Duncan research files of
1800 Buncombe Co. NC Census; semi-alphabetic (and from Alice Duncan) Pg.161 Stephen Bennet 20010 - 21010 - 00 and other Bennet families 166 John Duncan 00001 - 01001 - 00 180 David Marlow 10100 - 10010 - 00 1810 Buncombe Co. NC Census Pg. 72 Elijah Lynch 10100 - 10100 76 James Linch 00100 - 10100 77 Jamez Linch 00001 - 00001 85 Thomas Duncan 21110 - 20110 Martha Marlow 10110 - 00101 88 Thomas Dugan 01001 - 02001 William Dugan 00100 - 10100 (next to Thomas) 1820 Buncombe Co. NC Census (from Alice Duncan) Pg. 70 Jane Duncan 000001 - 00000 Bennett families 1830-1840 Buncombe Co. NC Census No Duncan indexed
1850 Buncombe Co. NC Census
Pg.190, #18, Hotel of D. REYNOLDS, date blank
J. DUNCAN 30 NC stage driver
Pg.207, #158, Hotel of Danl. REYNOLDS, July 14
John DUNCAN 30 NC stage driver
1860 Buncombe Co. NC Census (second page number is stamped number)
Pg.643/321, #776, J.S. RICE (m) 31 NC farmer
Jarusha 30 NC
J.M. (m) 27 NC
Lewis DUNCAN 10 SC bound boy
Margaret CELIA 32 SC domestic
Pg.655/327, #54, A.M. ALEXANDER (m) 41 NC
Susan C. 42 TN
Sally VANCE 18 NC
N.J. ALEXANDER (f) 17, H.E. (f) 15 NC
S. Kate (f) 13, Emma F. 7 NC
M.B. (f) 2, J.A. (m) 4 NC
Berry COGGINS 28 NC, Feasil B. 18 TN
A.A. DUNCAN (m) 31 NC stage driver $0
T.S. WOODSON (m) 39 NC
Barbary HILL 46 NC
Ivy & Flat Creek
Pg.684/341, #244, Henry DUNCAN 49 NC farm laborer $0-$0
Stacy (f) 29 NC
Mira 19, Lucinda 16, Wiley 19 NC
Alfred 14, Frank 13, Hiram 5 NC
Hester A. 4, Matilda 3, Laura J. 1 NC
(MAD: 1850 Wilkes Co. NC census; mar. Stacey Anders 1856 Yancey Co. NC)
1870 Buncombe Co. NC Census
Ivy Twp. #12
Pg.144, #10-11, HERILL, M. (m) 50 NC (white) farmer $125-$300
Darcus (f) 28 NC no occupation
DUNCAN, Jane 11 NC (white) no occupation
Pg.144-145, #14-15, DUNCAN, H. (m) 52 NC (white) farmer $0-$0
Stacy 40 NC keeping house
Hester A. (f) 14 NC no occupation
Sarah M. 12 NC no occupation
Martha L. 11, John H. 9 NC at home
Harriet S. 7 NC at home
James W. 5, William 4 NC
Nathan 3, Joel F. 6/12 b.Feb. NC
Land records, North Carolina and Tennessee; indexes, 1600-1959; by NC Secretary of State, Land Grant Office (Placerville FHC on loan 1/4-5/2012)
Land warrants are documents issued at local land offices to purchasers of public lands. When these warrants are surrendered, the buyers are issued conveyances (deeds). The land warrants (and other miscellaneous records) are organized by file numbers in alphabetical sequences of counties. Some of the counties are now Tennessee counties. These records are in packets. On each packet cover are spaces for the following information: file number, county, purchaser's name(s), number of acres, grant number, date issued, entry number, date entered, book number, page number & location. ... The key to finding the related packets are the file numbers.
