Duncan research files of
1880 Clay Co. MS Census
District 1, Beat 1, pg.22, S.D.1, E.D.42
Pg.170B, #222-222, DUNCAN, Jerry (m) 45 MS BLACK married field hand, (blanks in columns for places of parents birth)
Sally 45 MS BLACK, wife, single, field hand, (blanks in columns for places of parents birth)
District 1, Beat 1, pg.33, S.D.1, E.D.42
Pg.176A, #354-354, DUNCAN, Dr. B.A. (m) 45 SC married physician SC GA
C.A. (f) 45 GA wife married house keeping VA GA
E.S. (m) 19 MS son single farming SC GA
Annie D. 7 MS dau. single (blank) SC GA
Beat 2, pg.22, S.D.1, E.D.43
Pg.200B, #207-214, SHIPPEY, J.M. (m) 50 SC (white) widowed farmer SC SC
Pg.200B, #207-215, SHIPPEY, Mary 45 VA MULATTO (blank) single farm laborer VA VA
COX, William 19 MS MUL son single farm laborer MS VA
JORDAN, George 16 MS MUL. son single farm laborer MS VA
DUNCAN, Elie (m) 12 AL MUL. son single farm laborer AL VA
SHIPPEY, Lizzie 9 MS MUL. dau. single MS VA
YOUNG, Valley (m) 5 MS MUL. son single MS VA
SHIPPEY, Dixie (f) 3 MS MUL dau. single -- VA
SCOTT, Tom 17 MS BLACK boarder single farm laborer -- MS
Beat 4, pg.16, S.D.1, E.D.45
Pg.268D, #(blank)-291, DUNCAN, Flem W. (m) 44 AL mar. laborer on farm VA VA
Rebecca 34 SC mar. wife keeps house SC SC
Elizabeth 19 AL dau. keeps house AL AL
Beattie (f) 11 AL dau. keeps house AL SC
Susan 9 AL dau. keeps house AL SC
William 7 AL son AL SC
John 6 AL son AL SC
Fleming 3 AL son AL SC
Rebecca A. 1/12 AL dau. b.April AL SC
"Reports of cases in the Supreme Court for the State of Mississippi" by J.A. Brown and J.B.H. Hemingway; Vol.57, pgs.820 to 822 (California State Law Library, Sacramento, 1/2004) (MAD: see B.A. Duncan and wife C.A. Duncan in 1870 Lowndes Co. MS census)
B. A. DUNCAN v. B. F. ROBERTSON; Supreme Court of Mississippi; 57 Miss. 820; April, 1880, Decided.
Appeal from the Chancery Court of Clay County. Hon. L. Brame, Chancellor, did not preside in this case, but George A. Evans acted as Chancellor pro hac vice.
COUNSEL: White & Bradshaw, for the appellant. The appellee's judgment against the married woman is void, and the sale thereunder would cast a cloud on the appellant's title. The appellant shows that he is and has been in possession of the land for a number of years; that he has paid the judgment creditor of Mrs. Duncan; that she has acquiesced in the payment; and that she, as well as her creditors, is now estopped to assert the invalidity of Sykes's judgment. Courts will protect a copyright when there is color of title, founded on long possession. The appellant's title is sufficient.
Fred Beall, for the appellee. There can be no doubt that Sykes's judgment is void as to Mrs. Duncan. The judgment of Robertson against Mrs. Duncan is good in form and substance. The Chancellor's decision, remitting the parties to their remedies at law, is proper, even if the latter judgment is invalid.
CHALMERS, J., delivered the opinion of the court.
Mr. Duncan filed his bill, to enjoin the sale of a tract of land under an execution emanating from a judgment against his wife in favor of Robertson, the defendant. He alleged that the land belonged to him, and not to his wife, and that the judgment against the wife was void, but that a sale and conveyance of the land under it would cast a cloud upon his title. The proof developed the fact that his own title was void. The land originally belonged to the wife, and the husband derived title through an execution sale, based upon a judgment recovered against the wife by one Sykes. In the suit which culminated in this judgment, Mrs. Duncan, though shown by the pleadings to be a married woman, was proceeded against in all respects as if a feme sole, or person sui juris. There were no allegations of the ownership by her of separate property, or of the exceptional circumstances which make the contracts of a feme covert binding upon her separate estate. The judgment was by nil dicit. Under the well-settled doctrines of this court, a sale under such a judgment does not pass the title of the property of a married woman.
