Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug
Last revised November 22, 2010
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Duncan research files of |
1840 Tishomingo Co. MS Census
Pg.228 John Duncan 0010,01 - 1300,01
(MAD: ? 1850 DeSoto Co. MS census)
236 Wm. L. Duncan 1200,01 - 0000,1
1845 Tishomingo Co. MS State Census (FHL film 899,870)
Pg.7 Wiley Duncan 1 male, 4 females
1850 Tishomingo Co. MS Census
Southern Division
Pg.99, #189, Mark A. McCLENDON 29 AL farmer $0
Martha 23 TN
Sarah 7, Gorden (m) 4 MS
Alonzo (m) 2, Malissa 5/12 MS
(MAD: Martha Dunkin mar. Mark A. McClerndon 1842 Itawamba Co. MS)
Pg.117, #416, William L. DUNCAN 48 SC farmer $1750
Rebecca 34 TN
Elihu G. 17, William L. 15 TN farmers
John N. 11, Elizabeth E.F. 7 MS
Mary J. 6, Thomas D. 5 MS
James W. 4, Susan C. 2 MS
Martha M. 3/12 MS
W.R. CORLEY 40 TN dept. sheriff $350
(MAD: from Hardeman Co. TN; Wm. L. Duncan mar. Rebecca Null 10/13/1841; one Wm. L. Duncan mar. Sarah Williams 8/20/1854; ?? Rebecca in ? 1880 Gentry Co. MO census age 84)
Pg.129, #569, Charles R. DUNCAN 45 SC farmer $150
Elizabeth 35 SC
Thos. J. 13, John F. 11 GA
Matilda A.E. 9 GA
James A. 7, Charles P. 5 GA
Joseph H. 1 MS
(MAD: Charles R. Duncan mar. Elizabeth Garner 9/13/1835 Campbell Co. GA; 1840 Paulding Co. GA census; b. 1807 Greenville Co. SC; son Thos. J. ? 1860 Tippah Co. MS census, son John F. ? 1860 in Marshall Co. MS census as J.F.)
Pg.159, #968, Elander DUNCAN (f) 51 SC
Francis M. (m) 20, Capell J.W. (m) 16 AL
(MAD: 1860 census has Wesley 24 AL (unm.); W.J. Wes Duncan Confederate grave, 1834-1909; J.W. Duncan applied for pension 1900 for service in 26th MS Inf.)
1860 Tishomingo Co. MS Census
Pg.211, #1397, C.R. DUNKIN (m) 55 SC farmer $400-500
E.R. (f) 44 SC
M.E. (f) 28, C.P. (m) 16, L.H. (m) 14 GA
S.C. (f) 10, M.A.C. (f) 8, M.M. (f) 2 MS
(MAD: 1870 Prentiss Co. MS census; M.E. definitely age 28, L.H. not J.H. age 14; one C.P. Duncan in 2nd MS Inf., b.1844 Tishomingo Co. MS, d.1920 Alcorn Co. MS, from Confederate grave registration)
Pg.237, #1574, John DUNKIN 40 GA day laborer 0-$300
Louisa 38 GA
Holly D. (f) 20, Louisa 17 GA
John 10, Jeremiah 5, Amanda 8 GA
Robert 2 MS
George 16 GA student
(MAD: 1850 Madison Co. GA census, son of William Duncan d. 1851-1852 Madison Co. GA; John Duncan 3/16/1814 - 3/12/1896, Louisa Ann Duncan, 9/27/1822 - 12/11/1898, bur. Shady Grove Cemetery, Prentiss Co. MS near Alcorn Co. line; 1880 Alcorn Co. MS census)
Pg.333, #2223, Elizabeth DUNCAN 37 SC -- $0-179
Eliza J. 21 AL
Artimesa 15, John R. 13 MS
Jesse M. 12 MS
Sarah E. 8 MS MULATTO
Charles W. 5, Mary C. 2 AL
Wiley R. 2/12 MS
Benjamin F. HOPKINS 25 KY farmer $200-631 (not mar/in/year)
Mary E. 19 MS (not mar/in/year)
(MAD: Benjamin F. Hopkins mar. Mary Eliza Campbell 1/21/1856)
Pg.334, #2224, Francis DUNCAN (m) 29 AL farmer $50-50 (not mar/in/year)
Emeline 15 MS $0-50
(MAD: Francis Duncan mar. Emeline Duncan 5/5/1858)
Pg.334, #2225, Ellenor DUNCAN 60 SC -- $0-50 insane
Wesley (m) 24 AL farm laborer
Pg.464, #3121, William DUNCAN 59 TN merchant $10,000-$10,000
John M. 22 TN clerk
Elizabeth 18, Mary J. 16 MS
Thos. D. 15, James W. 11 MS
Susan C. 9, Martha 6, Rebecca 5 MS
R.D. CATELY? (m) 53 KY trader
(MAD: 1870 Alcorn Co. MS census; Mary Jane Duncan mar. F.H. Sanders of Memphis, TN, 10/29/1867; M.M. or Minnie Duncan of Corinth mar. D.A. Timberlake of Huntsville 11/10/1868; from Huntsville Advocate 17 Nov. 1868, pg.93, Vol.54, "Alabama Records, Newspapers" by Mrs. Pauline Jones Gandrud)
1870 Tishomingo Co. MS Census
Twp.2 Range 9
Pg.277, #49-50, DUNCAN, John 56 GA (white) farmer $80-$0
Louisa A. 49 GA keeping house
Jeremiah 15 GA attending school
Robert E. 11 MS
Georgia (f) 9 MS
Twp.6 Range 10
Pg.329, #6-6, DUNCAN, Betsey 49 SC (white) keeping house $100-$300
Jessey (m) 20 MS works on farm