Land grant index cards, 1693-1959, Archibald Caddell (Richmond) - William Durram (Buncombe Co.) (FHL Film 1,942,614)
Duncan, John, File No.860, Buncombe Co., 50 acres, Grant No.901 issued 23 July 1801, Entry No.8174 entered 9 Oct. 1800, Book No.111, page no.33, Location: On both sides of Puncheon Camp branch
Buncombe Co. NC Deeds (from index in "Buncombe County, NC - Index to Deeds, 1783-1850" by James E. Wooley, 1983, from Alice Duncan)
A-216: 26 Aug. 1806, Thomas Dugan of Buncombe Co. NC to William Dugan, son of said Thomas Dugan, for natural love and affection to William Dugan his son as also for the better maintenance and prefirment of the said William Dugan, all that parcel or tract of land belonging to said Thomas Dugan lying on the south side of Buckhorn for(k) of Clear Creek (no acreage or meets and bounds description). Wit. Jonathan Parris, John Morrison, John Smith. (FHL film 410,548)
A-462: 18 Aug. 1807, William Thomas to John Duncan, $210, 77 acres on north side of Newfound Creek and a branch emptying into said creek opposite Biffles, corner Biffles & Thomas division, David Johns land. Wit. Thomas (+) Plemon, Thomas (X) Perry, Ezekiel Lanlin. Ack. Oct. 1807, Reg. 29 Dec. 1807. (FHL film 410,548)
B-38: 2 April 1808, John Bennet to John Love, $1, 100 acres on Clear Creek joining John Bennet's land, William Mills line. Wit. James Kincaid, John Morrison. (FHL film 410,548)
B-167: 10 Oct. 1801, Joseph Dobson of Burke Co. NC to Stephen Bennett & William Bennett & John Bennett and H.W?. Bering?, £40, 400 acres on North sink? of M... Tow River and on the Pig Pen branch. Wit. Samuel McKinney, Bartlett Renfrow. (FHL film 410,548)
F-17: 15 Feb. 1812, William Rogers and William Robertson, administrators of estate of Julius Robertson decd. of Buncombe Co. to John Bennett Senr. of same, Bennett authorized by power of attorney from Bartlet Rogers to ask & demand of us a title to land said deceased sold to said Bartlett Rogers and gave title bond, purchase price was paid, bond proved in court, Rogers & Robertson make deed, $100 paid, 100 acres, part of 300 acre tract deceased lived on at time of death on Caney River, beg. ... mouth of first bold branch above Sugar Camp on east side of river. Wit. Moses Honeycut, John? Bennett. (FHL film 410,548)
H-104: 21 Sept. 1815. Thomas Dugan to Andrew Maxwell, both Buncombe Co. NC, $600, 202 acres, part of three tracts of land in Buncombe Co., beg. ... conditional corner made by W.H.? Logan? and Gordon? Maxwell marked "WA", ... joining 200 acre tract beg. ... conditional corner made between William Dugan and Andrew Maxwell, ... Wit. John Justice, Daniel Justice. Rec. Oct. 1815, Reg. 27 Jan. 1816. (FHL film 410,549)
3-423: 2 Dec. 1807, NC Grant #1681, 50 shillings per 100 acres, to William Bennet, 100 acres on south side Huckelbery Mountain on waters of Clear Creek, including Solomon Cresses improvement for complement; entered 24 Feb. 1804. Reg. 23 Jan. 1808. (FHL film 410,550)
5-247: (last day of) 30 Sept. 1800, James Bennett Senr. of Granger Co. TN, to Thos. Ray Junr. of Buncombe Co. NC, $550, 320 acres on Caney River on east side of said river. Wit. Hickman Hensley, Richard (X) Bennett, James (X) Bennett. (FHL film 410,550)
5-248: 26 Dec. 1800, Zepheniah Horton Esq. to Richard Bennett, yeoman, both Buncombe Co. NC, £100 NC money, 100 acres on both sides of Jack's Creek. Wit. John (X) Hammons, Moreday (X) Edwards. (FHL film 410,550)
6/1-144: 8 Oct. 1820, Mathew Dever to John Bennett, $37-1/2, 150 acres on east side of Pigpen River. Wit. Benjamin Clarke, Richard Dever. (FHL film 410,551)
6/1-217: (very faint) 1 Sept. 1800, NC Grant #788 to Stephen Bennett, 100 acres east side of Caney River, joining James Bennets lines ... an improvement made by Stephen Bennett, entered 26 May 1795. (FHL film 410,551)
6/1-238: 14 Nov. 1800, NC Grant #2378 to William Bennet for 5 shillings per 100 acres, 100 acres on Clear Creek joining his own land, entered 17 Aug. 1798. (FHL film 410,551)
7-256: 1 Sept. 1802, Martin Manly to Joseph Walker, $400, 200 acres on waters of Ivy on big branch that runs into Ball Mountain Creek above Choats, entered 23 Oct. 1789. Wit. Charles Earles? (Eales?), John Halcomb. (FHL film 410,551)
