Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug
Last revised May 21, 2012
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Duncan research files of |
1860 Otoe Co. NE Census
Pg.80, #674, Sylvanus DUNCAN (m) 30 IN farmer
America 31 IN
Lizebelle 4 IN
Victoria 2 NE
John P. BROWN 27 IN farmer
Wm. DAMME? 20 PRUSSIA GRMN laborer
(MAD: Victoria in 1870 Dane Co. WI census)
1870 Otoe Co. NE Census
4 Mile Precinct, Nebraska City P.O.
Pg.368, #46-47, DUNKIN, T. (m) 40 IN farmer $8000-$500
M.A. (f) 32 TN keeping house
I.B. (f) 14 IN at school
I.W. (m) 5 NE
1st Ward Nebraska City
Pg.390, #86-92, DUNKIN, E. (m) 55 ENG ice packer $3000-$0, parents of foreign birth
L. (f) 54 OH keeping house
BLICK, L.C. (m) 15 OH at school
BRINKIN, A. (f) 8 IA
Otoe Precinct
Pg.479, #177-179, DUNKIN, Green (m) 25 IL farmer $1500-$450
Louisa 20 IL keeping house
Nellie (f) 2 NE
H. (m) 1 NE
(MAD: mar. 1866 Champaign Co. IL; 1880 Atchison Co. MO census)
"Reports of cases in the Supreme Court of Nebraska" by James M. Woolworth, Counsellor at Law, Vol.I; ("Nebraska Reports") Vol.1, pgs.134 to 145 (California State Law Library, Sacramento, 1/2004)
FILLEY and HOPKINS v. DUNCAN; Supreme Court of Nebraska; 1 Neb. 134; December, 1871, Decided.
On the 20th of July 1859, Francis Bell was in possession of the south-west quarter of section thirty in township eight north, range fourteen east of the sixth principal meridian, situated in Otoe county, holding the legal title to an undivided half thereof, and, in some way not explained, being entitled to have the legal title to the other undivided half, from certain heirs in whom the same vested. On that day he entered into a contract with Mrs. America Duncan, for the sale to her of the entire tract; and gave her a bond to convey the same to her, as soon as he should be able to make the deed. By the terms of the agreement, he was to take towards the purchase money, certain personal property, and was to be paid the balance of the agreed price, which was eighteen hundred dollars, whenever he should execute the conveyance. Mrs. Duncan entered at once under this contract, and that season gathered the crop, which, at the time of the sale, Bell was raising. The succeeding year she rented the premises to some person who lived upon and cultivated them. In October Mrs. Duncan paid all of the purchase money but $512.
On the 28th of May, 1860, Bell, having possessed himself of the legal title to the whole tract, made his deed therefor to Mrs. Duncan, and received the balance of the purchase money.
On the 20th of October, 1860, Mrs. Duncan died, leaving a husband and three children, who are the plaintiffs in this suit.
From his wife's death until 1863, Mr. Duncan continued in the occupancy of the premises, either personally or by tenants. At that time, he left the territory, entrusting the premises to the care of a friend. Shortly after he left, the defendants, Hopkins and Filley, entered into, and thence to the bringing of this suit occupied the premises.
At the December term, 1859, in the District Court for Otoe county, Hills recovered a judgment against Bell, which soon afterwards, he assigned to Filley. Execution issued thereon on the 21st of August, 1861, which was levied upon the south half of the premises above described. Filley was the purchaser at the sale; and after confirmation, he had a sheriff's deed of the premises, which bears date on the 20th of March, 1862.
At the same term of the court, Hopkins also recovered a judgment against Bell, and sued out execution thereon, on the 2d of October, 1860, which was levied on the north half of the premises. At the sale, he was the purchaser, and after confirmation, he had a sheriff's deed, which bears date April 4th, 1862.
