Duncans in Cumberland Co. PA Court Records Part 3


Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug

Last revised April 3, 2004


"Reports of cases argued and determined in the Supreme court of Pennsylvania from September 1834 to May 1835" by Frederick Watts; 2nd edition; ("Watts") Vol.3 pgs.471 to 475 (California State Law Library, Sacramento, 1/2004)
      HARPER against BLEAN; Supreme Court of Pennsylvania, Middle District, Harrisburg; 3 Watts 471; May, 1835, Decided.
      Error to the common pleas of Cumberland county.
      The following facts were agreed by the parties to be considered as a special verdict. Andrew Harper, under whom both parties claim title, was in his lifetime, and at the date of his will hereafter mentioned, seised in fee of and in the tract of land and premises mentioned and described in the writ and statement in this suit, together with two other tracts of unimproved woodland in the same township and county, one of which contains forty acres and one hundred and thirty-six perches, and the other contains thirteen acres and eighty perches. The tract for which this suit is brought contains eighty acres, or thereabouts, and is composed of two smaller pieces of land, one of which, containing about five acres and seventy-six perches, the said Andrew acquired by devise under the will of his father, William Harper deceased, upon which a fulling-mill and other improvements were erected; and the residue of the said eighty acres is composed of a tract of seventy-four acres and eighty-four perches, purchased by the said Andrew from Joseph Duncan and wife, by deed dated 13th of May 1825, for the consideration of 1150 dollars. The title of the said Andrew to the two pieces of woodland mentioned above, he acquired by devise under the will of his said father, William Harper. The said Andrew Harper, being so seised, made his last will and testament in writing, duly executed, dated 5th of September 1826, which was proved according to law on the 23d of January 1827, by which he devised the several tracts of land and premises above mentioned to his wife, Elizabeth Harper, as set forth in the said will as follows: -- In the name of God, amen, I, Andrew Harper, of Mifflin township, Cumberland county, and state of Pennsylvania, being sick and weak in body, but of sound mind, memory and understanding (praised be God for it), and considering the certainty of death, and the uncertainty of the time thereof, and to the end that I may be better prepared to leave this world whenever it shall please God to call me hence, do therefore make and declare this my last will and testament in manner following, that is to say, first and principally I commend my soul into the hands of God, who gave it; my body I commit to the earth, from whence it was taken; I give and bequeath unto my very well beloved wife, Elizabeth, the farm and fulling-mill and carding machines upon which I am now living; I also give and bequeath unto her all my personal property; and I give unto her the lot of woodland known by the name of Ross, also another lot known by the name of Christleibs. And I give and bequeath unto her all my cash, notes and book accounts, with whatsoever is not named that I have any right or claim to either in law or equity; and further, I do hereby nominate, constitute and appoint my trusty friend and brother-in-law, John M'Culloch, of West Pennsborough township, the executor of this my will, in witness whereof I have hereunto set my hand and seal, this 5th day of September, Anno Domini 1826. ANDREW HARPER, [SEAL].
      The said Elizabeth Harper, after the death of her said husband, made her will in writing, duly executed, dated 6th of October, which after her death was duly proved, by which she devised the same lands and premises to her mother, Sarah M'Culloch. The said Sarah M'Culloch, after the death of the said Elizabeth Harper, by deed dated the 12th of January 1832, for the consideration therein mentioned, granted the tract of land and premises mentioned in the writ and statement in this suit to the defendant, Robert Blean. The defendant was in possession when the writ in this case was served. The said Andrew Harper left no issue, but left two brothers, viz. the plaintiff William Harper, and John Harper; and two sisters, viz. Margaret Harper, and Mary Wallace the wife of Thomas Wallace, all of the whole blood, and the nearest collateral kindred of the said Andrew. The said John Harper, Margaret Harper, and Thomas Wallace and Mary his wife, by their deed dated 30th of March 1832, granted and released all their estate in the land for which this suit is brought to the plaintiff, William Harper, in fee.
      Upon these facts the court (Read, President) rendered a judgment for the defendant.