Charles W. 15 AL
Mary 11 MS
Julyann (f) 8 MS
RICHARD, Wiley 9 MS (white)
Go to the Tishomingo Co. MS Land Records
Tishomingo Co. MS Probate Court Records vol.C, 1836-1848 (FHL film 895,897 item 1; SLC 9/8/2010)
No index
Tishomingo Co. MS Probate Records Vol.L, 1847-1851 (FHL film 895,897 item 2; SLC 9/8/2010)
No index
Tishomingo Co. MS Record Vol.M, 1852-1855 (FHL film 895,902)
No index
Tishomingo Co. MS Inventories & Appraisements, Vol.1, 1858-1869 (FHL film 895,895)
Poor index; no Duncan
Tishomingo Co. MS Chancery Court Records 1856-1868 (FHL film 895,936)
No index
Tishomingo Co. MS Probate Court Docket, v.1, 1859-1885 (FHL film 895,933; SLC 9/8/2010)
In order by date, no name index
Tishomingo Co. MS Final Records (Chancery Court), Vol.B, 1860-1872 (FHL film 895,938)
No index
Tishomingo Co. MS Probate Court Index, Vol.2, 1866-1870 (FHL film 895,896)
MAD: no Vol.1 listed in catalog
Pg.81, #284: W.L. Duncan, lunatic, Rebecca Ducan (sic) Guard, Ptn of Brt. Kinyon et al, and as to writ No. 93-4; Ord. as to Insty No. 172; Ord. as to supt. No. 254; Ord restoring property to Wm. L.D. No. 376; Rec. Ptn No. 4, 191 to 193; Rec. Ptn for Letters &c No. 4 194-5; Rec. Insty. No. 4 292-3-4; Rec. Ptn to restore property No. 5 23.
Pg.243, #812: Wm. L. Duncan, lunatic, Writ of lunacy Ord. R 175; Letters to S.D. Duncan R 185; Rec. writ of lunacy & Rept. of Inquisition No. 9 310-11; Rec. Power of Atty No. 9 312; Ct as to sale land ord. R 303; Petn for sale land dismissed R 339; Ct as to title to Barnett? Ord R 612; Ord pro cin decree for title R 621; Rec proceedings for title No. 10 1513.
Tishomingo Co. MS Probate Court Records
Vol.4, 1851-1853 (FHL film 895,899)
Pg.191-5: Case 284. June, 1852, petition by friends of William L. Duncan that Wm. L. Duncan is insane and a lunatic and (unable?) therefrom to manage his own business and take care of his own concerns; request guardian be appointed to take care of his personal estate and family. Signed by B.N. Kinyon, Wm. A?. Smith, D?.J. Farris, A?.B. Dickson?, W.W. Benaly?, Jas. Rossen??, ??? ?White.
14 June 1852, order to sheriff that it has been suggested to the Probate Court by the family of W.L. Duncan that Wm. L. Duncan is insane and a lunatic and thereby incapable of governing himself ...; sheriff to summon 12 men to act as jury, residing in the neighborhood of Wm. L. Duncan, to inquire if Wm. L. Duncan be an idiot, lunatic, or non compos mentis, whether if insane he enjoy lucid intervals, how long he has been insane or unsound in mind, and whether he is incapable of taking care of himself or his estate. The sheriff summoned A.C. Reynolds, B.N. Kinyon, John W. Patrick, G.W. Smith, Wm. A. Smith, A.M. Phelps, W.W. Bower/Bonds?, A.J. Faris, J.G. Champion, C.D. Kay, A.B. Dilworth, James M. Moore.
14 June 1852, An inquisition taken at the offices of Messrs. Reynolds and Kinyon in the town of Jacinto 14 June 1852; the jury, after inquiry, ... that said William L. Duncan at the time of taking this inquisition is a lunatic and of unsound mind and doth not injoy lucid intervals so that he is incapable of his government of himself or his estate and that he hath been in this same state of lunacy for the space of about two months.
(Undated) Petition of Rebecca Duncan that William L. Duncan has lately been found and adjudged to be a lunatic; that Wm. L. Duncan is in a state of hopeless insanity; that he is possessed of a considerable real and personal estate; that the personal estate according to the estimate of the petitioner is worth about $4,000; request to appoint the petitioner guardian of the person and estate of Wm. L. Duncan.
14 June 1852, bond of Rebecca (+) Duncan, Arthur E. Reynolds, John Reeves, A.J. Faris and D.H. Earley for Rebecca to act as guardian of Wm. L. Duncan.