It appears that both Hills and Hopkins had, at the time they recovered their judgments, actual notice of Mrs. Duncan's purchase, and that Filley, who did not live in Nebraska, had an agent, who made the purchase for him of the judgment from Hills, and who also knew of Mrs. Duncan's interest. It does not appear that she knew of the judgments, until after she had paid the whole of the purchase money, and received the conveyance.
The action was brought in equity, to have the sheriff's deeds declared void, and the possession of the premises decreed to the plaintiffs. The cause was heard upon pleadings and proofs in the District Court, by Mr. Chief Justice MASON, who rendered a decree according to the prayer of the petition. The defendants appealed to this court.
(opinion) CROUNSE, J. At the time of making the contract of sale of the lands in question with Mrs. Duncan, Bell, it is conceded, was the owner of the undivided one half thereof. He was in possession of the premises, and agreed to convey the entire fee when he should receive deeds from certain heirs. What his interest was to this remaining one half does not appear. The circumstance that he was in possession -- cultivating the premises being of itself prima facie evidence of title -- and the further fact that he did receive quit-claim deeds from the heirs, make it quite certain that he had some right to this remaining one half. The conveyances received by him were simple releases, and of themselves do not indicate the interest conveyed by them. If there was an entire want of interest in Bell to this part, it devolved upon those who claim an advantage by reason of it, to show the fact affirmatively. It is safe to presume, that Bell had such an interest as he could sell or assign, and which a court of equity would recognize and protect in the hands of his vendee or assignee. "It is extremely clear," says Story, 2 Eq. Jur. 1050, "that an equitable interest, under a contract of purchase of real estate, may be the subject of sale. A purchaser claiming under such original contract, in case he afterwards sells his purchase to sub-purchasers, becomes in equity, a trustee for the persons to whom he contracts to sell."
Where there is a contract to convey an estate, which the vendor has not at the time, if he afterwards become the owner, a court of equity will compel a specific performance. So, when Bell completed his title by securing the deeds from the heirs, it was in fact for the benefit of Mrs. Duncan, and the transaction is so related to the contract with her, that in my opinion, her rights to this after-acquired title are the same as to that about which there is no dispute. However this may be, the lands in question were not levied upon, under these judgments until Bell had conveyed by deed to Mrs. Duncan; and as to after acquired lands, no lien attaches so as to effect bona fide purchasers, until levied upon. For the purposes of this case, therefore, it may be assumed that, at the time of making his contract with Mrs. Duncan, Bell was the absolute owner of the land bargained to her.
The position of Mrs. Duncan in July, 1859 when she had made her contract with Bell, was this: She was the purchaser from the owner in fee of the land in question; she was in possession of, and cultivating the same, and on making payment, according to the terms of her contract, was to receive a good and sufficient deed. The transaction was a lawful and a usual one, and entered into in good faith.
The judgments under which Hopkins and Filley, the appellants, claim, were entered in December following, and before the execution of the deed from Bell to Mrs. Duncan, which was on the 28th day of May, 1860. (MAD: part omitted here)
The lien of these judgments went no farther. They attached to the interest of the vendor, Bell, as they found it. Had the vendee abandoned the contract, the entire fee in the vendor would have become subject to the lien of the judgments; and the purchaser at sheriff's sale under them, would have received a clear title to the lands so sold. With the contract subsisting, the lien extended only to the unpaid balance of the purchase money. To the extent of the five hundred and twelve dollars remaining unpaid upon Mrs. Duncan's contract, these judgments were a lien, which could have been made available to these judgment creditors, in a proper proceeding.