The complainant therefore is shown to have no title; and, as he who invokes the aid of a court of chancery to remove or to prevent the creation of a cloud upon title must show a perfect legal or equitable title in himself, the complainant's bill was properly dismissed. As there was some doubt as to the validity of the judgment against the wife held by Robertson, a sale under which was by this bill sought to be enjoined, the Chancellor dismissed the complainant's bill without prejudice to the legal rights of either party, leaving them to test hereafter in a court of law the strength of their respective titles if a sale shall be had under Robertson's judgment. We approve and affirm this decree.
"Reports of cases in the Supreme Court for the State of Mississippi" Vol.LVIII, containing cases decided at the October term 1880 and April term 1881, by J.B.H. Hemingway; Vol.58, pgs.390 to 397 (California State Law Library, Sacramento, 1/2004)
C. A. DUNCAN and Husband v. B. F. ROBERTSON et al; Supreme Court of Mississippi; 58 Miss. 390; October, 1880, Decided.
Appeal from the Chancery Court of Clay County. Hon. George Wood, Chancellor, by interchange with Hon. F. A. Critz.
B. F. Robertson brought an action of assumpsit, upon an open account, against C. A. Duncan, a married woman, and her husband. The first four counts of the declaration alleged that the account consisted of supplies for Mrs. Duncan's plantation, family supplies and necessaries, wearing apparel of herself and her children, household furniture for the use of herself and family, and of items for money used to pay for buildings on her land, and for material therefor, and for work and labor done for the use and benefit and improvement of her separate estate; which goods and money were bought and obtained, as was alleged, by her, or by her husband with her knowledge and consent. It was also declared in those counts that at the time the account was contracted Mrs. Duncan owned and possessed a large and valuable separate estate, of realty and personalty, situated in the county where the action was brought; but there was no allegation that she owned and possessed any separate estate at the time of the institution of the action.
The fifth and sixth counts, based upon the same cause of action as those preceding, charged that Mrs. Duncan had been engaged in business as a feme sole, in farming and cultivating her plantation, and that the goods and money were furnished to her while engaged in such business, to enable her to cultivate, maintain, and improve her plantation.
The defendants were duly summoned, but failed to appear, and judgment by default was rendered against Mrs. Duncan, to be satisfied out of her separate estate. Execution was issued and levied upon her lands; and thereupon she, with her husband, filed the bill in this cause against Robertson and the sheriff to enjoin the sale under the execution, on the ground that the judgment upon which it was founded was void. A temporary injunction was granted. Robertson answered, and then moved to dissolve the injunction. The motion was sustained, and the complainants appealed.
COUNSEL: White & Bradshaw, for the appellants.
1. The first four counts do not allege that Mrs. Duncan had a separate estate, liable to be subjected to the demand of her creditor.
It is not sufficient that the creditor should allege that the married woman had an estate when the debt was contracted, but he must show, when he seeks to enforce the claim against a married woman, that she has an estate with which the court can deal.
The suit, as has been so frequently decided, is not an action in personam, but an action in rem. The res must exist before a suit can be successfully maintained against a married woman. "In the absence of an averment and proof that a married woman is possessed of an estate, an essential fact is wanting to support a judgment against her." "Satisfaction may be had out of her separate estate when the wife's liability is fixed."
There being no allegation that Mrs. Duncan had a separate estate when the suit was instituted and judgment rendered, her liability could not be established. The statute says that before judgment can be rendered against a married woman, her separate estate must first be shown to be liable. The allegation of property is necessary in order to give the court jurisdiction. Proceedings against a married woman are actions in rem. No personal judgment can be rendered against her. Hence it must be averred and proven that she had a separate estate when the suit against her was instituted.
