directly or indirectly, in the subject matter of a suit in chancery, or who may be immediately or eventually, affected by a decree, are generally required to be made parties, so that, at once, without unnecessary delay or expense, or multiplication of suits, justice may be administered, by rendering, among all who may be interested, such a decree as will secure to each, his full measure of right, and impose on each, his proper degree of liability.
      Thus, if a mortgagor convey the mortgaged estate to several, they should all be made parties to a bill for foreclosure, and compelled, individually, to contribute to the extinguishment of the debt of the mortgagee, in proportion to the value of the interest, which each holds in the estate; and if the mortgagor retain a part of the estate, that part should be subjected first.
      But this well established principle of equity, does not apply, in our opinion, to this case, for the following reasons:
      1st. Poston, Duncan, and Decreet, were purchasers, "pendente lite." Eubank had instituted his suit against Ritchie's representatives and Poston. He had not made Duncan and Decreet parties. He could not have done so, because, when his bill was filed, they had no interest. He was, therefore, entitled to a decree against Poston; and Poston could not change the nature of his responsibility, by a subsequent sale.
      After the sale, Eubank did not make Duncan and Decreet parties. He was not bound to make them parties; if he had been, he might have been delayed and frustrated, by successive pendente lite sales, and his suit rendered interminable.
      The right which he had to an enforcement of his lien against Poston, as mortgagee, when he filed his bill, and had his subpoena served, could not, therefore, be affected by the sale to Duncan and Decreet, nor had the chancellor any right to postpone a decree in his favor, until the controversy between Poston, Duncan and Decreet, could be adjusted. Eubank should not be compelled to wait, until Poston shall be able to enforce his agreement with Duncan and Decreet; for if he should be, it would be impossible to foresee when, or whether ever, he would be able to obtain his right; for, if it would be proper to compel him to wait on Duncan and Decreet, it would for the same reason, be equally proper, to compel him to wait on any others, to whom they might choose to sell, for the purpose of embarrassing and postponing him, and so on ad infinitum.
      As between Poston, Duncan, and Decreet, if it were shewn, that their contract was such as to render a distributive decree, just and proper, Eubank could not have objected to such a decree, unless he had been unnecessarily delayed by it. But the decree which he has obtained, being, in other respects, valid, should not be reversed, merely because it was not against Duncan and Decreet, whom he never sued, and was not bound to sue, and who were brought, collaterally, into the suit, by the act of Poston only, because they, with himself, were volunteer purchasers, with notice, pendente lite. The lien was on the estate: nevertheless, Eubank was not bound to notice any claim to it, which originated from Poston, after he filed his bill.
      2d. Poston was mortgagee. The burthen of the whole equitable lien devolved, therefore, on him. With a full knowledge of this lien, he chose to sell the estate. The sale was for his benefit. He received the proceeds of it. It is, at least, very questionable, therefore, whether the principle of equity, which has been stated, and the authorities which have been cited, in support of it, would not require that he should first be made responsible.
      Whether the alleged agreement, between Poston, Duncan and Decreet, was founded on a sufficient consideration, and was, in other respects, such as the chancellor should enforce, is a question which we need not, and cannot, now judicially determine. The contest, which might grow out of it, between the parties to it, would be of such a character, however, as to manifest the more clearly, the injustice of requiring Eubank, who had no agency in it, and endeavored to prevent it, to await its final issue.
      3d. When the decree was rendered on Eubank's original bill, Poston's cross bill was continued. It does not appear, what decree was afterwards rendered on it, between Poston, Duncan and Decreet, nor whether any has ever yet closed their controversy.
      If a decree were pronounced on the cross bill, that would interpose a barrier to any further controversy, in this case; for if that decree be valid, the parties are concluded by it; if it be erroneous, their only mode of redress is an appeal, or writ of error, to reverse it.
      If the cross bill be still pending, this case cannot be affected by it. It is stated in the briefs of Eubank's counsel, that there was a final decree on the cross bill, before this case was remanded to the circuit court. If this be so, it would be manifestly unjust to indulge Poston in the attempt which he is making, to obtain another decree.