12 June 1852, appointment by court that Rebecca Duncan is authorized to act as guardian of Wm. L. Duncan.
Pg.292-4: Case 284. 11 Oct. 1852, schedule of personal and real estate of William L. Duncan, a lunatic. Includes note by Isaac Young for $100 due 25 Dec. 1851 and credits 13 April 1852 with $13 paid by a ?? constable for Young to E.G. Duncan, the said note for the ballance in suits in the circuit court; note by W.J. Wilborn, Wiley Belsher now decd, and James M. Johnson; notes or accounts with various others; lands: NE 1/4 Sec.35, T.5, R6E; SW 1/4 Sec.1, T.5, R7E; N 1/2 Sec.31, T.6, R6E; SW 1/4 Sec.35, T.6, R6E; SE 1/4 Sec.33, T.6, R7E; NE 1/4 Sec.34, T.6, R7E; NW 1/4 Sec.27, T.6, R7E; Lot #40 containing 20 acres in Jacinto purchased from A.H. Weis; (and a lot more parcels); also "And A. Cathy's Rect. in words and figures following, to wit: Received of W.L. Duncan by the heirs of E.G. Duncan the following discribed notes and accounts, viz," notes from 1847 to 18 Sept. 1851; estate includes several slaves, horses, etc. Rebecca Duncan, guardian, said the schedule contained true and perfect inventory of the real & personal estate as far as she knows.
Vol.5, 1853-1855 (FHL film 895,898)
Pg.23: Case 284. (no date) Petition of W.L. Duncan shows that at an 1852 term of this Hon. Court, your petitioner was adjudged after inquisition duly made the lunatic and the custody of his person and estate thereupon con...? to his wife Rebecca Duncan who since that time exercised ... guardian to petitioner ... petitioner has for some months since been sound? to his reason and sanity ... and has so continued for a time which ?? assures him of a complete recovery, prays that guardianship end and estate be returned to him.
Vol.9 (FHL film 895,942)
Pg.310-2: 12 March 1866, Petition for Writ of Lunacy, by Thos. D. Duncan, son of Wm. L. Duncan who is at this time an inmate of the Lunatic Asylum of this state at Jackson; that in the wisdom of petitioner the said Wm. L. Duncan is non compos mentis and incapable of taking care of himself ...; petition to summon a jury to examine Wm. L. Duncan.
Order by court to summon jury, 12 March 1866. The sheriff summoned B.B. Boone, J.G. Barton, C.D. Key, L.P. Reynolds, J.M. Nooment?, John Taylor, D.M. Wisdom, Abner Scoggins, Peter W. Nash, Thomas Pinkston, A.J. Faris and G.W. Patrick residing in the neighborhood of Wm. L. Duncan; jury found Wm. L. Duncan at the time of the inquisition a lunatic and of unsound mind and incapable of the government of himself or his estate and has been in the same state of lunacy for the space of two months last past.
15 March 1866, petition for letters of guardianship by T.D. Duncan; that Wm. L. Duncan is worth a sum not exceeding $5,000; that petitioner is a son of said Wm. L. Duncan placed in the lunatic asylum at Jackson, MS, where he is defraying the expenses of having him taken care of and provided for, that all of the next of kin of said Wm. L. Duncan who are of age of majority are desirous of the petitioner taking possession and control of the estate.
Bond by C.P. Elgin, John N. Duncan, John E. Small, E.J. Callahan and B.B. Trousdale for T.D. Duncan to act as guardian.
Vol.10 - no page 1513 (FHL film 895,937)
Tishomingo Co. MS Probate Court Minutes (FHL film 895,931)
Book R, 1865-1867
Pg.175: March, 1866, T.D. Duncan vs. Wm. L. Duncan. Pet. sug. lunacy. Summons for inquisition.
Pg.185: March, 1866; upon hearing, jury found Wm. L. Duncan is non compos mentis and incapable from imbicility of mind of taking care of himself. Wm. L. Duncan owns small real & personal estate which is to some extent enthralled ... petitioner is son ... wish of all of next of kin that pet. control estate, bond by C.P. Elgin, J.A. Duncan, Jno. E. Small, E.J. Callahan and Z.B. Trousdal (by atty). F.D. (sic) Duncan appointed guardian.
Pg.303: August, 1866. Petition for sale of land; ordered that citation issue to Mrs. E.E.F. Elgin and her husband C?.P. Elgin, John A/N. Duncan, M.J. Duncan, Susan C?. Duncan, N?.N?. Duncan and R.F?. Duncan to appear at next Oct. term to show cause why petition should be granted.
Pg.339: Oct. 1866, petition to sell lands to pay debts dismissed by petitioner.
Pg.612: Oct. 1867, Ann Barnett & Jas. Barnett vs. heirs at law of W.L. Duncan, lunatic. Petition for title to land. Ordered by the court that citation issue to the heirs at law of said lunatic, viz, T.D. Duncan (guardian & heir), Jno. N. Duncan. E.E.F. Elgin and her husband C.P. Elgin, M.J. Duncan, Susan C. Duncan, M.M. Duncan and R.W. Duncan ... why said T.D. Duncan, guardian, should not be required to make title to said petitioner Ann Barnett.