The condition precedent to a right of recovery against a married woman is, that there be a separate estate out of which satisfaction may be had. Chancery courts will treat her contracts, whether by judgment or otherwise, as enforceable out of her separate estate.
2. The statutory power of the husband, empowering him to contract debts binding upon the wife's property for supplies for her plantation, negatives the idea that she can act as a feme sole when engaged in farming. When the statute speaks of a married woman engaging in trade as a feme sole, it evidently has no reference to her farming operations; for as to them it says: "Satisfaction may be had out of her separate estate." And this clause would be entirely unnecessary if she could act as a feme sole; for then any kind of a judgment could be rendered against her, consistent with the facts of the case. When she engages in business as a feme sole, she acts independently of her husband. She selects no agents except those that she wills to appoint. Therefore, when her lands are devoted to agriculture, she is to a certain extent under the dominion and control of her husband. He is by statute made her agent. She cannot, in the nature of things, act as a feme sole. She cannot prevent her husband from purchasing supplies for her plantation. She is not free to manage and control her plantation; she labors under the disability imposed by the statute, and her status is therein defined.
But it has been decided that a married woman is not bound personally for supplies for her plantation, and that the action to enforce payment is a proceeding in rem. It is necessary that the wife should have a plantation before she can be bound for supplies. It is not necessary that she have any property when she engages in trade or business as a feme sole.
L. F. Bradshaw, of counsel for the appellants, argued the case orally.
Fred Beall, for the appellees. The single question in the case is, is the judgment of Robertson against C. A. Duncan void?
1. The counts of the declaration charging Mrs. Duncan as a married woman allege that she owned property at the time of the making of the contract, liable for the debt, but it is not averred that she had the property at the time the suit was instituted, and it is for this reason that appellants claim that no valid judgment could be entered on these counts.
A judgment by default may be taken against a married woman. In taking a judgment by default against a married woman, it is done upon the principle that, her liability having been alleged to have existed at one time, it is presumed to continue. So, if, as in the declaration of Robertson against Mrs. Duncan, it is alleged that she made a contract which under the law she could make, and at that time she had a separate estate liable to the satisfaction of the debt incurred by such contract, the law presumes that her status continues, and if she would avoid a judgment being rendered against her upon such contract, she must come forward and by proper plea aver that she is not status quo. And if she does not plead her changed situation, a valid judgment can be rendered against her.
The declaration averred that at the time she made the contract she was the owner of a separate estate out of which satisfaction could be had. Robertson's equity attached to her separate property when he sold her the family and plantation supplies, and he has a right to have satisfaction out of that estate unless she has ceased to be the owner thereof. If she was not the owner of the property when the suit was instituted, it devolved on her to show it.
2. The fifth and sixth counts in the declaration charge Mrs. Duncan as a married woman engaged in business as a feme sole, and that as such she made the contract sued on, in the course of such business.
The averments fully meet every requirement of sect. 1780 of the Code of 1871, as construed by this court. But it is contended that farming is not a "business" in the sense that word is used in the Code, and that a married woman cannot engage in farming as a feme sole. I answer this in the language of Chief Justice Simrall in Netterville v. Barber, 52 Miss. 171. He says: "The primary signification of the latter word ('business') is 'employment' -- that which employs time, attention, and labor. * * * The idea is that a married woman may engage in trade in the commercial sense, and in other employments which require time, labor, and skill, and shall be bound by her contracts made in the course of such business."
The statute of Massachusetts of 1862 (chap. 198, sect. 1) provides that "a married woman now doing, or hereafter proposing to do business on her separate account shall file a certificate in the clerk's office of the city or town where she does, or proposes to do said business, setting forth the name of her husband, the nature of the business proposed to be done," etc. "In case no such certificate shall be filed, such married woman shall not be allowed to claim any property employed in said business as against any creditors of her husband."