7-475: 12 July 1806, Thomas Ingon (looks similar to Dugan but signature written above in different writing: "Ingram") to Saml. J. Hunter of Chester Co. SC, $45, 50 acres on head of a small branch of Clear Creek on south side of Bald Top Mountain, as will appear by a patent 18 Dec. 1804. Wit. David McMilon, Jonathon Parris. (FHL film 410,551)
7-648: 3 April 1806, Pierce (X) Cody to William Allen, both Buncombe Co. NC, $100, 150 acres on long branch water of Ivy, beg. on south side of said branch, crossing branch. Wit. Dan Ball, Robert Robards. (FHL film 410,551) (MAD: Probably the father of the wife of Washington P. Duncan of White Co. TN)
8-252: 2 Oct. 1801, John Chamners of Buncombe Co. NC to Thomas Dugen of Chester Co. SC, £60 NC currency, 100 acres (by computation) in Buncombe Co. on Buck horn branch of Clear Creek, NW corner of William Mills land, on the ridge of the Green Mountain, Chamness line, as will appear by pattent 23 July 1801. Wit. Will Walton, Will Dugen. Ack. in court April, 1804; Reg. 13 May 1805. (FHL film 410,551)
8-371: 18 Dec. 1804, NC Grant #1404 to Thomas Dugan, 50 acres on the head of a small branch of clear creek that Jesse Horton now lives on the south side of the Bald top mountain, beg. ... on a ridge of the bald top mountain leading to the Pine Mountain, ... south side of a ridge, ... entered 10 Aug. 1802 as by the plat hereunto annexed doth appear... Provided always that the said grantee shall cause this grant to be Registered in the Registers Office of our said County of Buncombe within twelve months from the date hereof otherwise the same shall be void. Reg. 29 Oct. 1806. (different handwriting) "Copied Aug 1902. by Miss Bessie Penland." (FHL film 410,551)
10-174: 25 Nov. 1799, John Strother to Pierce Cody, $21-1/2, 2 parcels on Joy? (Ivy?) River joining said Cody's land, 100 acres, and 100 acres part of large tract granted to John Brey Bount of 320 acres, 640 acres, sheriff's deed to said Strother 29 Sept. 1798. Wit. Edmond Palmer. (FHL film 410,552)
10-391: 28 March 1806, Bazel B? Edmondson to Pierce Cody, £28, 150 acres on Cody branch, a water of Ivy. Wit. Solomon Israel, Abram Whittamore. (FHL film 410,552)
12-44: 7 Sept. 1818, John Whitson to John Bennet Junior, $100, 50 acres on Cany River, beg. ... Julius Robertson's corner. Wit. Nathan Horton, Z. Horton (Norton?). (FHL film 410,552)
12-239: 5 Jan. 1818, Jane (+) Duncan to Thomas Flemings, $9, 3 acres on Little Newfound taken off a tract of land belonging to said Jane. Wit. Wm. Triplet, Egman Triplet. (FHL film 410,552)
12-557: 24 May 1808, Samuel Campbell of Philadelphia, PA, to Sanford S. Bennet of Sunbury in Delaware Co, OH, $15,000, undivided half of land in Buncombe Co. NC (FHL film 410,552; not copied further).
13-68: 24 July 1820, William Dunam (Durram? Durrum?) to Joseph Oliver, $100, 200 acres on both sides of French Broad River joining Casson's land to west, incl. where said Oliver now lives. Wit. Benjamin Olliver, William Deboarg?. Reg. 27 June 1823. (FHL film 410,553)
13-208: 24 Aug. 1821, Hiriam? Edmonston of Haywood Co. NC ... (FHL film 410,553; not copied)
13-208: 12 Feb. 1816, John Bennett to Nathan Drake, $25, 25 acres on Clear Creek, part of 200 acres joining sd. Bennet's land. Wit. Arthur Corn. (FHL film 410,553)
13-526: 5 Feb. 1811, John Bennett to Robert Lowe?, $80, 53 acres on Clear Creek joining Bennet's land. Wit. John Lowe?, N?. F?. ...? (FHL film 410,553)
14-148: 15 Nov. 1821, Isaac Whitson to John Bennet, $150, 54 acres on N. side Cany River. (FHL film 410,553)
15-33: 18 Dec. 1803, Joseph Dobson to Richard Bennet, (no "in consideration of the sum of" phrase), 400 acres. Wit. Charles Sevier, Bery Thinsley. (FHL film 410,553)
15-50: 6 Sept. 1809, Richard (+) Bennet to John Bennet, $100, 400 acres on Pigpen. Wit. William Ivans?, Judy (X his mark) Bennett. (FHL film 410,553)
15-91: 29 Sept. 1805, Joseph Dobson of Burke Co. NC to William Bennett of Buncombe Co. (50 acres on Tow River). Wit. William Ivans, Stephen Bennet. (FHL film 410,553)
16-45: 4 Jan. 1830, William Casada to Hiram Dunkin, $200, 49 acres on south side French Broad River between mouth of Newfound and Sandy Marsh Creeks on Denvis? branch. Wit. J.M. Alexander. (FHL film 410,553)
16-514: 3 Dec. 1818, William Dugan to Andrew Maxwell, both Buncombe Co. NC, $400, 150 acres on Buckhorn branch of Clear Creek. Wit. Isaac Wilkerson, S. Weard?. Proved by wit. July 1832. (FHL film 410,553)