      This fact, however, does not appear in the record before us. But, if it be admitted that there has been no such decree, the consequence must be the same. The original, and cross bills, were not necessarily connected. They were severed, (if they had ever been united) by the first decree; they should not now be consolidated. If the cross bill were pending when the supplement was offered, the proposed amendment belonged to that, and not to this case; and, therefore, if the court erred in rejecting it, a writ of error should have been prosecuted in that, and not in this case; and to that writ of error, Eubank would not have been a party.
      If there had been a decree on the cross bill, (as is asserted) the court did right in refusing to permit the supplement to be filed, in this case. So that in any aspect of the case, it is not shewn that Eubank has obtained a decree to which he was not entitled; nor, that he ought to be longer delayed.
      Poston has been credited with all that he claimed to have paid. On this ground, therefore, he cannot complain. And he has no right to complain, that the court refused to render a decree for Eubank, against Duncan and Decreet, for the reasons which have been given. The court could not have rendered such a decree. Eubank had not asked for it; he had not made Duncan and Decreet defendants. The decree sought by Poston, must necessarily, therefore, have been in favor of Poston, and not Eubank, if the court had thought fit to render any decree on the prayer of Poston. Eubank was not a party to the cross bill.
      The whole estate was liable to Eubank's claim. The proceeding by Eubank, was "in rem." Poston was responsible, as the holder of the whole legal title, when Eubank brought his suit to enforce his lien. It was proper to decree a sale of the estate, for the satisfaction of Eubank's demand. This the court has done, and if, in executing the decree, any unreasonable burthen shall fall on Poston, he must seek his indemnity, if he be entitled to any, from Duncan and Decreet. Eubank is not responsible to him for any consequence necessarily or legally, resulting from the enforcement of his lien, without regard to a contract for contribution, which he, (Poston) chose to make with strangers, for the purpose of effecting a sale for his own benefit, pending this suit, brought against himself, for asserting and establishing the lien.
      We cannot decide on any facts in the record, that the allowance to the commissioner is excessive. Wherefore, the decree is affirmed.
 

"Reports of cases at common law and in equity decided in the Court of Appeals of Kentucky" ("Kentucky Reports" [Vol.] 26-27 - MARSHALL) by J.J. Marshall, Vol.III and IV; Vol.26, pg.254 to 260 (California State Law Library 12/2003)
      MORTON'S Heirs vs. RIDGEWAY, &c. and vice versa; Court of Appeals of Kentucky; 26 Ky. 254; 3 J.J. Marsh. 254; January 13, 1830, Decided.
      Error to the Clarke circuit; GEORGE SHANNON, Judge.
      Chief Justice ROBERTSON delivered the opinion of the Court. BENJAMIN HARRISON, jr. sold to Jonathan Morton, 200 acres of land, out of a tract of 1000 acres, entered on the 26th of April, 1780, and patented several years afterwards.
      Morton sold and conveyed 93 acres of this 200, to Petty, and 105 acres to Tinsley, who having sold it to John Duncan, united with Morton and made a joint deed for it to Duncan. Petty and Duncan being, several years afterwards, evicted by Stevens, Owings and Marshalls, who sued them in ejectments, on grants of prior date to that of Harrison, recovered the estimated value of the improvements, as well those which were on their lands when they bought them, as those which were made by themselves. Petty recovered from Morton the consideration paid to him, but it does not appear that he got the legal interest upon it; whether he did or not, is left in doubt; and Duncan having obtained a judgment against Tinsley, on the warranty in the joint deed, Tinsley recovered the amount of it from Morton, compounded of the consideration and interest.
      After the eviction, Stevens placed Adams and Jas. Duncan on a part of the land, and Owings and Marshalls sold and conveyed the remainder, in separate parcels, to Elseberry and Ridgeway, and John Duncan, who conveyed to Elseberry the five acres which he bought.