The Supreme Court of Massachusetts, construing this statute, say: "We do not understand that this statute is to be restricted in its application to cases in which a married woman goes into business as a trader, in the ordinary sense of the word, or manufactures goods for sale, or keeps a boarding-house, but that agriculture may be one of those occupations in which she may do business on her separate account within the meaning of the statute." Snow v. Sheldon, 126 Mass. 332. The court say further, in that case: "Where a married woman carries on a farm for the support of her family or her husband's family, she is following a separate business which requires the designated certificate."
Fred Beall also argued the case orally.
CAMPBELL, J., delivered the opinion of the court. This case presents two new questions, viz.: 1. Whether, under sect. 1780 of the Code of 1871, a wife who had a plantation operated for her account could, in reference to such operations, be treated and held to be engaged "in trade or business as a feme sole," in the contemplation of the section? 2. Whether, in an action at law against a wife and her husband, under sect. 1783 of the Code of 1871, on a contract made by her, not when engaged in trade or business as a feme sole, but as a married woman in a state of case provided for by law, it is essential to the validity of the judgment obtained that the declaration shall aver not only the existence of the conditions enabling the woman to make a valid contract, but the further fact that at the time of the institution of the action she continued to be the owner of separate property liable to the satisfaction of the demand.
We answer the question first stated in the negative. The provision that a married woman may employ her money in trade or business, and that "when a married woman engages in trade or business as a feme sole, she shall be bound by her contracts made in the course of such trade or business in the same manner as if she were unmarried," contemplates trade or business other than that specifically regulated by the statute, and contracts distinct from those enumerated in it, as within her capacity as a feme covert. As a feme covert she may make certain contracts specified by the statute. As a feme sole employing her means in trade or business, she may, in the prosecution of that trade or business, contract as if she were not married. The contracts contemplated in her character as feme covert and feme sole are distinct things, and it is not admissible to annul the restriction of the statute as to the capacity of a married woman, acting in her prescribed sphere as such as marked by the statute, by treating her as a feme sole as to the contracts enumerated by the statute as those which she, as a married woman, may make. A married woman may make certain contracts enumerated in the statute. If she assumes the character of a feme sole, and thus prosecutes trade or business in which she may engage, she ceases to be regarded as a married woman as to contracts made in it.
Responding to the second question stated, we announce that the absence from the declaration on a contract made by a married woman, as such, of an allegation that she had separate property at the commencement of the action, does not render void a judgment against her in such action. A declaration which shows a valid contract is sufficient, without showing the existence of a state of things which may be necessary to enable the plaintiff to obtain satisfaction of such contract. We neither express nor intimate an opinion on the question whether a married woman, when sued on her contract, can escape a judgment by showing in defence her changed condition with respect to her separate property, as having none or only that acquired after the making of the contract sued on, and not the proceeds of what she had at the time of the contract. Whatever may be true as to that, if she would avail herself of that she must defend on that ground. The declaration must show a cause of action. A valid contract not performed is a good cause of action. If there is a sufficient reason for non-performance, if there has supervened a reason why it may not be enforced, it must be pleaded as a bar.
"Mississippi decisions, containing the unreported opinions of the Supreme Court of Mississippi" by Wm. Hemingway & C.M. McDonald; Vol.2, pg.148 to 151 (California State Law Library, Sacramento, 1/2004)
B.M. ROBERTSON v. C.A. DUNCAN; Supreme Court of Mississippi; 2 Miss. Dec. 148; May 9, 1881.
Appellant, Robertson, secured a judgment against appellee, Mrs. C.A. Duncan, who was a married woman, and had it levied on her separate property. She filed a bill to enjoin the sale under the execution. The injunction was dissolved on motion of appellant and appellee appealed to the Supreme Court, where the cause was affirmed. After mandate had reached the lower court, appellant sued out another execution, which was levied on the property of Mrs. Duncan, and she asked and obtained leave to amend her bill for an injunction restraining the sale, alleging, in addition to what was in the original bill, that the judgement under which the execution was issued was void because the judgment was rendered by default, and there had never been any summons served on her, and that she was without notice of the suit until the execution was levied. She made a motion to amend her bill and to revive the injunction. The amendment was allowed, and from the order allowing the amendment and reviving the injunction Robertson appeals.