      The opinion of the Court was delivered by SERGEANT, J. -- The testator, by a will in his own handwriting, devised to his wife the farm, fulling-mill and carding machines on which he was then living: he next bequeathed to her all his personal property; and then two lots of ground, describing them. Immediately afterwards, by a sweeping clause, he gives to her "all his cash, notes and book accounts, with whatsoever is not named that he has any right or claim to either in law or equity;" and ends by appointing an executor. He had no other real estate than that described in the will. He had no issue, but left his wife surviving. He left also brothers and sisters, in whose right the plaintiff claims in this ejectment. And the question is, whether the reversion in fee of the farm and fulling-mill passed to the widow, who is since deceased, her title being vested in the defendant.
      Under decisions which cannot now be judicially departed from, however often regretted by enlightened judges as defeating the intention of the testator, the first devise to the wife, being by words which denote the locality of the property, and not the quantity of interest, conveyed only a life estate. But that the last devising clause was thrown in for the express purpose of comprehending every thing which he might previously have omitted, and with the design of making his wife universal devisee and legatee of all that he owned or possessed, I think is apparent; and in the construction of wills, the intent of the testator is to be carried into effect if no rule of law be thereby infringed. It is objected, that by the bequest of whatsoever was not named that he had any right or claim to either in law or equity, only things ejusdem generis as those previously mentioned, that is, cash, notes or book-accounts, passed, and that this clause cannot be extended to real estate. But artificial rules for the interpretation of deeds, contracts and other deliberate instruments, are not applicable to the construction of wills. They never have been so considered at any period of the law. On the contrary, many constructions have been given to words in a will in order to effectuate the intention of the testator, which would not have been permitted in a deed; and the same words have received different constructions. Cowp. 299; Co. Litt. 204 a. In ancient times, if a man devised lands to another in perpetuum, or to give and to sell, or in feodo simplici, or to him and his assigns for ever: in those cases, says Lord Coke, a fee simple passed by the intent of the devisor. Co. Litt. 96. Yet these words would not have been sufficient in deeds. In modern times, words not appropriated to real estate, such as property, interest, effects, and even legacy, have been adjudged sufficient. Another answer to this objection is, that it would render the residuary clause in this will nugatory. For the testator had previously given to his wife "all his personal property," which conveyed all his personal estate of every description, whether consisting of choses in action or in possession. It is, therefore, absolutely necessary, if the residuary clause is to have any operation at all, to refer it to the reversionary interest in his real estate previously devised to his wife, which was the only interest he had of any sort, either real or personal, not previously devised or bequeathed, or as he terms it, "not named." His having before given her an estate for life, in his real estate, is no objection to this construction of the clause. It would be going a great way, says Lord Mansfield, Cowp. 308, to lay it down as a general rule, that when a particular estate is given to a person in one part of the will, and the testator afterwards devises to him in more general terms, he shall not reap any benefit from the devise. In that case, Hogan v. Jackson, Cowp. 299, testator gave to his mother his house and lands of G., during her natural life; and after several legacies to others, devised to his mother all the remainder and residue of his effects, both real and personal, which he should die possessed of. It was held that the mother, by the residuary clause, took a fee in the real estate of G. Chester v. Chester, 3 P. Wms. 56, is a case strongly resembling, in this point, the present. A, on the marriage of his son B, settled part of his lands on B in tail, and being seised in fee of the reversion of these lands and of other lands in possession, devised all his lands and hereditaments, not otherwise settled or disposed of, and it was held the reversion passed. In Ridout v. Paine, 3 Atk. 488, testator gave his wife an estate for life in part of his real estate, and afterwards bequeathed her the residue, &c. Lord Hardwicke held the residuary clause carried the inheritance; which was affirmed on error.