20-179: 8 Feb. 1830, Hiram Duncan to Matthew Black, $150, 57-1/2 acres west side French Broad Run River between mouth of Newfound Creek and sandy marsh on Deavers (Denver's) Branch, Davidsons old line. Wit. I.M. Alexander, Levi Mills. (FHL film 410,554)
20-238: 18 Nov. 1833, Charles Duncan, Jane Duncan and James T. Duncan to John Case, by authority of power of attorney by Charles Duncan and Jannett Duncan his wife of Jefferson Co. KY, 24 Sept. (no year), appoint John Case attorney of said Charles and Jannett Duncan to take into possession and receive any land owned by Lewis Musick in his lifetime and to which the said Jennett (sic) is heir at law and especially land in Buncombe Co. on Reedy Fork, #462 of 100 acres, and another tract #458, and #464 of 220 acres on dividing ridge between Broad & Green Rivers. Wit. Asa Edney. (FHL film 410,554)
20-459: 14 Dec. 1803, NC Grant #1163 to John Bennett, 200 acres on Clear Creek joining his own land where he now lives and Wm. Bennets land, adj. William Mills line, entered 15 Dec. 1801. Reg. 20 June 1837. (FHL film 410,554)
20-459: 13 Aug. 1802, NC Grant #978 to John Bennett, 50 shillings per 100 acres, 50 acres on Clear Creek joining John Bennets land, entered 22 Sept. 1798. Reg. 20 June 1837. (FHL film 410,554)
Buncombe Co. Inventories, Book 5 (1st book), 1822-1824 (FHL film 412,821)
(Next book is 1845-1869, did not check)
Buncombe Co. NC Cross-index to wills 1831-1964 (FHL film 412,552)
No Duncan through 1900
Buncombe Co. NC Court Minutes, Court of Pleas and Quarter Sessions (FHL film 18,344)
Pg. 146, April, 1801: Deed from Stephen Bennett to Joseph Ray for 100 acres proved by Zephaniah Horton, wit. Deed from Zephaniah Horton to Richard Bennett for 100 acres proved in open court.
Pg. 187, April, 1802: Bill of sale from John Cody to Elizabeth Cody for farm animals proved by Michael Roberds, subscribing witness.
Looked to page 194, July, 1802; then quit. No index.
Buncombe Co. NC Superior Court, Special proceedings of Court of Pleas & Quarter Sessions, cross-index Vol. A, 1798-1812, and B, 1854-1868 (FHL film 410,980)
(Books themselves for this time period not found. County Court minutes not indexed)
Scanned through 1806, no Duncan spotted.
Original Supreme Court Papers, Case #2589, 1837 (from citation in "NC Reports" Vol. 19?, 1837?) (NC Archives, Raleigh, NC; MAD's extract; per dictionary, "demise" in law means the conveyance of an estate, chiefly by lease)
MAD: These are a series of volumes of extracts of Supreme Court decisions which can later be cited in other court pleadings. Each volume is indexed by the names of the plaintiffs and defendants. Most states have a set of similar volumes for that state, usually found in law libraries. These references were found for me by Mrs. Grace Turner of Wilson, NC. The NC Archives has a master index on microfilm to all the cases for which it has the original documents filed with the court. It does not always have the originals.
JOHN DEN, on demise of C. DUNCAN & Wife vs. JOHN HILL, filed 8 June 1837, recorded June 1837, Buncombe Co.
Transcript of Superior Court file: At a Superior Court held at Buncombe Co. courthouse in Asheville on the 3rd Monday after the 4th Monday in March 1834, an Ejectment was filed at the April term, 1834, John Den complains of Richard Fen? (Few?), that Charles Duncan and Jane his wife had on 1 March 1834 in Buncombe Co. demised & to farm let to John Den 100 acres of land in Buncombe Co. on the reedy fork (gives description), for ten years; that John Den possessed those lands until 2 March 1834, when Richard Fen (Few?) with force and arms entered and possessed the lands and drove John Den out and damaged him for 100 lbs.
Mr. John Hill; Sir; I am informed you are in possession of or claim title to the lands described in this Declaration of Ejectment and I being sued as casual Ejector and having no claim thereto, do advise you to appear at the next Superior Court ... and cause yourself to be made defendant in my stead; March 10, 1834, /s/ Richard Few (Fen?)
John Hill pled not guilty, case continued from time to time until 1837, Ejectment plea not guilty; jury found defendant guilty of the trespass and Ejectment as mentioned in the plaintiff's declaration; defendant appealed to the Supreme Court.
DEN on demise of DUNCAN & Wife v. JNO. HILL.