APPEALED from Chancery Court, Clay county, F.A. Critz, Chancellor.
Affirmed, May 9, 1881.
OPINION.--COOPER, J.: The exercise by the chancellor of the power to permit amendments is rarely controlled by this court. The statute enjoins the allowance of all amendments necessary to present fairly the merits of the cause, and except in cases in which the discretion has been evidently abused we ought not to interfere.
We must assume for the purpose of considering this question that the matters set up in the amendments are true, as stated, and unless the complainant has been guilty of such negligence as to preclude her from asking to be permitted to amend, the granting of such leave will not be error. We are not prepared to say that the permission given in this case was an abuse of judicial discretion, and the action of the court is Affirmed.
"Reports of cases in the Supreme Court for the State of Mississippi" containing cases decided at the October term 1881 and April term 1882, by J.A. Brown and J.B.H. Hemingway; Vol.59, pgs.550 to 557 (California State Law Library, Sacramento, 1/2004)
C. A. DUNCAN v. J. H. L. GERDINE et al. Extrs; Supreme Court of Mississippi; 59 Miss. 550; May 10, 1882, Decided.
Appeal from the Chancery Court of Clay County. Hon. F. A. Critz, Chancellor, did not preside in this case, but counsellor George A. Evans acted as chancellor pro hac vice.
After the appellant's husband failed to sustain his attack on the judgment which the appellees' testator had obtained against her in the Circuit Court, Duncan v. Robertson, 57 Miss. 820, she filed a bill assailing this judgment under the married woman's law, and when that position was lost (Duncan v. Robertson, 58 Miss. 390) she obtained leave to file an amended bill, which alleged that the law court had no jurisdiction, because summons was never served upon her, and the injunction against the judgment was reinstated. After B. F. Robertson answered the amended bill and denied the averment of want of a summons, he died, and the case was revived against the appellees, who, at the final hearing, on the evidence stated in the opinion, obtained a decree dissolving the injunction and dismissing the bill.
COUNSEL: L. F. Bradshaw and F. S. White, for the appellant, filed a brief, and the former argued orally.
Judgments without notice are void and can be inquired into collaterally. They may be set aside by a direct proceeding for that purpose, and the return contradicted by the record. The return may be impeached to perpetually enjoin the judgment founded on a false return because of its falsity. Equity will grant relief against an execution in such cases. Judgments by default on insufficient return are void. Where a judgment is void for want of jurisdiction, an execution on it will be perpetually enjoined. The testimony of B. A. Duncan and the appellant and R. W. Miller are conclusive as to the manner of the service and no one has contradicted Miller's statements, or even attempted to do so, but it seems to have been admitted that Miller did not serve the summons.
L. Brame, on the same side, argued orally and in writing.
1. It is competent by bill in equity to attack a judgment at law and show that it is void for want of notice. This is the object of the amended bill, and constitutes its sole equity. The defendants appealed from the order allowing the amended bill filed and reinstating the injunction. The action of the Chancellor was affirmed. The complainant's right to relief upon proof of the facts charged in the amended bill is, therefore, res judicata.
2. If the judgment was taken by default at the return term without personal service, it was void. This is not a bill filed for a new trial at law. In such case it would be necessary for the complainant to show that she had a good defence. The judgment here is not merely irregular; it is a nullity. Being void, the complainant's land cannot be sold under it. To prevent the execution of the void judgment, whereby a cloud would be cast upon the complainant's title, she has the right to enjoin it, without regard to the justice of the debt. To hold otherwise would be to give a plaintiff recovering a judgment without notice an advantage he would not possess where summons is duly served on the defendant.
3. The statute which provides that the suing out of an injunction shall operate as a release of errors has no application to this case if the facts alleged in the bill are true. (1.) Because the judgment is not merely erroneous or irregular, but is void. (2.) Because the injunction was sued out while the Code of 1871 was in force by Mrs. Duncan, a married woman. But all this was discussed and decided on the last appeal to this court, when it was held that the complainant was entitled to file the amended bill and have the injunction reinstated.