Subsequent to the entry of these judgments and before sale of the premises under them, Mrs. Duncan paid this balance of the purchase money to Bell and took a deed from him. No actual notice to her of the entry of these judgments nor claim upon her for the balance of the purchase money is shown. But it is claimed that the record of these judgments was constructive notice to her, and that any payment by her to Bell after this entry, was in her own wrong, and not to the prejudice of these judgment creditors. (MAD: part omitted here)
These latter cases, besides challenging the consideration due to so high authority, are based on the better reasoning. The conclusions reached are deduced from doctrines so fully established by authority, as to entitle them to be regarded as among the elementary principles of the law; and when applied here afford an easy solution of this case. At the time of the entry of the judgments under which Hopkins and Filley claim, Mrs. Duncan had made a contract with Bell for the premises in question, and had parted with a part of the purchase price. At the time of her purchase there was no suggestion of right or interest to the same in these parties, either actual or constructive. She took the hazard of the vendor's title, and relied upon his responsibility to make her a deed in due time. She also ran the risk of prior judgments against the vendor, and at her peril was bound to search the records for incumbrances prior to the date of her contract. Her possession was notice to all the world of her interest. She was the equitable owner of so much at least, as had been paid for and was entitled to a conveyance of the whole of the lands, when the balance of the money should be paid. She had obligated herself to pay Bell the balance, and to assume to pay any one else, might embarrass her or lead to litigation with Bell, or those to whom he might assign his contract with her. These judgment creditors, came into this arrangement rather as intruders. They are given a right to the unpaid purchase money, which, in a proper proceeding, may be secured by them. To this extent, they are to be benefited and it is but right that as to this, they should become the actors.
They should at least have given Mrs. Duncan, or her representatives, actual notice of the entry of their judgments and their claim under them. Whether a simple notice to the vendee of the existence of judgment liens, acquired since her contract, would be sufficient to make any further payments to the vendor, the judgment debtor, at her own peril, it is unnecessary to decide. In my opinion, however, it is not. In a proceeding in the nature of a creditor's bill, payment could be enjoined until the rights of the parties are determined. The party who seeks to interfere with and override a lawful transaction, and intercept payments due under legal obligations, and have the same applied in satisfaction of his claims, should, it seems to me, provide himself with authority from some competent power.
Here, Mrs. Duncan, pursuant to her agreement, has paid all of the purchase money, and taken a deed; and her heirs now ask that the title so taken be cleared from the cloud raised by the sale of these premises, under the judgments mentioned. To this relief they are entitled. When the sheriff's sale was made, no title remained in Bell, and of course no title passed. Bell had already conveyed to Mrs. Duncan. The rule that the purchaser at sheriff's sale becomes possessed of the title and interest held by the judgment debtor at the time of the entry of judgment, is subject in equity to this qualification -- that he takes such title, subject to the equities that then existed against him, or which have since arisen, through want of knowledge of such judgments.
Judgment of the court below affirmed.
La Porte Co. IN Deed (FHL film 1,685,494)
9-278/279: 14 April 1860, Miles W. Brown and wife Sarah Ann Brown, Sylvanus Duncan and wife America Duncan, and John P. Brown of Otoe Co. Territory of Nebraska, James J. Brown and wife Sarah Ann Brown of Dane Co. WI, Joel Loomis and wife Virginia Loomis of Berian Co. MI, convey to John Brown of Berian Co. MI for $1, the following real estate in La Porte Co. IN, Lot 150 in the original survey of the town (now City) of La Porte. Lot 55 in Wilson's first addition to the town (now city) of La Porte, and the undivided 1/2 of E 1/2 of SE 1/4 of Sec.31 Twp.38N Range 4W. The said Miles W. Brown and wife Sarah Ann Brown, Sylvanus Duncan and wife America Duncan, John P. Brown, James J. Brown and wife Sarah Ann Brown, and Joel Loomas and wife Virginia Loomas, set our hands. /s/ Miles W. Brown, Sarah A. Brown, Sylvanus Dunkin, America Dunkin, John P. Brown, James J. Brown, Sarah A. Brown, Joel Loomis, Virginia Loomis. Wit. W.T. Boydston, Jas. L. Parker, Joseph S. Bakon. Miles W. Brown and wife Sarah Ann, Sylvanus Duncan and wife America Duncan, and John P. Brown ack. 18 April 1860 before M.L. Boydston, Notary Public, Otoe Co. NE. Certification by Allen Blacker, Clerk of Otoe Co. District Court, for Wm. L. Boydston. James J. Brown and wife Sarah Ann Brown ack. 27 April 1860 before Jas. L. Baker, Notary Public of Dane Co. WI. Joel Loomis and wife Virginia Loomis ack. 7 May 1860 before Joseph S. Bacon, Notary Public, Berrian Co. MI. Secretary of State of WI, Edward Ilsley, certified for J.L. Baker as Notary Public of Dane Co., 28 April 1860. Filed May 23, 1860.