      On the 13th of April, 1816, Morton filed a bill in chancery, against Petty, John Duncan, Elseberry, Ridgeway, Stevens, T. D. Owings, (who had succeeded to the right of J. C. Owings) Adams, James Duncan and the heirs of Tinsley, charging that Harrison's entry was superior to those of the successful claimants in the ejectments; that he (Morton) was entitled to the value of the improvements which he had sold, and for which his vendees had been paid; to rents for the occupancy of the land by them; to a release of the legal title from the successful claimants and their alliances, and a re-conveyance from Duncan and Petty. The bill prays for relief co-extensive with its allegations, and with the equity of Morton.
      All the defendants except Owings and Tinsley's heirs, answered, denying the equity asserted in the bill, and resisting a decree.
      Morton having, in the meantime, died, the suit was revived by bill, in the names of his heirs.
      The court decreed that the Marshalls, Owings, Stevens, Ridgeway, Elseberry, Duncan and Petty should release the legal title to the heirs of Morton. That Duncan should account to the heirs for the rents and profits during his occupancy, provided they should not exceed the legal interest on the consideration, and be credited with the value of the improvements made by him, and that Ridgeway, Stevens and Elseberry should be compensated for the improvements made by them. The values of the rents and improvements having been ascertained by commissioners, the court rendered a final decree, according to the report, and the foregoing principles of the interlocutory decree.
      To reverse this decree, cross writs of error are prosecuted by Morton's heirs, and by Ridgeway, Stevens and Elseberry. The writ by Ridgeway, &c. was not issued until the 10th of February, 1829. The final decree was rendered on the 10th of October, 1823.
      Morton's heirs have plead the statute of limitations to this writ, and the plaintiffs in the writ demurred to the plea.
      By the act of 1826, (Session Acts, 30,) the period between the 30th of November, 1824, and the 1st of April, 1827, is excluded from the computation of the limitation to writs of error. Hence it appears that, on the 10th of February, 1829, three years had not expired, by one day; the 10th of February, 1829, being the last day.
      Various errors are assigned by the parties respectively. Without being specially noticed, they will all be embraced by a few general principles, which we will proceed to lay down.
      So much of the decree as establishes the entry of Harrison, is not questioned. There is no doubt that Harrison's entry is valid, and when properly surveyed, with rectangular lines to the cardinal points, will cover the 200 acres conveyed to Morton. The entry has been sustained to this extent, by this court, in the case of M'Kinney vs. Watts, et al. III. Marshall, 268, and the proof in this case is, in substance, what it was in that.
      Duncan and Petty might have injoined the judgments against them in ejectment, and relying on their superior equity, have obtained a decree for a perpetual injunction. But they elected to submit to the judgments and to recover from the successful parties, the value of the improvements.
      What they received they may be compelled to refund, since the title of Morton, under which they held when they were allowed pay for improvements, is established to be paramount in equity, and his heirs are entitled, by decree, to a restitution of the land.
      As, therefore, they are liable to those who paid them for improvements, for the amount which they received, Morton's heirs have no right to a decree against them for it, especially as they will get the improvements with the land. Nor are they bound to pay to Morton's heirs what was received for the improvements which had been made on the land before the sale to them by Morton, because the heirs will be restored to these improvements, when they shall obtain possession of the land.
      As between Morton's heirs and Duncan, equity requires that the former shall be liable for all lasting and valuable improvements, which were made since Morton's sale, and before the recoveries in ejectment, and that Duncan shall account to them for the profits during the same time. Whatever may be the rule in a common law forum, "in foro conscientice," Morton's heirs are bound to pay to Duncan, not only for ameliorations, but for all permanent improvements which were made by him, in good faith, to be valued at the times when they were respectively made, and are entitled to recover from him, rents, during his occupancy, to be assessed on the land and the improvements, annually, increasing the rents on the improvements, correspondently with this annual accession of value, and diminishing it in the same ratio, when they shall have deteriorated.
      As Duncan has recovered from Morton, interest on the price which he paid him for the land, it is equitable that he should account to his heirs for rent, as long as he had the use of the land. This is the true principle of equity, when there is no bad faith on either side, and when the title of the vendor is the best in equity. The use of the land is considered equivalent to the use of its value; and the parties have agreed that the consideration is the value.