This was an action of ejectment to recover a tract of land in Buncombe County, the wife showed title by producing a grant to her father Lewis Musick dated in 1789 -- (as?) evidence of his death & that she was his only child. Defendant then offered a title bond dated 1795 from the wife before her marriage, the bond required title to be made in the year 1799.
Defendant also proved that soon after the execution of the bond, the wife left this state & removed to the West, that in 1803 he or those under whom he claims took possession of the land & retained the possession by a various? susceptain? of assauts? up to the year 1824 with the exception of two years, 1808 and 1809, during which time ... without claiming to be the tenant of any person.
Plaintiff then offered the deposition of Sarah Williams, which was objected to by defendant because the commission under which it was taken was made returnable not to the next term after it issued but to the term after, so as to have one term between. This objection was overruled and the deposition read, by which plaintiff proved that the wife did not arrive at full age until about the year 1802, that she was married about the time she came of age and remained under concetin? ever since.
The court charged the jury they (there?) would not be authentic from the evidence to presume a deed as contended by the defendant; that a deed might in some cases be presumed after a continued possession for many years; but this presumption might be rebutted by other evidence, such as covertion?, infancy at the time the title bond was made & after; removal to the West; and that if they believed the evidence in this case they were not at liberty to presume a deed.
Request for a new trial because the judge told the jury they should not presume a deed.
Upon the trial the defendant objected to the reception in evidence of the Deposition of Sarah Williams because the commission was not returned to the term immediately succeeding that ... but to the term thereafter. (more on this issue; the deposition was allowed).
The other exception taken by the defendant to the charge of the Judge that upon the evidence set forth the jury were not at liberty to presume a deed from the (sefians?) of the Plaintiff is also unfounded. ...
Judgment of the Superior Court is to be affirmed with costs.
"Reports of cases at law argued and determined in the Supreme Court of North Carolina, December 1836 to December 1837, both inclusive" by Thomas P. Devereux and William H. Battle, Vol.II (spine title "No. Carolina Reports [Vol.] 19 - Devereux & Battle's Law, Vol.II); Vol.19, pgs.291 to 294 (California State Law Library, Sacramento, 1/2004)
DEN ex dem. (on demise) CHARLES DUNCAN et Ux., v. JOHN HILL; Supreme Court of North Carolina; 19 N.C. 291; 2 Dev. & Bat. Law 291; June, 1837, Decided.
Ejectment, tried on the last Circuit at Buncombe, before Pearson, J.
The lessors of the plaintiff having made out a title in the feme lessor, the defendant produced a bond from her, dated in the year 1795, before her marriage, with a condition to make him a title before the year 1799. He then proved that he went into possession of the premises in dispute in the year 1803, and continued that possession until the commencement of this action, in the year 1834.
To repel the presumption which the defendant sought to raise from these facts, the lessors of the plaintiff offered in evidence, the deposition of one Sarah Williams, in which it was proved, that the bond was made while the feme was under age: that she was married before she arrived at full age, and had immediately thereafter removed to the western country, where she had since resided; and that her coverture continued up to the time of taking the deposition. This deposition was objected to by the defendant, because it was not made returnable to the next term succeeding its date, but to the term next but one thereafter, leaving an intermediate term during which it was out, and unexecuted. This objection was overruled by the Court, and the deposition read to the jury.
His Honor instructed the jury, that although a deed might, in some cases, be presumed from long possession, this presumption might be repelled by evidence of infancy, coverture, non-residence, or the like; and that if they believed the facts deposed to by the witness sworn under the commission, they were not at liberty to presume that a deed had been executed to the defendant according to the condition of the bond to him. A verdict was returned for the lessors of the plaintiff, and the defendant appealed.