1895 "Roster of soldiers, sailors, and marines of the War of 1812, the Mexican War, and the War of the Rebellion, residing in Nebraska, June 1, 1895" pub. York, Neb.: Nebraska Newspaper Union, 1895 (HeritageQuest image 3/2007, Local History Reel/Fiche Number 9146; FHL book 978.2 M2n and fiche 1,010,064 and film 844,966 item 4)
Pg.170, soldiers from Illinois: Duncan, G.B., Private, Co.E, 106 Infantry, resides Hendley [MAD: Furnas Co. NE] (MAD: 1870 Otoe Co. NE census; 1880 Atchison Co. MO census)
Pension Index Card File, alphabetical; of the Veterans Administrative Contact and Administration Services, Admin. Operations Services, 1861-1934; Duff to A-J Duncan (negative FHL film 540,888, some cards very faint); Joseph Duncan to Dunn (positive FHL film 540,889, some cards very dark) (Placerville FHC on loan 10/11/1997 to 12/4/1997)
Cataloged under Civil War, 1861-1865, pensions, indexes; does not say if Confederate or Federal, but probably Federal. Negative film, some cards much too faint or dark to read, some cards blurred or faded, particularly the service unit and the dates of application. Most of the very faint or dark cards were in a slightly different format, with space for years enlisted and discharged which were sometimes filled in. Many of these were for service in later years, although one or two were for service ca 1866.
Name of soldier, alias, name of dependent widow or minor, service (military unit or units), date of filing, class (invalid or widow or minor or other), Application #, Certificate #, state from which filed (sometimes blank), attorney (sometimes blank, MAD: did not usually copy), remarks. Sometimes the "Invalid" or "Widow" class had an "s" added to it before the application #; occasionally the area for the service information included a circled "S". The minor's name was frequently that of the guardian rather than the minor.
The military unit was frequently the Company Letter, the Regiment Number, sometimes US Vet Vol Inf. (US Veteran Volunteer Infantry), L.A. (Light Artillery), H.A. (Heavy Artillery), US C Inf (US Colored? Infantry), Cav. (Cavalry), Mil. Guards, V.R.C. (?Volunteer Reserve Corps?), etc. Sometimes there were several service units given.
Cards appear to be arranged by the last name, first name, middle initial if any, and state (including "US") of service.
Duncan, Green B., widow Duncan, Tabitha L.; E 106 Ill. Inf.; 1891 Dec. 18, Invalid Appl. #1079178, Cert. #792417, Nebr.; 1899 May 31, Widow Appl. #699287, Cert. #525590, Nebr. (MAD: Logan Co. IL; 1870 Otoe Co. NE)
"Bible and Family Records, Vol.43, by CA DAR, 1979-80 (SUTRO book E202.5 C15 V5 v.43, CA State Library, Sutro Branch)
Pg.116-7: DUNCAN FAMILY BIBLE. MAD: This is the Bible of Green B. Duncan, b. 5/19/1842 Gibson Co. IN, married Tabitha L. Ewing 8/29/1866 Champaign Co. IL, and gives their children, who were born in 1867 in Otoe Co. NE, and in 1875 in Atchison Co. MO. From other information, he was in 1850 Jefferson Co. IL census, son of James Floyd Duncan and Rosilia Lucas from Gibson Co. IN; 1860 Logan Co. IL census.
END
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