Pg.621: Nov. 1867, petition for title; heirs failed to appear; cause be taken for complts. (Ann and James Barnett) as to the adult defendants herein; that W.Y. Baker be appointed guardian ad litum for minor defendants herein, viz, Susan C. Duncan, M.M. Duncan and R.N. Duncan; that W.L. Duncan on 22 Sept. 1860 when sound in mind sold to said Ann Barnett formerly Ann Dobbins 1/2 SE 1/4 Sec.35, Twp.1, Range 71? (7?) E; the sale was fully made; guardian T.D. Duncan to make title.
"Reports of cases in the Supreme Court for the State of Mississippi" containing cases decided at the October term 1883 and April term 1884, by J.A. Brown; Vol.61, pgs.321 to 329 (California State Law Library, Sacramento, 1/2004)
R. N. SAUNDERS et al. v. M. A. MITCHELL et al.; Supreme Court of Mississippi; 61 Miss. 321; October, 1883, Decided.
Appeal from the Circuit Court of Alcorn County. Hon. J. W. Buchanan, Judge.
On the 17th of March, 1866, W. L. Duncan was by the Probate Court of Tishomingo County adjudged to be insane, and T. D. Duncan appointed his guardian. At the time of the inquisition of lunacy there were pending against the said W. L. Duncan, in the circuit court of said county, several suits, to which the said T. D. Duncan, guardian, was made a party by scire facias, and in these judgments for large amounts were entered in September, 1866, against T. D. Duncan, guardian, and upon the executions which followed, it appears by the return certain real estate, including the land in controversy in this suit, were pointed out by the guardian as the property of W. L. Duncan, and levied upon and sold, on the 4th day of March, 1867, and one A. B. Dilworth became the purchaser, entered into possession, and afterward conveyed the land by deed to appellees, who in 1873 erected on the part in controversy valuable improvements. On March 5, 1868, the said W. L. Duncan was upon his own petition adjudicated a bankrupt, and J. E. Gillenwater was, on the 7th day of December, 1868, duly appointed his assignee with the usual order, vesting in him the property of the bankrupt. The said W. L. Duncan with his petition in bankruptcy, filed a schedule of his debts, amounting to forty thousand dollars, and also a schedule of his assets, valued at about twelve hundred dollars, but did not include therein or anywhere refer to the property involved in this suit. On the 20th of January, 1869, said W. L. Duncan obtained his discharge from said bankrupt suit, and in August, 1876, died intestate, leaving as his heirs the appellants, who sue in ejectment, to recover the land in controversy, claiming it as heirs of said Duncan. Judgment was rendered against them in the court below and they appeal to this court.
COUNSEL: Houston & Reynolds, for the appellant.
1. Guardians of lunatics have the same power and authority over the lands of their wards as executors and administrators have. The lands of the lunatic cannot be sold under a judgment rendered against his guardian. They can be disposed of alone by the guardian acting under the decree of the probate or chancery court. The sale under the judgment did not pass any title.
2. The land in controversy in this suit was never sold by the assignee in bankruptcy, was never administered in any way in that court. The estate has been finally settled. The assignee and creditors are now barred from any proceeding to reach this land and administer it in the bankrupt court. The adjudication in bankruptcy vests the title of the bankrupt in the assignee, as trustee for creditors and the bankrupt. He can sell to pay debts and expenses, but if there are no debts and expenses, or if they are satisfied or barred, what becomes of the property not disposed of? There is no law which vests it in the assignee, and none which authorizes a reconveyance to the bankrupt. What becomes of it? The question is fully answered in the authorities cited, and the principle announced, that the property re-vests in the bankrupt and at his death in his heirs, and the principle is sustained by reason and authority.
C. E. Stanly, on the same side
1. The defendants could not acquire the title from the sheriff's sale under the judgment against the guardian, because the judgment was void. The circuit court had no jurisdiction. The judgment to be effective should have been against William L. Duncan in person, not against his guardian, T. D. Duncan. While W. L. Duncan's lunacy did not divest him of the title to his property, yet his estate should have been all administered and wound up by the probate court. The jurisdiction of the probate court is exclusive over matters confided to it by the constitution. The court of probate is a court of original and general jurisdiction as to matters confided to it by the constitution.
2. Are appellants precluded from recovery by the pretended bankruptcy of William L. Duncan? He was adjudged a lunatic by the Probate Court of Tishomingo County in March, 1866, and a guardian appointed. This was conclusive proof of fact of lunacy. After a general derangement has been shown it is then incumbent on the defendants to show that the party who did the act was sane at the very time it was performed. If the title by any means could have passed to the assignee, when the assignee was discharged, and the bankrupt discharged the property not administered, was not Duncan reinvested with the title?
Whitfield & Young, for the appellees.
