Duncan research files of |
"Kentucky Opinions containing the unreported opinions of the Court of Appeals" from 1869 to 1870; by Hon. J. Morgan Chinn, Clerk, Vol.III; "Kentucky Opinions" Vol.3 pgs.675 to 677 (California State Law Library, Sacramento, 3/2004)
SAMUEL FELTS v. D. C. COVINGTON; Court of Appeals of Kentucky; 3 Ky. Op. 675; March 4, 1870, Decided.
APPEAL from Logan Circuit Court, March 4, 1870.
Opinion of the Court by Judge Peters:
Appellant being sheriff of Logan county, and having an execution in his hands issued from the Logan county quarterly court in favor of Woodford Duncan and against the estate of J. Clark and F. M. Covington levied it on some wheat on the premises of said Covington, and sold the wheat as the property of said F. M. Covington under and by virtue of the levy of said execution thereon. D. C. Covington claiming the wheat sold by said sheriff brought this action against said Feltz for the value of the wheat, averring that at the time of the seizure of sale thereof it was his property, and that appellant, was induced and encouraged to make said wrongful seizure and sale by Woodford Duncan, William L. Duncan and J. D. Dulaney, all of whom were made defendants. to the action, and who it is alleged executed to Feltz a bond to the effect that they would indemnify him against any damage he might sustain in consequence of said seizure and sale, which bond he alleges has not been returned to the office of the "Clerk of the Logan circuit court."
The defendants demurred to the petition and the demurrer of the two Duncans and Dulaney was sustained and overruled as to Feltz, he then filed an answer to which a demurrer was sustained, and he then offered an amended answer, which was also adjudged insufficient on demurrer, and having elected to offer no further answer, a jury was sworn to inquire of damages, and having found a verdict for plaintiff below, judgment was rendered thereon, and Feltz prosecutes this appeal.
The answer states that appellant took from the plaintiff an indemnifying bond which he returned with the execution to the office of the clerk of the Logan quarterly court on the day said execution was returnable, and that he took sureties on said bond who were good when it was taken. Other statements are contained in the answer, but a further reference to them is deemed unnecessary, as it seems to the court that those recited presented a good defense to the action, unless the delay of the officers to return the bond until the 1st of November 1868, the day on which the execution was returnable was such neglect as to render him liable.
The time is not prescribed in sections 709 and 711 Civil Code within which the bond provided for therein shall be returned, and it seems to this court that for all practical and beneficial purposes it is sufficient if it be returned on the day the execution is made returnable, no reason is perceived why a return at that time would not secure to the person for whose benefit it was taken all his rights as fully as if returned earlier.
But looking to the petition, there is no allegation that the bond was insufficient, or that it was not returned to the office of the clerk of the Logan quarterly court, but the allegation is that it was not returned to the office of the clerk of the Logan circuit court. Appellant was not authorized to return it to the clerk of the last named court, an amendment of section 719 Civil Code of January 8, 1864, made it his duty to return the bond to the office of the judge of the quarterly court, Code of Practice, Myers, page 206.
The answer presented facts which constituted a good defense to the action and the demurrer should have been overruled. Wherefore, the judgment is reversed and the cause remanded with directions to overrule the demurrer to appellant's answer, and for further proceedings consistent herewith. Appellee should be permitted to amend his petition if he shall offer to do so in reasonable time.
Return to the Logan Co. KY Research File
Allen Co. KY deeds to ca 1850's, Scottsville Courthouse, Allen Co. KY (personal trip by MAD 10/1985; also on FHL films 978,012 to 978,016)
B-332: 10 Dec. 1818, Dillard Duncan of Allen Co. KY to Robert H. Paris, $50, 1/2 lot #54 and #55 in "said town" (not named). No wife, no wit.
C-114: 23 Feb. 1821, Dillard Duncan of Logan Co. KY to Alexander Ritchie of Sevierville, Allen Co. KY, $200, 1/2 lots #50 and #54 and #55. No wife, no wit.
D-429: 29 Nov. 1830, Dillard Duncan of Butler Co. KY to James Stark of Allen Co. KY, $213.27, negroes Lean age 16 and her child Hiram age 5? days. Wit. Charles C. Stark, Wilkins Kilby, Granville D. Stark. Proved on oath of Granville D. Stark and Charles C. Stark.