      The rents should be regulated by the interest on the consideration and on the value of the improvements, being neither greater nor less than their united amount.
      For example, suppose the consideration to have been $1000, the rent for the first year should be $60. If, in the mean time, improvements were made worth $500, for the next year the rent should be $90, and so on progressively, graduated by the same standard, either augmenting or diminishing the rent, as the value of the improvements should be increased or diminished. If the rent be not increased by the improvements, Duncan should only recover their present value. Duncan should account for waste, if he committed any.
      If Petty did not recover interest from Morton, he is not liable for rents. And as he had the use of the improvements, he should recover from Morton's heirs no more than their value, at the time when they shall be assessed. But if he recovered interest, the same rule should be applied to him and to Duncan. Morton's heirs are responsible to Stevens, Elseberry and Ridgeway, for improvements which they may have made since their purchases.
      As between these parties, the account for their improvements and for rent, must be adjusted according to the principles of the occupant laws, as the improvements were made in good faith, under a title adverse to that of Morton.
      By purchasing the land, Elseberry, Stevens and Ridgeway also acquired a legal right to all the improvements which were then upon it, and for which their vendors had paid Duncan and Petty. And, therefore, they insist that Morton's heirs shall pay them for these improvements also, before they shall be permitted to take possession of the land.
      This cannot be allowed; because, if it were tolerated, Morton's heirs would be subjected to a charge for these improvements, regulated by the occupant laws, and would not be allowed to settle for them in their account with Duncan, for rents; and with Petty, according to the principles of equity, which they have a right to do, as there is a privity between them and Duncan and Petty, and as the improvements were made under their title, which is ascertained to be the best in equity. If Morton's heirs were compelled to pay Elseberry, &c. for these improvements, great and manifest injustice might be done to them. Elseberry, &c. have adequate remedies on the warranties, in their deeds. M'Kinney vs. Watts, &c. III. Marsh. 268.
      But as Duncan and Petty are liable to Marshall, &c. for the amount which they received from them for improvements, and Marshall, &c. are liable to Elseberry, &c. on their warranties, it would be equitable to decree to Elseberry, &c. what Duncan and Petty may be compelled to pay. But such a decree was not asked for; and if it had been, the proper parties were not before the court, so as to enable the court to render it.
      The rights of all the parties might be adjusted in this suit, by further preparation; and it would be best that they should be thus settled. Elseberry, &c. might obtain a decree against Duncan and Petty, for what they owe to Marshall, &c. and then a decree against Marshall, &c, for the balance, if any, to which they will be entitled on the covenants of warranty; and thus the whole case, in all its ramifications, will have been disposed of, without the delay and expense incident to several suits, the avails of which might be unjustly affected by accidents, which, neither prudence nor law can prevent.
      But to attain this end, the Marshall must be made parties. They were necessary parties also, so far as Morton's heirs are concerned. The court has decreed that they release to Morton's heirs, all their right to the land. The record does not show that they ever had any notice of this suit.
      Therefore, the decree of the circuit court is reversed, and the cause remanded, for proceedings consistent with this opinion.
      The parties must, respectively, pay their own costs in this court.
 

"Reports of cases at common law and in chancery decided by the Court of Appeals of the Commonwealth of Kentucky" Vol. 5-6; J.J. Marshall, 1851. April, 1831, pgs.46-48 (from Jim Dempsey 10/2003)
      DUNCAN v. LAFFERTY'S Administrator, Etc. - Chancery; KY Court of Appeals; 29 Ky. 46; 6 J.J. Marsh. 46; April 28, 1831, Decided
      Error to the Montgomery Circuit; SILAS W. ROBBINS, Judge. (MAD: see Clark Co. KY)
      Opinion of the Court, by Judge Underwood.
      Abijah Brooks died, leaving a tract of land, part of which descended to his grandson, Abijah Duncan, whose mother was a daughter of Brooks and wife of the plaintiff in error; but she died before her father, and consequently the estate was cast upon her son, by descent, directly from the grand-father. Abijah Duncan died when a minor, leaving neither wife or child. The only question presented by the record upon the foregoing facts is, shall the estate of Abijah Duncan pass to his father, the plaintiff in error, or to his mother's brothers and sisters?