      Then if a previous devise for life to the object of the testator's bounty does not prevent the devisee from acquiring, by a residuary bequest, the reversion in fee of the same estate, the next question is, whether a bequest of "whatsoever I have any right or claim to in law or equity," will not pass a reversion in real estate, where such appears to be the intent of the devisor. These words are of a comprehensive description, embracing every thing in respect to which ownership may exist, whether real, personal or mixed. They are quite as appropriate to real as to personal property. They are the common terms employed in conveyances of land. If the words, effects, legacy, have been held sufficient to pass real estate, as in Hogan v. Jackson, Cowp. 299; Brown v. Taylor, 1 Burr 270: surely the words, "whatsoever I have any right or claim to," are much more efficacious. In Grayson v. Atkinson, 1 Wils. 333, a devise of all the rest of my goods and chattels, real and personal, movable and immovable, in houses, gardens, tenements (without making use of the word estate, or any words of limitation), were held to give a fee. In Tilley v. Simpson, decided in 1746, cited 2 Term. R. 656, testator devised lands to several persons, and all the rest and residue of his money, goods, chattels and estate whatsoever to his nephew B. The question was, whether a beneficial interest in a real estate, not before disposed of, would pass to his nephew by the devise. Lord Hardwicke held it would. He said that where the court had restrained the word estate to carry personal estate only, it had been where it appeared it was the intention of the testator it should be so understood, as where it stood coupled with particular descriptions of parts of the personal estate, as a bequest of all my mortgages, household goods and estate, in which the preceding words are not a full description of the personal estate. Therefore, when he has used words comprehending all his personal estate, that word will carry a real estate. The word whatsoever is used here, which is the same as if he had said, of whatever kind it be: and if that had been the case, it would most certainly have carried the real estate. The remarks of Lord Hardwicke apply in a very peculiar manner to the devise now in question: the testator, Harper, having employed language as full and comprehensive as that which he says would most certainly carry real estate; and moreover, the preceding bequest of "all his personal property," is a full description of the personal estate, and therefore the last clause is not to be restrained to personal estate. So in Terril v. Page, 1 Ch. 262, where there was a devise of all the rest and residue of my money, goods and chattels, and other estate, the same determination was made. It is true, that in some of the cases, there have been introductory words which are wanting here; but on investigation it will be found that their influence on devises has not been sufficient to extend the construction when the devising part would not justify it; and it is probable the same construction would now be given without, that has been made with, them. See 2 Preston on Est. 206. Nor is this rule of construction, that the language must be subordinate to the plain intent of the party, confined to wills. In M'Williams v. Martin, 12 Serg. & Rawle 269, an assignment of all debts, dues or demands, whatsoever or wheresoever, real, personal, or mixed, due or owing, or of right belonging to the assignor, by virtue of inheritance, legacies, bonds, notes, book debts or otherwise, or which thereafter might become due, were held to pass real estate.
      Judgment affirmed.

"Pennsylvania state reports, containing reports of cases adjudged by the Supreme Court of Pennsylvania" by George W. Harris, Vol.XI ("Pennsylvania Reports"); Vol.23, pg.440 to 447 (California State Law Library, Sacramento, 1/2004)
      WILSON v. McCULLOUGH; Supreme Court of Pennsylvania; 23 Pa. 440; July, 1854, Decided.
      Error to the Common Pleas of Cumberland county.
      Ejectment by Thomas S. Wilson and others v. D. W. McCullough and others, for 2050 acres of land, called the Cumberland Furnace Estate. This is the same case, reports of which exist in 19 Pa. 77, &c., and in 21 Pa. 436, &c. (MAD: did not copy 21 Pa. 436)
      The plaintiffs below claimed one undivided half of the property in question under a marriage settlement between James Wilson and Thomas Duncan and Thomas Carothers, guardians of Eliza Ege, dated the 21st of July, 1817, and recorded on the 22d July, 1823; and the whole of the property as heirs at law of Eliza Wilson, formerly Eliza Ege. The marriage articles applied to but half of the estate of Eliza Ege, the female then about to be married to James Wilson.
      The defendants claimed under a mortgage given by James Wilson and wife to the Harrisburg Bank for $5484, dated the 12th December, 1821, and recorded 21st December, 1821; the various proceedings had upon said mortgage, and the subsequent sale thereon and conveyance of the property to them. The mortgage was intended to apply to the whole estate of Eliza Wilson, late Eliza Ege. The mortgage was assigned to Jacob Albert, on 18th July, 1833, viz., nearly ten years after the marriage articles were recorded.
      In the decision in 1852 (see report in 19 Pa.), it was held that the sale under the mortgage conferred no title, on account of want of description of the land in the precipe for a scire facias on the mortgage, no such writ having actually issued; and that the marriage articles were binding on those having actual notice of them before they were recorded.
      In the opinion in 21 Pa. 441, it was considered as having been shown that the property mortgaged to the bank was the subject-matter of the scire facias and judgment, and that it was sufficiently described in the writs of levari facias; and that after these writs were issued, the ancestors of the plaintiff procured Jacob Albert, under whom the defendants claimed, to buy the judgment, and it was decided that the plaintiffs were estopped from contesting the proceeding. The decision to that extent affected only the half of the premises in dispute.