Butler Co. KY Deed (FHL film 987,929)
H-134: 24 Nov. 1855, By these presents I appoint my attorney Mr. Dillard Duncan of Logan Co. KY for the purpose of processioning and establishing according to law the lines and corners of a tract of land in Butler and Muhlenberg Counties on Muddy River patented to my infant son William, now deceased, and called the Terry Tract, and ... have the survey recorded in the Clerk's Office of Butler Co. /s/ Rob. Peter, Lexington, KY. Wit. A.A. Clark, George Shott. Robert Peter appeared 24 Nov. 1855 before James A. Greenstead, Clerk, by John Brennan, D.Clk, Fayette Co. KY. Power of Attorney recorded 11 Feb. 1856 in Butler Co. KY. (FHL film 367,195; SLC 9/22/2012)
K-337: 4 Feb. 1861, James H. Duncan and wife Sarah Jane to Sion M. Bass, all Butler Co. KY, $650, 97-1/2 acres on Big Muddy Creek. Logan Co. KY certification. (FHL film 987,929; SLC 9/20/1986)
Fayette Co. KY Deed (FHL film 8,701)
16-223: 17 Nov. 1838, Elizabeth (X) Duncan of Logan Co. KY to Jarvis M. Moore of Mercer Co. KY, $450, all her right etc. to land whereon her father James Browning lived and deceased in Fayette Co. KY. Wit. Isaac Browning, John King. (MAD: widow of Squire G. Duncan who d. 1834 or of Benjamin Duncan d. 1811)
Muhlenberg Co. KY Deeds (FHL film 554,986)
10-205/6: 12 June 1841, "Benjamin Young and Nancy Young his wife Agness & Moses Wickliff & his wife Nancy" (/s/ Robert Wickliff, Aggy Wickliff, B.S. Young, Moses Wickliff, and Nancy Wickliff; Clerk's certification for Robert Wickliff & his wife Agness, B.S. Young, Moses Wickliff & his wife Nancy), heirs & legal representatives of William Young decd, to Coleman Duncan of Logan Co. KY, in consideration of the expressed wish & desire verbally expressed of said William Young decd in his lifetime and in consideration of natural love and affection to said deceased who married our sister and sister-in-law Elizabeth Young daughter of said William Young decedant, sell etc. to Coleman Duncan our right, title & interest in land in Muhlenberg Co. KY formerly owned and occupied by said William decd and patented to him, 200 acres. No wit.
10-301: (no date) Catharine Allensworth of Tazewell Co. IL for $20 paid by Coleman Duncan of Logan Co. KY, quit claim to said C.D. (sic) my right and title to the place my father William Young lived on and the place that the said C.D. also lived on before the (sic) moved to Logan Co. Rec. 2 July 1841 in Tazewell Co. IL; rec. 22 Sept. 1841 Muhlenburg Co. KY.
Shelby Co. KY Deed (FHL film 259,231)
I-264: 20 Oct. 1808, William Roberts of Shelby Co. to John Duncan and Eli Simmons of Logan Co. KY, $600, 275 acres, part of 475 acre survey patented in Logan Co. on Alstons Creek, branch of Muddy River, corner John Wilson. Wit. Abraham Owen, Wm. B. Clifton, Charles Duncan.
Todd Co. KY Deed (FHL film 355,908)
J-2: 20 Oct. 1835, Coleman Duncan and wife Elizabeth of Logan Co. KY to James Shanklin of Todd Co., $238, 96 acres on both sides Claylick branch, corner Wesley Keas.
Maury Co. TN Court Minutes (from pg.167, "Maury [Co. TN] Gen." Vol.2, 1974; from Evelyn Sigler 9/1988)
Pg.172-3, 24 Oct. 1825, Deed of conveyance from George Shelby and Jane his wife, to Presley Morehead and Polly his wife, John M. Duncan, heirs of John Hines by his dec. wife Nancy Hines formerly Nancy Duncan, and John Hines ... land in Logan Co. KY.
Maury Co. TN Deed (FHL film 549,251; SLC 5/7/2013)
CC-146/147: 25 Dec. 1847, William H. Duncan of Logan Co. KY sell to Thomas J. Kelly of Maury Co. TN for $1 paid and other considerations, a negro man slave named Jim aged about 24 years, slave for life, in trust, I am indebted to Robert Cross and Edward Kuhn copartners in trade under the firm and style of Cross & Kuhn for $350 by note this date, payable by 1 May next, if I pay the note, this bill of sale to be void. /s/ William H. Duncan. Wit. J.C. Rye, B.L. Wilkes. Ack. by J.C. Rye and R.L. Wilkes, witnesses, 31 Dec. 1847. Filed Dec. 31, 1847. (FHL film 549,251)
Robertson Co. TN Deeds (FHL film 422,471)
F-238: 3 Jan. 1801, William Duncan of Logan Co. KY to Benjamin McNow of Robertson Co. TN, $300, 213 acres on Waters of Red River, part of 640 acre grant #3056 by NC to Martin Duncan 18 July 1797. Wit. John Bryan, Jonathan Vanlove?.