(opinion) GASTON, Judge: Upon the trial the defendant objected to the reception in evidence of the deposition of Sarah Williams, because the commission was not returnable to the term immediately succeeding that at which it bore teste, but to the next term thereafter. The Court is of opinion that this objection was properly overruled. The provisions in our act of 1777, ch. 115, sec. 14, do not apply to commissions. These are not embraced within the term "process," and were not intended or referred to in that section. In its most general acceptation, process comprehends all the proceedings between the parties to the suit, after the original, and before judgment, but usually it imports those writs which issue to bring persons before the Court, or to do execution. When used in the latter sense, it is divided into original, mesne, and final. The provisions in this section with respect to the term to which process is to be made returnable, are expressly confined to "original and mesne process;" they are made in the spirit of the common law, by which a cause is out of court, if in the case of mesne process a term be omitted between the teste and return; (Parsons v. Lloyd, 3 Wils. 341) and are extended by the legislature to original process, because with us it is generally a capias, and is therefore within the mischiefs requiring a like remedy. That commissions to take testimony were not intended in this section, is further manifested by the enactment, that such process shall be executed at least ten days before the beginning of the term to which it is returnable, and if made returnable or executed at any other time, or in any other manner, than by the act directed, it shall be adjudged void, upon the plea of the defendant. It cannot be questioned but that a commission may be executed at any moment before it is returnable, and its validity or invalidity cannot be brought before the Court by plea; and it is liable to objections either on the part of the plaintiff or of the defendant. The issuing of commissions is regulated by sections 39, 40 and 41 of the same act, in which they are not spoken of as process, but as mere delegations of authority to examine witnesses; and neither these nor any subsequent acts on the subject provide when they shall be made returnable. There is no necessity, which requires that they shall be made returnable to the next term. They are issued at the instance and for the benefit of one of the parties, and he will usually make them returnable to the earliest day consistent with convenience. If through laches, or from a wish to delay the trial, he should not do so, the non-execution of the commission will be adjudged an insufficient reason for asking a continuance. A positive requisition, that they should be returned to the first term, would, in the case of distant witnesses, render it often difficult, and sometimes impossible, to procure their testimony. We believe that the defendant's counsel is correct in his construction of the act of 1797 (Rev. c. 474, s. 5) which declares it unnecessary, for a clerk to affix a seal to process within his county; and that the act applies to commissions as well as process properly so called; but we think that this construction is justified rather by the equity of the act, than by its words. If a seal be not necessary to a writ where personal liberty may be endangered, a fortiori, it shall not be demanded in one of a less important character. But however justified we may be in holding that commissions were in the purview of the legislature when they used the term "process" in this act, we cannot force them within the act of 1777, because of the word process, where it is obvious that commissions were not contemplated.
The other exception taken by the defendant to the charge of the judge, that upon the evidence set forth, the jury were not at liberty to presume a deed from the lessors of the plaintiff, is also unfounded. Referring to the opinion in Matthews v. Smith, ante 287, upon the subject of presumptions, we will remark only, that in the present case, the presumption relied on rests wholly on the possession taken in 1803, when Mrs. Duncan was actually under the disability of coverture, which disability continued up to the institution of this suit.
PER CURIAM. Judgment affirmed.
"Reports of cases at law argued and determined in the Supreme Court of North Carolina, from December term, 1853, to August term, 1853, both inclusive" by Perrin Busbee (spine title "No. Carolina Reports [Vol.] 44 - Busbee's Law); Vol.44, pgs.467 to 469 (California State Law Library, Sacramento, 1/2004)
DEN ex dem. (on demise) GEO. BLACK, et al. vs. ELIZABETH LINDSAY; Supreme Court of North Carolina, Morganton; 44 N.C. 467; August, 1853, Decided.
This was an action of Ejectment, tried before his Honor Judge DICK, at the Special Term of Buncombe Superior Court of Law, in June 1853. Upon the trial, it appeared in evidence that the land described in the plaintiff's declaration was in the year 1800 in the possession of one Thomas, who continued his possession until the year 1805, when one John Duncan entered, and continued in possession thereof, claiming the premises as his own until his death in 1809, and leaving a will in which he devised the same in fee to Jane Duncan, his wife, who continued to occupy and live upon the land, claiming it as her own, from the death of her said husband until her death in 1826 or 1827. The lessors of the plaintiff, Mrs. Black and Mrs. Addington, and the defendant, are the children and heirs at law of the said John and Jane Duncan; and soon after the death of the former the defendant, by and with the consent of her mother entered on the land, and was residing thereon at the time of bringing this ejectment. There was no evidence that the defendant recognized any person as landlord of the said premises, after the death of her mother.
Upon this state of facts the defendant's counsel insisted that the plaintiff's lessors could not recover; but his Honor instructed the jury, that if the defendant entered into the possession of the land during the life of her mother by her permission, and as her tenant, and continued thereon as such until her death in 1826 or 1827, and without abandoning the same still continued thereon until this ejectment was brought, her possession, until an actual or presumed ouster of her co-tenants, would enure to the benefit of all of the heirs at law her mother, and there being more than thirty years continued possession of the land, the law presumed a grant to the heirs at law of Jane Duncan. And his Honor further charged the jury, that in the absence of any claim against the defendant for rent or demand by the lessors to be let into possession with her, or any actual ouster of them by the defendant, who, from the first supposed state of facts would be presumed to hold the possession for all the tenants in common, the law would presume an ouster of the lessors of plaintiff at the expiration of twenty years from the death of Mrs. Duncan, her mother, when her possession would become adverse to them -- since which time there had not sufficient time elapsed to bar the recovery of the plaintiff's lessors.
Under which instructions the jury found for the lessors of the plaintiff, and judgment having been rendered on the verdict, the defendant appealed to the Supreme Court.