      Lowrie, J., in his opinion, 21 Pa. 441, observed that, "To our mind it is clear that the mortgage in question and the proceedings under it, have not at all affected the title to the half of this land that was included in the marriage settlement, and this the plaintiffs below have properly recovered." But it was considered that for the reasons before stated (viz., the proceedings on the mortgage, &c.), the defendants had made good their defence to the half of the land not included in the marriage articles.
      On the trial of the present case, the validity of the marriage settlement having been affirmed by this Court, the remaining material question was, whether the Harrisburg Bank had actual notice of the marriage articles in December, 1821, at the time they received from Wilson and wife the mortgage of her whole estate in the premises, the said mortgage, as before stated, not being recorded till 22d July, 1823.
      In relation to the matter of notice to the bank of the marriage articles, the then cashier of the bank, General Forster, and J. M. Haldeman, a director, were examined, and the deposition of Peter Keller, a director at the time of the loan to Wilson, was taken. For a part of the testimony of General Forster, see opinion of Woodward, J. The other witness said, inter alia, that he did not recollect of anything being made known to the board of directors of a marriage settlement between Wilson and his intended wife. That he heard of it seven or eight years afterwards at Carlisle. General Forster was then present.
      The deposition of Peter Keller was taken on part of the defendants. He was asked, Was it or was it not made known to the board of directors at any time, by James Wilson or any one else, that the property which James Wilson offered to mortgage had been previously deeded by him and his wife to any one else? The question was objected to, generally, at the time. On the trial it was objected to as leading; and the statement as to the report by the president was objected to as incompetent, being but his declaration. The witness, inter alia, said: We left it to Mr. Elder, the president, to inquire into it, and at the next discount day it was made known to the board of directors that the property was clear of encumbrance.
      He was asked: Had you or not, as a director, any knowledge that Wilson and wife had made a deed for the property to any one before he mortgaged it to the bank? The question was objected to, generally, and on the trial as leading. The answer was, No, I had not.
      Graham, President Judge, observing that the cases of Miller v. Cresson, 5 W. & Ser. 307, and cases therein referred to, were not altogether reconcilable with the cases of Jacques v. Weeks, Barns v. Clinton, Lewis v. Bradford, and Sergeant v. Ingersoll, 7 Pa. and 15 Pa., instructed the jury: -- "That whatever is sufficient to put a party on inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty, as in cases of purchasers and creditors, and would lead to the knowledge of the requisite fact by the exercise of ordinary diligence and prudence. Notice of a deed is notice of its contents. Had the bank such notice in this case of the existence of a prior settlement between Wilson and wife as ought to have put a prudent, discreet person upon inquiry, and would such an inquiry have resulted in the discovery of the truth? If so, then their mortgage cannot prevail against the plaintiffs, who claim under the marriage settlement. But notice of a mere rumor of such settlement would not be sufficient to affect the bank, or the present defendants who claim title through a sale upon their mortgage."
      He instructed them that if the bank had notice of the marriage settlement, it being recorded before the assignment of the mortgage to Albert, was notice to him and those claiming under him.
      The fifth point submitted on part of defendants, was, that it is a settled principle "that the vague reports of strangers, or information given by a person not interested, respecting a defective title to land, will not have the effect of notice to the purchaser. Hence, if the jury should believe the testimony of Mr. Forster, it afforded no such notice to the bank as would affect their title under the mortgage."
      The judge declined to instruct to that effect, but referred his testimony to the jury to determine whether the notice to the bank was vague rumor, or such as ought to have induced proper inquiry which would have resulted in ascertaining the truth.
      Verdict was rendered generally for the defendants.