1. The judgments and decrees of a bankrupt court are conclusive and cannot be impeached collaterally, except for want of jurisdiction in the court. If the sanity of the bankrupt was essential to the validity of the judgment, then since insane persons do frequently recover, or have lucid intervals, the presumption that ominia rite acta applies and protects the judgment. But an insane person can take the benefit of the bankrupt law.
2. If then the proceedings adjudging W. L. Duncan a bankrupt were not utterly void, his title to the land in question was thereby by operation of law, absolutely vested in Gillenwater, his assignee.
3. The argument of the plaintiff in error seems to be that the fact that the assignee has not asserted a claim to the property although in consequence of the false inventory filed, raises a presumption that he has abandoned or resigned his trust and title, and that such abandonment operates to cancel the judicial proceeding by which he acquired his title, and the property reverts to the bankrupt for the want of another claimant, because he ought to have what his creditors do not claim. The error in this is manifest. See Atwood v. Thomas, 60 Miss. 162, which is conclusive of this case as to effect of bankruptcy proceedings.
Green & Boone, on the same side.
1. In the first place we insist that the judgment is only informal or voidable and not void, and if not void the title passed to Dillworth. It will be observed that the judgment in this case is not against T. D. Duncan de bonis proprius, but that the judgment and execution are against the estate of W. L. Duncan.
2. Appellants are estopped.
COOPER, J., delivered the opinion of the court.
The sale of the land of the lunatic under an execution issued on a judgment against his guardian was a nullity and the purchaser acquired no title. After the appointment of a guardian by the probate court, the statute required that the lands of the lunatic should be sold for the payment of his debts, contracted when he was of sound mind, in the same manner as sales of land of a decedent were required to be made for the payment of his debts, and such sales could only be made by order of the probate court. Notwithstanding the appointment of a guardian by the probate court, it was within the power of the bankrupt court to make an adjudication of bankruptcy on the petition of the lunatic, for though he had been adjudged a lunatic, it may be that he afterward recovered or had lucid intervals. By the decree on the inquisition of lunacy against Duncan, it was conclusively settled that he was a lunatic at the time of the decree, but not that he always would be. The bankrupt court was a court of record, and decrees of such courts cannot be collaterally attacked by showing that a party plaintiff or defendant was a lunatic at the time of its rendition. If the bankrupt was a lunatic at the date of the adjudication of bankruptcy, the bankrupt court proceeded in error of fact, and the mistake should have been pointed out by a writ of error coram nobis. The principal question presented is whether by reason of the discharge of the bankrupt and the assignee, and the lapse of time since intervening, there had been a reinvestment of the title of the bankrupt to the land sued for, in his heirs-at-law, so as to enable them to recover in ejectment against one having no title. The land sued for was not included in the schedule of assets filed for the bankrupt, but that was not necessary to transfer the title to the assignee, the title passed to the assignee by reason of the adjudication of bankruptcy, the appointment of the assignee and the conveyance made by the register. Whatever title the bankrupt had passed to his assignee, the question is has it ever passed back to him or his heirs? In Steevens v. Earles, 25 Mich. 40, it was held that the bankrupt was entitled to the surplus of his estate remaining after the payment of all debts proved against it, and after the lapse of thirty years it was presumed that all debts had been discharged, and the heirs of the bankrupt were permitted to recover in ejectment lands which had not been returned by the bankrupt on his schedule. On the other hand, it was held in Robinson v. Denny, 57 Ala. 492, that the heirs-at-law of a bankrupt could not maintain an action to recover lands which belonged to him at the time of his bankruptcy, although it was shown that the bankrupt and his assignee had been discharged, and that all debts due by the bankrupt had been paid or legally satisfied, the court saying: "It is doubtless true, that if after the payment of the debts, which may be proved against the estate of a bankrupt, a surplus remains in the hands of the assignee, he holds it in trust for the bankrupt, and that on a proper application to the court of bankruptcy, payment or a transfer of it will be decreed. Until the decree is obtained the title remains in the assignee, and if the surplus consists of rights in action, he alone can maintain suit founded upon them. No other court can properly inquire whether the debts of the bankrupt are satisfied, and what are his rights and equities, or the rights and equities of the assignee or of creditors."
The bankrupt act made no provision for the reconveyance by the assignee to the bankrupt of any surplus of the estate which might remain after payment of the debts proved against the estate, but such surplus of necessity belongs to the bankrupt. It cannot be held by the assignee for he is a mere officer of the court and holds the title officially not personally. It cannot be appropriated by the creditors, for they never have any right to the property itself, but only to have its proceeds applied to the payment of their demands, and when these are satisfied they are strangers both to the bankrupt and to the estate. Since the law makes no provision for a reconveyance of the estate, and the bankrupt is the only party entitled thereto on the execution of the purposes for which it is taken, it seems to us that there is reverter of the original title to the bankrupt by operation of law. But such reversion ought not to be presumed or found, in the absence of clear and full proof of the complete execution of the purposes for which the property is held by the assignee.
Where, as in the Michigan case, there had been a lapse of sufficient time, twenty years, to raise the common-law presumption of payment of all claims, we are not prepared to say that this would not be sufficient to authorize a recovery of the land in an action of ejectment brought by the bankrupt or his heirs. If also it should be made to appear, as in the Alabama case, that the debts had been actually satisfied, or if there was clear proof of an abandonment of the property by the assignee and creditors, we are unable to see why such action might not be maintained.