F-241: 14? Dec. 1800, Martin Duncan of Robertson Co. TN to William Duncan of Logan Co. KY, $66-1/3, 213 acres on Red River, part of 640 acre grant #3056 by NC to Martin Duncan 18 July 1797. Wit. Thos. Johnson, Wm. Johnson.
MAD: Robertson Co. TN Chancery Court Loose Papers, case #695, William Powell vs. John Woodard adm et al., re: Advancements made to the heirs of Jacob House. His children ... Martha Duncan of Logan Co. KY ... Filed 1865-67. (from "Robertson Co. TN Abstract of Chancery Court, Loose Papers 1844-1872" by Jean M. Durrett, 1986; from Evelyn Sigler 12/1987)
Stewart Co. TN Deeds
19-513: 20 April 1822?, John Hendry of Pope Co. IL to William Duncan of Logan Co. KY, $500, 274 acres on Saline Creek in Stewart Co. TN. (554,335; from Louis Boone 9/1984)
29-473: 5 April 1881, Ann J. Gilbert, widow of J.M. Gilbert, dau. of Wm. Duncan dec'd, to Daniel D. Duncan, both of Logan Co. KY, $100 (also gives David D. Duncan), 1/9 undivided int. Wm. Duncan bought land 1822 from John Hendry some has been sold. (FHL film 554,338)
Culpeper Co. VA Deeds
EE-486: 21 Sept. 1803, from William Duncan and wife Lucy of Culpeper Co. VA; James Duncan and wife Barsheba of Logan Co. KY; and James Duncan as attorney for Elizabeth Duncan, widow and executor of Benjamin Duncan, late of Fayette Co. KY; to Frederick Duncan of Culpeper Co. VA. (FHL film 30,955)
EE-499: -- day of June 1811, Elizabeth Duncan widow of Benjamin Duncan late of Fayette Co. KY, decd, appoint friend James Duncan of Logan Co. attorney re property in State of VA by virtue of last will of William Duncan late of Culpeper, or any dues ... I may have on any person in "Potsylvania" Co., State of VA, or any county in VA. Wit. Reuben Browning, Abner Browning. Recorded Logan Co. KY. (FHL film 30,955)
HH-266: 22 March 1816, George Yates and wife Dolly, Nimrod Duncan and wife Lucy, Frederick Whitescarver and wife Frances, Cornelius Whitescarver and wife Elizabeth, John Duncom and wife Nancy, Elijah Prince and wife Melinda, Robert Whitescarver and wife Sarah, George L. Browning and wife Gilean, which said Polly, Lucy, Frances, Elizabeth, Nancy, Malinda, Sarah and George L. Browning are some of the children and devisees of John Browning decd, and Elizabeth Browning widow and relict of said testator, to Darcus Duncan, widow and relict of James Duncan (Darcus purchased land to be part of estate of James Duncan), for $1236, 84 acres west side of Aarons Mountain corner to Elijah Settle, John D. Browning. Nimrod and Lucy Duncan and John and Nancy Duncan reg. in Logan Co., KY. (FHL film 30,956)
Loudoun Co. VA Deed (FHL film 32,328)
3V-131/3: 4 April 1830, Coleman Duncan and wife Elizabeth late Elizabeth Young, of Logan Co. KY, and James S.B. Allensworth and wife Catharine late Catharine Young of Todd Co. KY, appoint friend Benjamin S. Young of Muhlenburg Co. KY attorney re estate of Samuel Singleton of Loudoun Co. VA who died intestate, leaving an estate in land and negroes, and the wives of said Duncan and Allensworth being the children and heirs of Sarah Young late Sarah Singleton said Sarah being sister and one of legal heirs and reps. of said Samuel Singleton decd. ... Recorded Todd Co. KY 12 April 1830.
Rappahannock Co. VA Deed (FHL film 33,661)
C-1: 14 Nov. 1835, Elizabeth R. (+) Duncan of Logan Co. KY to Mason Browning of Rappahannock Co. VA, $100, her interest in 156 acres which William Browning decd held, she being one of 12 legal heirs. Reg. in Logan Co. KY.
"IL State Gen. Society Quarterly" Vol.10, 1978 (from Evelyn Sigler 5/1985)
This issue of the periodical includes the Register of Slaves (Indentures) and Emancipation of Slaves; Records found at Gallatin Co. Clerk's Office, Shawneetown, IL. Most were brought by their masters from TN, SC, etc. to be freed.
Pg.5 includes the abstract from Deed Book A, pg.69, rec. 3 Jan. 1820 in Gallatin Co. IL by Jos. M. Street, of James Duncan of Logan Co. KY discharging Edmond (purchased of Major John Roberts of Culpeper Co. and brought to KY by me) and his wife, Phillis (belonging to my father's estate) from my services and claims of my heirs, etc., dated 20 Oct. 1819, witnessed by Henry Maury, J.M. Duncan.
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END
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