(opinion) NASH, C. J. The possession of one tenant in common is, in law, the possession of all his co-tenants, because they claim by one common right. When, however, that possession has been continued for a great number of years, without any claim from another who has a right, and is under no disability to assert it, it will be considered evidence of title to such sole possession; and where it has so continued for twenty years, the law raises a presumption that it is rightful, and will protect it. This it will do, as well from public policy, to prevent stale demands, as to protect possessors from the loss of evidence from lapse of time. Possession, then, for twenty years under the above circumstances, will amount to a disseisin or ouster of the co-tenant, and furnishes a legal presumption of the fact necessary to uphold an exclusive possession: -- as that the possession was adverse in its commencement, and tolls the entry of the tenant not in possession. It was said at the bar, that the law cannot give a right and take it away at the same moment. This objection is more specious than sound. A tenant in common out of possession, can, at any time, take possession with him in sole possession; or, if the latter will not permit him so to do, and keeps him out, it will be a disseisin, and give a right of action. But if he suffer the sole possession to run on without entry or demand for twenty years, the law says to him -- by your negligence you have lost your right of entry, without which you cannot support an action of ejectment. At any time, then, during the twenty years, the tenant out of possession had a right, and might have enforced it by an action. The title of the lessors of the plaintiff, and of the defendant united in Mrs. Jane Duncan, their mother, who died in 1826 or 1827. Before that time, the defendant went into the sole possession of the premises in question under her who was seised in fee, and continued such possession up to the time this action was brought, without any demand of payment or rent by the lessors of the plaintiff, or to be let into possession. The action was brought in October, 1849. The defendant's sole possession, from the death of her mother, had then continued twenty-three years; the lessors of the plaintiff had lost their right of entry, and could not maintain their action; and the jury ought to have been so instructed. The Act of 1715 has no application to the case.
PER CURIAM. Judgment reversed, and a venire de novo awarded.
Minutes of the Newfound Baptist Church, Buncombe Co. NC; and County Court Minutes (from Stuart Duncan 5/1990, with permission to share with others)
SD: The minutes of the Newfound Baptist Church at Leicester, Buncombe Co. NC, are in the possession of the church, but not available to the public because of their fragility. The only existing microfilm is at the Baptist Historical Collection at Wake Forest University Library in Winston-Salem. (From personal trip.)
19 Sep 1805; Newfound Baptist Ch. Mins, V. 1: September 1805 monthly meeting: ... business of the day first brother John Duncin and Martha Gudger in to our fellowship. By letter ....
16 Mar 1806; Newfound Baptist Ch. Mins, V. 1: March 1806 monthly meeting: ... excludes brother Thomas Worth from our fellowship and brother John Dunkin aplise and obtains letter of dis mission ....
Post 1807; Newfound Baptist Ch. Mins, V. 1: Pages 17 and 18 of the minutes (which were copied in 1853 from the originals) contained a list of 123 members of the church (although not so identified, or dated) including Jane Dunken, Elizabeth Addington, Delila Addington as well as Huckaby, Plemons, Ponder, Pippinger, Patterson, Black, Gudger, Triplett, Worth, Wm Neighbors. The list excluded early members and included members who joined as late as 1820, so its provinance and significance are unknown.
20 Jun 1807; Newfound Baptist Ch. Mins, V. 1: June 1807 monthly meeting: Received ---- by leter to wit John Dunken, Icabod Mebryce(?) and John Shipman and Feeby his wife. ...
July 1808; Buncombe Co. NC Court of Common Pleas and Quarter Sessions, July 1808 Term (pg.411): The above commissioners [SD: Daniel Ponder, Thomas Plemmonds, Sr., and William Addington] laid out the following year's provisions [SD: for the widow] from the estate of James Reddick: ... signed 12 March 1808 [SD: by all three].
(pg.412): The above inventory of James Reddick's property was valued by Daniel Ponder, Esq, Thomas Plemmonds, John Duncan and William Addington February 1, 1808. [SD: James Reddick obtained grant #1221 of 100 acres on South Turkey Creek on 16 Dec 1803.]
19 Jan 1809; Newfound Baptist Ch. Mins, V. 1: January 1809 monthly meeting: ... the church met ... to take up the matter of the brethren ware laid under sentence of the church of the ---- ---- we find them ripe for excommunication and proceeded to exclude them the names to wit John Dunken, Robert Patterson and his wife Elizabeth, John Patterson and his wife Margartet, Thomas Plemons and his wife Elizabeth John Plemons Ethyl Plemons. [SD: The charges apparently were that the above supported Polly Plemons, who married Ahab Mullins despite some suspicion that Ahab still had a wife living. The issue was a subject in several monthly meetings. In April 1809 the church decided to drop the whole thing "and leave the woman to stand as she is at present." She was later readmitted to the church as Polly Mullins. Apparently her supporters were also reinstated, as Thomas Plemons became very active in church matters.]