But it cannot be said that the assignee or creditors of a bankrupt have abandoned property the existence of which was unknown to them, for an abandonment implies an election not to take the property, and an election implies knowledge of the thing abandoned.
In this case it is shown that the property sued for was not put on the schedule by the bankrupt. The estate actually surrendered was insufficient to pay the costs of the bankrupt proceedings, and there is nothing shown from which it may be inferred that either the assignee or the creditors had any notice of the bankrupt's right to the land. The bankrupt was by law charged with the duty of making a full disclosure and surrender of all the property owned by him. This he failed to do. Proof of debts by the creditors would have availed them nothing, if the whole estate had consisted of the property returned by the bankrupt and their failure to prove their claims under such circumstances cannot be said to be a surrender of their debts. They were warranted in assuming that there was no other estate than that described in the schedules, and neither the bankrupt nor his heirs ought under these circumstances to be permitted to say that the creditors or the assignee abandoned the property to him or to them.
The defendants may not be entitled to retain the property, but neither are the plaintiffs entitled to recover it.
The judgment is affirmed.
CHALMERS, J., dubitatur. I doubt without dissenting from the conclusion reached.
It is manifest from the record that the bankrupt omitted the land in controversy from his schedule because ignorant of his own superior title to it and with no fraudulent design. Many years have now elapsed since his own discharge in bankruptcy and that of his assignee. There is no intimation of any intention to proceed further in bankruptcy by any creditor, nor indeed any proof that there are any existing creditors. I doubt under these circumstances whether the present holders of the property can raise the question of his former bankruptcy and his loss of title thereby.
If they were marked trespassers, I would say with confidence that they could not, but they hold, and have held for many years under color of title, and as plaintiffs (the heirs of the bankrupt) can only oust them on the strength of their father's title, which is constructively in custodia legis for the benefit of any possible creditors through some assignee to be hereafter appointed, it may be that my associates have reached the correct conclusion.
AL Confederate Service Records, 1861-1865, cards in AL State Archives; Driver to Elich (FHL film 1,462,918)
MAD: most items were small typed cards, 3x5; some items were very blurred in the filming and were double images and hard to read. Cards had name and rank in upper left corner, service unit usually in upper right corner, notation if Home Guard, details from source were given in center of card, and the "Authority" as the last line on the card. The service record from the Historical Record Roll frequently listed several engagements he served in, dates wounded, absent, present, etc., and I usually did not copy all the details.
Duncan, Wesley, Private, Co.H?, Morelands Cavl. Regt. May 1, 1864, Burnsville [Tishomingo Co.], MS, for 3 years. Never paid. Absent without leave since June 1, 1864. Authority: Muster pay roll (photostat) Sept. 16, 1864.
From a scrapbook in the Corinth [Alcorn Co.], MS, Courthouse (from Bobbie McDowell 8/1982; copy is white print on black background, includes photo.)
THE CORINTH HERALD'S - HON. W.L. DUNCAN
Among the pioneer citizens of old Tishomingo county no one is entitled to more consideration and appreciative remembrance than the Hon. William Lane Duncan. For thirty-six years he was a conspicuous figure in the development of the county and on many occasions took the lead in matters of more than general interest to the citizens of the great "State of Tishomingo." As a man he was admired by all; while those who differed from him politically were forced to acknowledge him a foeman worthy of their steel. He was a fluent speaker, and few of his contemporaries cared to cross lances with him on the hustings. He was opposed to seccesion, but after Mississippi had severed the ties binding the great commonwealth to the Federal union, he fell valiantly into line and worked unceasingly for the success of the Stars and Bars, and when the banner of Southern rights was furled, he assisted in bringing order out of chaos and helped to make it possible for the people to nobly build upon the ashes of the past.
William Lane Duncan was born in South Carolina in 1800. His facilities for acquiring an education were limited, but he made the best of such as were at hand. In the latter part of the '20's he, together with his father, Thomas Lane Duncan, and two uncles, John F. and E. Garner, emigrated to Russell's Valley, Alabama, and thence to Hardeman county, Tennessee.
Thomas Duncan, after the surrender of the lands to the government by the Chickasaws, moved to Pontotoc county, Mississippi, and before his death acquired an immense fortune.
John F. Duncan moved to old Tishomingo county in 1834 and was elected a member of the first board of police of the county in the spring of 1836, serving two years. He later moved to Pontotoc county, where he resided the remainder of his life.
E. Garner Duncan, Sr., moved to Tishomingo county in 1848, but only remained a short time, returning to Hardeman county, Tennessee, where he lived to the day of his death.