      By the 3d Section of the act of 1796, concerning descents, the estate of a person dying intestate, leaving no children nor their descendants, passes to the father. Unless this section is rendered inoperative by some other part of the statute, when applied to the facts of this case, the plaintiff in error is unquestionably entitled to the land owned by his deceased infant son, inherited from the grand father. It is contended, however, that the 6th section of the act, which provides that "where an infant dies without issue, having title to any real estate of inheritance, derived by purchase or descent from the mother, the father of such infant, nor any issue which he may have by any person other than the mother of such infant, shall succeed to, or enjoy the same, &c." excludes the plaintiff in error from the inheritance. The third section contains the general rule, the sixth section points out an exception to it. But we are of opinion that the case before us, does not come within the operation of the exception.
      Abijah Duncan did not derive the estate by purchase or descent, from his mother. She never had any title, and, therefore, it is impossible that she could have transmitted any to her son. The language of the exception, therefore, does not embrace the case. This is admitted by counsel. But he contends that a proper construction of the act, keeping in view its object and spirit, will bring the case within the exception. We do not feel at liberty to allow the construction contended for, when we regard the history of our laws regulating descents. The odious doctrine of primogeniture, so uncongenial to the institutions of a republican people, was repealed by a statute of Virginia, passed in 1785. This act gave the estates of infants dying without issue, to their surviving fathers, no matter whether they were acquired by purchase or descent, from their mothers or any other persons. The exception was introduced for the first time, by an act of 1790, and then the father was only excluded from the inheritance, when the infant's title had been derived by purchase or descent from the mother. Now it would require great latitude of construction, to make the term mother include grand-father. With equal propriety it might be made to include uncles, aunts, and cousins, and the reasoning relied on to extend it to the grand father, would also include these, provided they were of the maternal side. It cannot be presumed that the legislature of Virginia, in providing the exception, according to the act of 1790, and that the legislature of Kentucky, in forming our statute of 1796, containing the substance of both the acts of 1785 and 1790, could have overlooked the probable occurrence of cases where infants might die without issue, leaving estate derived by purchase or descent, from others besides their parents. The very fact then, that the legislatures of both states have failed to make provision, except where the title of the infant was derived from father or mother, is conclusive that it was not designed to bring any other case within the exception.
      If Abijah Duncan had died the day after he attained full age, without issue, and had even acquired the estate from his mother instead of his grand-father, then it would have passed to his father without doubt, the exception only operating upon infants. It might be said that it would be a hard case. The court could not remedy it by construction. The maxim ita lex scripta must govern, since we have no legislative power. The chancellor in Virginia has interpreted their statutes in an analogous case, as we have done: Owen vs. Cogbill, &c. 4 H. and M., 487.
      It results that the court erroneously sustained the demurrer to the bill. Wherefore, the decree is reversed with costs, and the cause remanded, with directions to overrule the demurrer.
 

"Reports of cases argued and adjudged in the Supreme court of Florida; at terms held in 1857" ("Florida Reports") Vol.7, by Mariano D. Paysy, pgs.81 to 207 (California State Law Library, Sacramento, 12/2003) (MAD: copied only because of the reference to the Clark Co. KY court case re Abijah Duncan)
      HENRIETTA SMITH, in her own right and as Administratrix of WILLIAM HENRY CROOM, HENRIETTA MARY CROOM and JUSTINA CROOM, and ELIZABETH M. ARMISTEAD, Appellants, vs. BRYAN CROOM, in his own right and as Adm'r. of HARDY B. CROOM, dec'd, and others, Appellees; Supreme Court of Florida; 7 Fla. 81; January, 1857, Decided. (Rehearing Denied, 7 Fla. 81 at pg.180)
      Appeal from Leon Circuit Court. This was a bill in chancery, instituted by the appellants as complainants below against the appellees.
      Hardy B. Croom and his wife Frances, his daughter Henrietta, his son William and his daughter Justina, all perished by the wreck of the steamboat Home, 9th October, 1837.