      Error was assigned to the answers to various points: inter alia, to the answer to the fifth point submitted on part of defendants; and to the charge and submission as to notice. Also to the admission of the deposition of Peter Keller. (MAD: syllabus omitted here)
      The opinion of the Court was delivered by Woodward, J. -- The validity of the marriage articles having been established, when the case was here in 1852 (19 Pa. 72, 77), the great question on the last trial of the cause was, whether the bank had notice of them when the mortgage of 12th December, 1821, was taken. The bank was a mortgagee without constructive notice, for the articles were not recorded until some months after the mortgage was duly executed and recorded. Had the bank actual notice? The plaintiffs held the affirmative of this question, and the burden of proof was on them. The evidence produced and relied on by them was that of General Forster, the cashier of the bank in 1821. He described the negotiations which led to the loan to Wilson and wife, and proved the letters addressed by him to Mr. Clark, as attorney of the bank, and then added, "I heard articles of marriage settlement, between James Wilson and wife, talked of very frequently in bank and out of bank. It was before the mortgage was taken, and while they were negotiating for the loan. When spoken of in bank, it was before the board of directors, but whether in session or individually I cannot say. I did not know the terms -- it was spoken of as such a thing existing. The board did not seem to regard it as of much importance in the transaction with Wilson and wife. " On his cross-examination he stated, "I never heard whether it was in regard to real or personal estate, or anything about it, and did not know who the trustees were. I merely heard there was such a thing. I cannot tell how I acquired the knowledge -- it must have been from some of the directors or before the board. I, perhaps, said, on a former trial, I got the information from Jacob M. Haldeman. I say now from him or the president of the bank. Mr. Elder, the president of the bank, was a lawyer . . . . I had no written communication with Clark and Wilson other than what is contained in the letter-book. I never mentioned to Mr. Clark the existence of the marriage settlement. I never spoke of it, that I recollect, either to him or James Wilson."
      The defendants then proved, by Peter Keller and Jacob M. Haldeman, the only two surviving directors of 1821, that they had no knowledge of the marriage settlement when the loan was made to Wilson and wife, and Mr. Haldeman fixed the time when he first heard of it -- seven or eight years afterward when he went to Carlisle to attend the sale of this property on the mortgage. "Mr. Foster was then along -- no sale was made at that time. I cannot say what year that was -- that was the first I ever heard of this thing. I heard General Alexander speak of it at that time. General Foster was present." General Foster being recalled by the plaintiffs, stated, "I heard of this marriage settlement before and after the mortgage was executed. I got my information at Harrisburg, all that I got. I did attend sheriff's sale of this property with Mr. Haldeman. I don't remember anything about the conversation with Mr. Alexander spoken of by Mr. Haldeman."
      The Court was called on to say that if the jury believed General Forster, the bank and all claiming under it were affected with notice of the marriage articles; but the learned judge laid down, with commendable brevity and precision, the law as to notice of an unrecorded deed, and referred all the evidence to the jury for them to decide whether such notice had been proved or not.
      Herein there was no error of which the plaintiffs have reason to complain. We are of opinion that the Court might have assumed higher ground, and ruled that General Forster's testimony, taken without any allowances on account of age, infirmities of memory, or of conflicting proofs, failed to prove such notice to the bank of the marriage settlement as would entitle that instrument to preference over the mortgage.
      The mortgagee here was a bank, governed by a president and directors, and to affect the corporation with notice it must be brought home to them, for it is the president and directors in the aggregate, with whom strangers have to do, and by whom all corporate acts are to be performed. Hence notice to a single corporator, is not notice to the corporation unless communicated to the board. Where a by-law, or the course and usage of business, have devolved certain duties on a particular officer of the bank, notice to him of matters relating to the routine of business intrusted to his charge, is notice to the bank, for the law presumes the directors to have employed a faithful agent, who will communicate to them what is communicated to him, and if he do not, the responsibility is on his employers.