4. The question then is this, Has the appellant shown that the summons was not served? It is clear from all the facts in evidence that Mrs. Duncan was not personally served with process. If she was not, then the allegations of the bill are sustained. The Chancellor did not decide that the summons was in fact served. On the contrary, it is evident that he believed that it was not served personally upon Mrs. Duncan. Instead of deciding upon this question of fact, he concluded that the record had at one time shown that she was served, and thereupon held that it was incompetent to show that she was not served.
F. A. Critz, for the appellees, filed a brief, and argued orally.
1. Conceding the power of a chancery court to enjoin a judgment at law, which is void for want of notice, the fact that no service was had must be proved. The officer's return supported by the subsequent judgment presents a prima facie case which can only be met by a preponderance of competent and satisfactory evidence. In this case the testimony, which is that alone of the complainant, her husband and the officer who made the return, is both incompetent and insufficient C. A. Duncan is incompetent, for she will not be permitted to testify against the estate of a deceased person to establish or defeat a claim which originated during his lifetime. The officer serving process shall not be permitted to question the truth of his return. A lost writ must be proved in the same manner as other records, by office copies, certified copies under seal or exemplifications. And when the record books were burnt and mutilated or lost, the clerk's docket and the journals of the judges have been deemed the next best evidence of the contents of the record. Where the law requires an entry or memorandum of a particular transaction to be made in a court of justice, the official entry or memorandum excludes all independent evidence of the same. If the records be lost the docket entries become primary evidence. Under no circumstances is the officer competent to contradict his return.
2. There is certainly nothing in the evidence to justify a reversal of the Chancellor's decision upon this question of fact. At most the evidence is conflicting. Equity will not lightly interfere with a judgment at law. Some strong reason must be clearly proved. It must be alleged and shown that injustice was done by the judgment. The effect of vacating the judgment now would be to release the defendant from the debt, as the Statute of Limitations has intervened.
Fred Beall, on the same side, argued orally and filed a brief.
C. A. Duncan's remedy was by a writ of error coram nobis. Upon a judgment in the King's Bench, if there be error in the process or through the default of the clerk, it may be reversed in the same court by a writ of error coram nobis. Her remedy being clear and complete in the common-law court, she has no remedy in a court of equity. And where a party has been impleaded in any jurisdiction having cognizance of the subject-matter he must use diligence to avail himself of every defence proper to his case and admissible in that forum. It is always a delicate matter for one court to interfere with the judgments or decrees of another court possessing independent jurisdiction, and it will never be done, except as an absolute necessity. There was no necessity for the Chancery Court to interfere in this case; for, if the judgment is void as claimed, then no sale under it would pass any title or confer any rights. Besides, the defendant could easily procure an order vacating said judgment from the Circuit Court in which it was rendered. When this case was before this court two years ago, it was clearly intimated that Duncan's remedy was in a court of law. Duncan v. Robertson, 57 Miss. 820.
COOPER, J., delivered the opinion of the court. We are satisfied from an examination of the record that the Chancellor rightly found as a fact, that the summons issued in the proceedings at law, in the suit of Robertson v. Duncan, was returned by the deputy sheriff Miller, as having been by him executed personally upon Mrs. Duncan and her husband, and we shall consider the case just as if the original summons with the return thereon was still among the files of the papers in said suit. The questions thus presented, aside from those going to the competency of the witnesses, to whose testimony exceptions were taken, are two: --
First, is it permissible for Mrs. Duncan in this proceeding to attack the validity of the judgment against her, by showing that the return of the officer on the writ was false, and that in fact she never had been notified in any manner of the pendency of the suit? and if this question be determined in her favor, second, has she introduced sufficient evidence to overturn the presumption which exists in favor of the truth of the return as made by the officer?