      Mrs. Frances Croom was the daughter of complainant, Henrietta Smith, and the sister of complainant, Elizabeth Armistead.
      If any of the children of Hardy B. Croom survived him, the estate personal of that child or children, by the statute of North Carolina, goes in distribution to the "next of kin" of the child, which is the grandmother, Mrs. Smith, she being the only person then living standing in that degree of relationship to the children. To make the statutes of North Carolina operative upon the estate, the domicil of the child or children must have been in North Carolina. The bill therefore alleges that such was the domicil, and that the children did survive the father, and the personalty is claimed, therefore, for Henrietta Smith as sole distributee. Mrs. Armistead, under the laws of Florida, (which control the real estate in Florida,) would be entitled equally with her mother to a part of the real estate in Florida, she being the aunt of the children of Hardy B. Croom and the only person standing in that degree of relationship on the maternal side -- hence Mrs. Armistead is made complainant also.
      Hardy B. Croom left several brothers and one sister, all of whose interests are held by Bryan Croom, one of the brothers and defendant to the suit.
      Bryan Croom administered on the estate of Hardy (who died intestate,) and qualified as such in Leon county, Florida, where Hardy B. Croom had a plantation and negroes and most of his property. He defends against the complainants' allegations and insists that Hardy B. Croom survived his wife and children, and that therefore he and his brothers and sisters were entitled to the estate by descent and distribution from Hardy, the said Hardy having no child at his death, or father or mother; that such title vests in them whether the domicil were North Carolina or Florida.
      He further insists, that even if any child or children of Hardy survived him, the domicil of Hardy, and hence of the children also, was Florida, and that by the act of 1829, the estate, personal as well as real, of an infant intestate would pass to defendants as next of kin of Hardy, through whom the infant derived the inheritance, and that all the children died in infancy.
      At a hearing before Judge King, he dismissed the bill, and from this decree the appeal was taken by complainants. (MAD: much more not copied here about a storm on 9 Oct. 1837 which wrecked the steamboat 'Home,' on the passage from New York to Charleston.)
      (opinion) ... In the case of Duncan vs. Lafferty's Adm'rs, &c., reported in 6 J.J. Marsh. 46, the Court was called upon to construe the 6th section of the Act of the Legislature of Kentucky of 1796, which section provided that "where an infant dies without issue, having title to any real estate of inheritance, derived by purchase or descent from the mother, neither the father of such infant, nor any issue which he may have by any person other than the mother of such infant, shall succeed to or enjoy the same," &c. The facts in this case were as follows: Abijah Brooks died leaving a tract of land, part of which descended to his grandson, Abijah Duncan, whose mother was a daughter of Brooks and wife of the plaintiff in error; but she died before her father, and consequently the estate was cast upon her son, by descent, directly from the grandfather. -- Abijah Duncan died when a minor, leaving neither wife nor child. The question presented to the Court was whether, under the 6th section of the Act of 1796, the estate of the deceased infant would pass to the maternal kindred, and the Court decided, that in order to let in the maternal kindred in exclusion of the father of the deceased infant, the estate must have come from the mother herself. The Court, in delivering their opinion, say that it would require great latitude of construction to make the term mother include grandfather; and so in this case, we are of the opinion that it would require as great latitude of construction to make the term father include sister; for, as said by the Court in the case cited, the term father might with equal propriety be made to include uncles, aunts and cousins.
      ... The judgment of this Court therefore is, that the decree of the Chancellor ordering the bill in this cause to be dismissed, be reversed, and that the cause be remanded, with direction to proceed therein in accordance with the rulings contained in this opinion.
      Note by Justice DuPont. -- It is due to the Hon. J. J Finley, the Circuit Judge of the Western Circuit, who sat at the hearing of this case in the place of the Chief Justice, who was disqualified, to state, that the entire argument upon the construction of the statute of descents, contained in the foregoing opinion, was prepared by him.
 

Return to the Clark Co. KY Research File
 

END

Return to Index to Duncan Research Files in Kentucky

Return to The Genealogy Bug's Home Page