Wm. L. Duncan was married to Miss Rebecca Null, in Hardeman county, Tennessee, on the 7th day of November, 1830, and in 1842 moved to Tishomingo county, where he lived the remainder of his life. In October, 1845, he was elected sheriff of Tishomingo county, and was re-elected in October, 1847. During his first term he executed James Adams, the first person to be hung in the county, and while serving his second term hanged Adaline, a slave. He refused to make the race for a third term, but accepted the appointment as superintendent of the State penitentiary, but owing to ill health was unable to fill the position, resigning shortly after receiving the appointment. Mrs. Duncan died in 1852 and was buried in the Jacinto cemetery, and the same year Mr. Duncan embarked in the mercantile business in Jacinto with a Mr. Smith; and in 1857 purchased his partner's interest and conducted the business alone until 1859, when he moved to Corinth [Alcorn Co. MS after 1870], forming a partnership with Mr. J.C. Terry. Their stock of goods was destroyed by the Federal army. Mr. Duncan was also an extensive buyer of cotton, and when the Confederates were preparing to evacuate Corinth he had 162 bales of cotton stored on the lot where the union freight depot is now located, and which were burned by order of Gen. Beauregard when the army left for Tupelo. When Gov. Pettus issued a call for sixty day troops, in 1861, and designated Corinth as one of the points of mobilization, Mr. Duncan was appointed quartermaster, but the volunteers began to arrive before the governor had prepared the quartermaster for their reception, and as a result Mr. Duncan advanced $5,000 with which to purchase supplies. Gov. Pettus a few days later forwarded Mr. Duncan $50,000, and thereafter everything moved along like clock work. At the close of the war Mr. Duncan was chosen to represent Tishomingo county in the State convention, July, 1865, and also served a term in the State Senate. He died on the 11th of August, 1876, and was laid to rest in the City cemetery, but was later disinterred and buried in Henry cemetery.
Pontotoc Co. MS Deeds (FHL film 897,523)
6-798: 21 Jan. 1850, Wm. L. Duncan, admr. of Horner Warren decd, to Wm. R. Pannell, reference to Probate Court of Tishomingo Co. held 2nd Monday of Oct., 1849, which ordered land in Pontotoc Co. be sold; SE 1/4 Sec. 19, Twp.7, Range 4E; publicized in "Tishomingo Democrat" ... No wit.
6-830: 21 Jan. 1850, Wm. L. Duncan, admr. of Horner Warren decd, to Louisa W. Warren ... (not copied)
6-832: 21 Jan. 1850, Wm. L. Duncan, admr. of Horner Warren decd, to William Dickson, Arthur C. Barton and Jno. W. Rutland, exors of will of Armistead Barton, decd, late of Franklin Co. AL ... (not copied). Wm. L. Duncan appeared in Tishomingo Co. MS to acknowledge deed.
Monroe Co. MS Deed (SLC 6/21/2008)
14-260: 21 Jan. 1850, William L. Duncan, admin. of Horace Warren decd of Tishomingo Co. MS, to Louisa V. Warren, per order of probate court 2 Oct. 1849, to sell the land in Monroe Co. (more not copied), sold to highest bidder for $7. William L. Duncan appeared in Tishomingo Co. MS. (FHL film 878,387)
1890 "Biographical and historical memoirs of eastern Arkansas : comprising a condensed history of the state, a number of biographies of distinguished citizens of the same, a brief descriptive history of each of the counties named herein, and numerous biographical sketches of the prominent citizens of such counties" White, Woodruff, Cross, Ciittenden, St. Francis, Monroe, Lee, Arkansas, Prairie, and Phillips counties; by Goodspeed (FHL book 976.7 H2bhm and film 934,823 item 3, and from Evelyn Sigler 11/1983 and index cards of Kit Smith 8/1983)
Pg.155, White Co.: T.A. DUNCAN, farmer, b. Jackson Co. AL 1830, oldest of eight children of Jesse and Nancy E. (White) Duncan who were born in TN. The father [Jesse] reared at Nashville [Davidson Co.] and mother near Winchester, married in TN. Moved shortly after marriage to Alabama, was a millwright, he d. 1884, his wife d. 1883. Children: T.A. of White Co. AR; W.R. of TX; James H. of AL; J.C., married, of Kansas; Mary, Mrs. Selby, living near Iuka, [Tishomingo Co.] MS; Elizabeth of Iuka, MS.
T.A. Duncan married Jan. 1849 to S.B. Pace in AL, was in Confederate Army, Berry's Artillery; prisoner; 1865 paroled and returned to Jackson Co. AL; in 1872 moved to White Co. AR; Democrat. Mrs. Duncan's parents, Wm. and Elizabeth (Wininger) Pace, VA to AL 1827. Wm. Pace d. 1870, Eliz. d. 1871.
Children of T.A. Duncan: William F.; Cassie, married A.J. Holleman, died 1885 at 28; B.E.; J.J., married and living in Cleburne Co.; Minta, married A.J. Holleman after Cassie died, of White Co.; Nancy (Mrs. J.F. Lawrence); C.A. married F.W. Raney; and Mila and Jo still at home.
1912 "(History of) Southeast Missouri, a narrative account of its historical progress, its people and its principal interests" 2 Vols., by Robert Sidney Douglass; pub. by Lewis Pub. Co. (Los Angeles Public Library book 977.8 D737; FHL book 977.89 H2d and film 1,000,278 items 1-2)
Counties of Ste. Genevieve, Cape Girardeau, New Madrid, Madison, Washington, Perry, St. Francois, Bollinger, Pemiscot, Dunklin, Mississippi.