Oct 1809; Buncombe Co. NC Court of Common Pleas and Quarter Sessions, October 1809 term (pg.460): "The last will and testament of John Duncan was proven in open court by Thomas Forster and John Biffle, the subscribing witnesses thereto: And Jane Duncan and Thomas Plemmons, the executors mentioned in said will came in and were qualified according to law."
17 Dec 1814; Newfound Baptist Ch. Mins, V. 1: December 1814 monthly meeting: Letter of dismissions granted to Jacob ----, Thomas Abel and wife and Jane Dunkin.
17 Oct 1818; Newfound Baptist Ch. Mins, V. 1: October 1818 monthly meeting: ... Rec'd matter of daling a charge William Neighbor laid in righting against sister Jane Duncan this church agrees to back it to a committee of five brothers, Bacwan(?) Burnett, Turner Robberts, Thomas Plommonds, Wiliam Triplett and John Longmire.
19 Nov 1818; Newfound Baptist Ch. Mins, V. 1: November 1818 monthly meeting: ... The committee permitted to settle the charge that brother Tine(?) Neighbors brought against sister Jane Duncan the committee justifies her in trading the note but thinks she ought to have got brother Peter Plemons to measure the corn if she recollected that he was still to see to the measuring of the corn.
Newberry Co. SC Deeds
H-120: 19 Aug. 1805, John (I) Duncan of Bunkham Co. NC and James Duncan of Newberry Dist. and state aforesaid (sic), to James Law of Newberry Dist., $412, 102 acres on south side of Duncans Creek, part of two grants which were chiefly originally granted to John Duncan 7 Oct. 1755, (adjoining) John Whitten and the heirs of Rignal Odell, the said Duncans Creek. Wit. William Law, March (X) Duncan. Certification by Jas. Elmore, "Lawrence" Dist., that Anna Duncan, wife of James, released her dower. (FHL film 24,235)
O-326: 26 Aug. 1818, Jane (X her mark) Duncan of Buncomb Co. NC to John Watson of Newberry Dist., $270, 384 acres in Newberry Dist. SC between Duncan's Creek, Enoree River, bounded by Widow Duckett, John Odell, Joseph Duncan & Te... Ray?. Wit. Jacob Duckett. (FHL film 24,237)
Jefferson Co. KY Will (FHL film 588,537)
3-231: 13 June 1840, will of Charles Duncan of Jefferson Co. KY at our residence in Co. and State aforesaid, in common health; to my granddaughter Margarett Killy (later Margarett Kelly) (slave), and to my grandson William Kally (later William Kelly) (slave), slaves to be hired out until said Margarett and William should marry or become 21 years of age and the hireage paid over to my said grandchildren severally as I have given them the girls; also to above granchildren Margarett & William one horse (etc.) each to be valued at $75, but in the event of either of my said grandchildren dying before marriage or become 21, then the survivor inherit the others portion, but if both die, then that part divided among my five sons agreeable to the statute of distribution, to wit, Coleman S. Duncan, James T. Duncan, George J. Duncan, Henry S. Duncan and Chas. R. Duncan; remainder sold and equally divided among my said five sons; my son James T. Duncan having been by a lawful power of attorney legally authorized to sell and convey all my Carolina lands as well as look out and ascertain the nature and strength of my claims and in pursuit of which has expended both time and money for which he is entitled to compensation, Now here the sd. James T. Duncan shall have been remunerated for his trouble & expenses the remainder of the proceeds of the said sales to be equally divided among my said five sons and two grandchildren; reserve one acre of land to include the grave yard a part of the plantation whereon I now live on Frew? Creek, Jefferson Co. KY, which acre of ground shall be free for my friends or neighbors to bury their dead. Appoint two sons James T. Duncan and Henry S. Duncan and friend Walkir Prewit executors. Wit. Henry Keene, Joseph Killar, Benjamin Gaar?. Prob. 7 Dec. 1840.
"The Families of Lewis Marion Duncan, 1845 to 1931" booklet by Genevieve E. Iwerks, February 1995 (MAD: see Brown Co. IN 1850, Monroe Co. IN 1860)
MAD: this booklet contains much on the family of William W. Duncan, who died in 1893 in Monroe Co. IN, and his brothers March M. Duncan (1850 Polk Co. TN census) and James Elbert Duncan, sons of John J. Duncan who may be a son of John and Jane Duncan of Buncombe Co. NC.
"John Duncan of Aberdeen and Duncan Creek, South Carolina" by Stuart C. Duncan, copyright 1999, includes the family of John Duncan Jr. and wife Jane, who moved from Newberry Co. SC to Buncombe Co. NC.
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