We consider the first of these questions as already settled in this State by the former decisions in the cases of Crawford v. Redus, 54 Miss. 700, and Sivley v. Summers, 57 Miss. 712; but, if it be not, we have no hesitation or doubt in deciding it in the affirmative. The rule that a record is conclusive evidence of its own verity is not applicable in a direct proceeding instituted for the purpose of showing its falsity as to a matter which, if false, shows that the court pronouncing it as a judgment had no jurisdiction of the person of the defendant, and, consequently, that what purports to be a record is in fact no record at all. No consideration of public policy requires that one guilty of no negligence should be concluded by ex parte proceedings, of which he had no notice, because of a declaration made by the court, at the instance of his adversary, that he had such notice. If in fact Mrs. Duncan was not served with the process of the court, by what rule of law or reason shall she be required to submit to have her property sold for the satisfaction of that which is only the pretence of a judgment? It is not sufficient to reply that the court which rendered the judgment has adjudicated the fact that she was served with the summons, for if the summons was not served the court had no power to adjudicate that, or any other fact against her, and the whole fabric falls, unless she is forced, in the outset, to admit as true that which she avers to be false, and that too when upon its truth depends her liability to its burden, and upon its falsity her right to relief. We reiterate what was said in Sivley v. Summers, that, in direct proceedings instituted for the purpose of testing the validity of the judgment, "the truth must prevail, though the record falls." Relief may be sought through the interposition of the Chancery Court.
In determining the sufficiency of the evidence introduced to impeach the record, it is necessary first to eliminate so much of the testimony as was delivered by witnesses incompetent to testify. And, first, as to the competency of Mrs. Duncan as a witness. The controversy is between her and the representative of a deceased person; its purpose is to free her from a liability to the estate existing in the lifetime of the deceased. The Chancellor, however, in the opinion delivered by him, in overruling objections to her competency, states that, though she is prohibited by the letter of the statute from testifying, she is not forbidden by the spirit of the statute, because the facts testified to by her were not in relation to any communication with the deceased, or touching any matter of which he had personal knowledge, and therefore, as he could not have contradicted her if alive, she is a competent witness. We do not concur in this view. The law declares that "no person shall testify as a witness to establish his own claim to any amount, for or against the estate of a deceased person, which originated during the lifetime of such deceased person, or any claim he has transferred since the death of such decedent." There is no limitation or qualification of the prohibition, nor does the case at bar come within the rule laid down in Strickland v. Hudson, 55 Miss. 235. In that case the deceased on a former trial had testified in the cause, and, after her death on a subsequent trial, evidence was given of her former testimony. Under these circumstances it was said that Strickland should have been permitted to testify as to all matters covered by her evidence. It was the introduction in evidence of the testimony of the deceased which rendered him competent as to the matters covered by her evidence. In that case the witness, though dead, spoke through the lips of others, and therefore she was treated as living as to that testimony. It is not what the witness testifies to that makes him competent or incompetent under the statute, but it is the fact that the controversy is between the living and the dead; and the silence which death has imposed on the one the law imposes on the other; absolute equality is sought by the statute, and beyond this we did not go in the case cited.
R. W. Miller, the deputy sheriff, was incompetent to deliver testimony contradicting the return made by him on the writ.
Excluding this testimony, to which objection was made in the court below, the allegations of the complainant's bill are sustained only by the testimony of her husband, which is insufficient to overturn the presumption of the truth of the return. He states that his wife went to the town of Aberdeen, which is out of the county of Colfax, some days before the service of the writ purports to have been made, and did not return until after the rendition of the judgment against her. In this we think he is mistaken, for it is shown that on the second and third days of February (two and three days before the rendition of the judgment) she appeared before a magistrate of the county, and made oath to two pleas in abatement, which were filed in the Circuit Court of that county on the 12th day of February. It is proved that this officer lived in the vicinity of the residence of Mrs. Duncan, and we are impressed with the belief that she was at home, or at least in the county, when these jurats were subscribed by her. If she was there then, there is no reason to believe she was not at the same place at the date of the service of the writ. The husband further testified that the officer delivered to him the copy of the writ for his wife; this may be true, and yet he may have also delivered a copy to the wife; it was his duty so to do, and he returned that he had performed this duty, and in the absence of clear proof to the contrary we must presume that the return is true.
Return to Index to Duncan Research Files in Mississippi
Return to The Genealogy Bug's Home Page