      But in the negotiation of a loan of a character and upon a security so much out of the course of ordinary bank accommodations, as that made to Wilson and wife, and especially when an attorney has been employed to act for the bank, notice of an unrecorded deed communicated to the cashier could scarcely be considered notice to the bank. The correspondence of Mr. Forster shows that the board was deliberating and acting in regard to this loan, and that he sent such instructions, and such only, to the attorney, as the board directed. The transaction did not fall within the circle of his ordinary duties as cashier, but was peculiar and extraordinary, and he did not communicate to the board what he says he heard about the marriage articles. Under these circumstances, had he received full and explicit notice of the articles, it might be well doubted whether it could, in reason or law, be treated as notice to the bank. But he never received such notice. He heard a marriage settlement spoken of, but who were the trustees, what was settled, whether real or personal estate, and on what terms, and when made, he did not hear. Was this notice of the conveyance, which had been made of the particular premises, described in the mortgage? Obviously it was not. Nor was it sufficient to put the bank on inquiry. For, of whom could they inquire? If of the grantors, the conveyance was denied, for the mortgage made by them was a solemn assertion of their ownership of the premises. Indeed it is a fair presumption from the transaction, especially from Mrs. Wilson's joining in the mortgage, that all proper inquiries were made in that quarter, and that the title was represented as in her. Of the trustees, the bank could not inquire, for even Mr. Forster had not heard them mentioned. Nor was any person in possession of the premises under a title inconsistent with that of the mortgagors. The public register was searched in vain, and no clue whatever was furnished to Mr. Forster, by which he or the directors could come to a knowledge of the truth. Whatever puts a party on inquiry, amounts to notice, provided it would lead to the knowledge of the requisite fact, by the exercise of ordinary diligence and understanding; but evidence that it was generally reported in the neighborhood that a person had sold land to another, and that the report was communicated to the defendant, is not sufficient. (MAD: more not copied here) Now, a mortgagee, as well as a purchaser, is within the recording Acts, and equally entitled to notice of previous conveyances; and if these rules be applied, it is evident from the testimony of General Foster that no person in interest ever gave him notice of the marriage articles, and that vague rumor, which was all he had, never furnished him with such facts as would have enabled the bank, with the use of ordinary diligence and understanding, to discover their relation to this land.
      In equity a purchase with notice of a secret trust is regarded as a fraud, and therefore it must be made out by clear proof of actual notice. My opinion is, said Duncan, J., in Peebles v. Reading, 8 Serg. & Rawle 484, 496, that in such a case "the notice should be actual, circumstantial in the transaction," and "by the party in interest." "It must be proved that he knew exactly the state of the party having the equity, and knowing that acquired the legal estate. Nothing short of this, which is actual fraud, will postpone his legal title; and the fraud must be very clearly proved."
      This is a pretty strong statement of the rule, and must be taken with the modification settled in subsequent cases, already referred to, that what is sufficient to lead to the fact, is notice of the fact; but where, as in this case, neither the special agent and attorney of the corporation, nor any officer of it having the business in charge, ever heard an intimation of the secret trust, and the cashier heard only such vague rumors as General Foster describes, there is not the least difficulty in saying that there was neither actual notice, nor its equivalent, and the Court might very properly have taken the case from the jury and ruled it against the plaintiffs on this point. Of course they were not injured when, instead of doing this, the Court submitted the question to the jury.
      The four propositions of the plaintiffs in regard to the validity of the judgment on the mortgage, are in direct conflict with the ruling of this Court, when the cause was last here, and therefore they were all properly negatived.
      It is not necessary to notice the answer of the Court to the defendants' first point. As the decisive point in the cause might have been ruled by the Court, and was found by the jury against the plaintiffs, this alleged error is wholly unimportant.
      In the other answers of the Court, and in admitting the deposition of Peter Keller, there was no error.
      The judgment is affirmed.

"Pennsylvania state reports, containing cases adjudged in the Supreme Court during part of December term 1849 and March and July terms 1850" by George W. Harris, Vol.I ("Pennsylvania Reports"); Vol.13, pg.459 to 463 (California State Law Library, Sacramento, 1/2004)
      MAHON v. DUNCAN; Supreme Court of Pennsylvania; 13 Pa. 459; May, 1850, Decided.
      Error to the Common Pleas of Cumberland County.
      This was an ejectment for 30 acres and 67 perches and allowance of land by Duncan vs. Mahon.
      Mahon, the defendant below, claimed under a warrant to him of 6th February, 1849, and survey by the deputy surveyor in the same month. The land covered by this warrant was alleged, on his part, to lay between two surveys, claimed by Duncan, the plaintiff, viz: between the South line of the William and Thomas Duncan survey of November, 1762, for 250 acres and 140 perches, and returned in 1782, on a warrant for 50 acres, to them, of the 10th June, 1762, and the North line of the William Duncan survey of 4th March, 1767, for 229 acres and 87 perches on his warrant of the 1st of August, 1766. This survey returned in 1789. This last tract was patented to William Duncan in 1789.
      On a caveat by Duncan, plaintiff below, against Mahon, the board of property in April, 1849, decided that the survey of Mahon should be accepted.