Pg.1209-10: (New Madrid Co.) BURWELL A. DUNCAN, M.D. Grandson of a soldier of the Revolution, son of an ardent SC secessionist and a member of the convention at Charleston, brother to three officers of the Confederate army, himself a soldier surgeon in the grewsome fields of battle, Dr. Burwell A. Duncan is a citizen whom Morehouse is proud to claim.
Robert Duncan, the grandfather of Revolutionary fame, was married to Hannah Carr. Their union was blessed with twelve children, one of whom, John by name and the eldest by birth, came to Missouri early in the 19th century and had a family of twenty-four children. Those were times of large families. Perry Duncan, father of Burwell, had eleven children.
The birthplace of Perry Duncan was Greenville, SC, and May 26, 1800, was the date of his birth. His wife was Mary Hill, of Wilkes Co. GA, where her father had his plantation. She was 14 years younger than her husband, to whom she was married when she was nineteen years old. ... A devout Methodist ... Perry Duncan had been prominent for years in the legislature of his state and he was a member of the seccession convention held at Charleston, SC. His name is carved on the marble tablet at Columbia, SC. It was to be expected that his sons would go to the front as they did. Robert P. was an adjutant and served on General Dick Anderson's staff. Wiley was one of Butler's guards in the 4th SC. James was a captain and Burwell surgeon of the 2nd Mississippi Regiment.
The Doctor was born at Greenville, SC, March 24, 1835. He attended the academy at Greenville and then went to Furman University. In 1855 he began the study of medicine and graduated in 1857 ... After his graduation Dr. Duncan went to Mississippi and practiced his profession in that state until he came to Morehouse in 1906. It was in Mississippi that his mother, Mrs. Perry Duncan, died in 1868, three years after her husband had passed away on his plantation in Georgia.
Dr. Duncan's first marriage took place in 1858 at Aberdeen, MS. The bride was Miss Celestia Strong, daughter of General Elisha Strong. She was two years younger than Dr. Duncan and their union lasted over thirty years, until it was dissolved by Mrs. Duncan's death in 1890. Their son, Rev. Perry E. Duncan, was born in 1862. He became a Methodist minister of note and was married to Mary, daughter of Lafayette Smith, who bore him five children. His death occurred February 9, 1905, at Iuka [Tishomingo Co.], Mississippi, where he was one of the most prominent men of his denomination. The daughter of this marriage, Anna Duncan, became Mrs. Thomas G. Blackwell, wife of the present judge of county court in New Madrid county, Missouri. She has two children.
On January 30, 1904, Dr. Duncan was married to Mrs. Julia Watson Manning, daughter of Asa Watson and widow of Payton Manning, a colonel on General Longstreet's staff. Dr. Duncan ... His church is the Methodist, South.
"History of Mississippi" Vol.1, by Richard Aubrey McLemore, 1973 (FHL book 976.2 H2hm; from Gloria Baker 1993)
Pg.425 includes reference to a letter by W.L. Duncan, 8 June 1855, to Fontaine in an article on Separation from the Union, 1854-1861; from the Fontaine Papers.
"History of Old Tishomingo Co. MS Territory" 1969, by Fan Alexander Cochran (FHL book 976.2995 H2c and film 908,066 item 3; from Evelyn Sigler 1984 and Joe Hammond 1985)
This volume contains references to John Duncan in 1836, William L. Duncan in 1840's, and Duncans in the 1860 Militia and later.
"Tishomingo Co. MS Records 1836-1870" by DAR (FHL film 868,499)
Item 1, pg.185-187, refers to Newspaper articles by Thos. D. Duncan, historian; Item 2 "History of Tishomingo Co. MS 1832-1887" copied by Reynolds, DAR, 1955, includes articles taken from the "Corinth Herald" Historical Edition, Corinth, MS, Dec. 15, 1903, which mention William L. Duncan.
1923 "History of Clarke Co. AL" by John Simpson Graham, reprint 1994 (FHL book 976.1245 H2g)
Pg.172 of this book includes reference to Thomas D. Duncan.
"The Grays - relatively speaking, the Timothy chapter" by Ruth Gray Marlar and Ollie Mae Gray O'Connor, 1983 (FHL booklet 929.273 A1 no. 4245 and film 1,321,021 item 12; from Evelyn Sigler 1984)
This booklet includes reference to George Washington Gray, b. 1799 Jackson Co. GA, mar. 9 Dec. 1815 Oglethorpe Co. GA to Holly Carter, b. ca 1800. Their dau. Louisa Ann Gray, b. 27 June 1822, d. 11 Dec. 1898 in Tishomingo Co. MS, married John Duncan, b. 19 July 1838 Madison Co. GA. Louisa and John are buried in Shady Grove Cemetery a few miles north of Burnsville, Tishomingo Co., MS. Children: John, Holly, Jerry, Mandy, Robert, Georgia.
END
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