      It was alleged, on the part of Mahon, that according to the calls of the South line of the tract first above referred to, and the North line of the other tract, on a survey being made upon the ground, that there was vacant land between them, and that vacant land was claimed by Mahon, under his warrant and survey. It was also alleged, on his part, that there were marks on the ground of the old returned surveys, and that the marks agreed with the calls of such surveys, and that there were no marks on the ground to show that the two lines of the old surveys, or of either of them, were run at different places from those called for by such returned surveys.
      It was contended on the part of Duncan, that those two South and North lines had not been actually run upon the ground. That William Duncan was, in 1776, the owner of the western portion of the Thomas and William Duncan tract, and that owning this, he made application for authority to take up 160 acres adjoining his other land. That the warrant was placed in the hands of the deputy surveyor, and in that survey there is a call made for other land of William Duncan. That of the land in dispute, two-thirds or more of it are covered with timber, but no cross line or marks can be found to show that the South line of the survey of 1762, or the North line of that of 1767, had ever been marked on the ground. William Duncan used the two as one tract, beyond the memory of the oldest witness who testified at the trial. It appeared that part of the land in dispute had been cleared so long as to be without stumps -- part of it still had some stumps. William Duncan devised the land in dispute to David Duncan, the plaintiff below.
      Defendant's counsel put various points to the Court, to some of which Watts, President, charged as follows:
      The cause is within a narrow compass; and it is so much a matter of fact, that we must submit it to you. If the William and Thomas Duncan warrant, for the use of William Duncan, and the William Duncan warrant were actually run and marked upon the ground, and returned into the land office as not adjoining each other, but with vacant land between them, and whether this was by design of the owners of the warrant or by mistake of the surveyor, and the land in dispute is the vacancy between them, then the defendant is entitled to the verdict.
      But if the line was left as an open line, so far as actual running or marks on the ground were concerned, from 1762 until 1766, when the William Duncan warrant was taken out, and until 1767, when that warrant was executed, and the deputy surveyor adopted the actual or ideal line of the Thomas and William Duncan warrant and survey, and intended and did return them as adjoining each other, then the law will reconcile the conflicting elements of these two surveys, and give to the William Duncan warrant the survey upon the William and Thomas Duncan warrant as a definitive boundary. And in this view of the case the plaintiff is entitled to recover.
      When William Duncan, in 1766, took out his second warrant and had it executed in 1767, he intended to locate it as adjoining his other lands, which he had purchased from the proprietors only four years before, for in his warrant he calls for his other land as adjoining, and when the survey was made by the deputy surveyor, he marks the other land of William Duncan as adjoining. Now, if it was actually so located on the ground as adjoining, and so returned, then the land belongs to the plaintiff, and your verdict should be for him; but if he intended to throw out the land in dispute, and did throw it out, he has now no title, and the defendant should recover. And as we before said, that if the North line of the William Duncan warrant was actually run and marked on the ground, and the South line of the William and Thomas Duncan survey were also actually run and marked on the ground, and they were so returned into the land office, by design or mistake, the plaintiff is not entitled to recover, and your verdict should be for the defendant.
      This charge excepted to by the plaintiff and defendant, and this bill sealed.
      April 17, 1850.
      Verdict for plaintiff, and judgment thereon.
      The above answers of the court, inter alia, were assigned for error. (MAD: syllabus and arguments of counsel omitted here)
      The opinion of the court was delivered by Burnside, J. -- Mahon claimed title under his late warrant of the 6th February, 1849, a survey of thirty-acres, a strip between the survey of 1762 and 1767 which belong to Duncan.
      On the return of Mahon's survey, the matter was heard on a caveat against its acceptance before the board of property, who decided in favor of its acceptance; whereupon Duncan instituted this ejectment.
      The plaintiff in error complains that the court erred in their charge to the jury.
      1. In their answer to defendant's 2d point.
      2. In their answer to defendant's 3d point, and
      3. In their answer to defendant's 4th point.
      The errors assigned, as well as the arguments to sustain them, resolve themselves into a complaint against the learned Judge of the Common Pleas, in not taking the case from the jury and not directing them that the defendant was entitled to a verdict. It is due to the court to state, that the jury were instructed that the defendant had shown a legal title from the common wealth for the land in controversy, and unless the plaintiff has shown an older and better title, and that the land in dispute is embraced within the lines of either the William and Thomas Duncan survey, or the survey of William Duncan, he must fail in this action; and the defendant would be entitled to a verdict. The survey of William and Thomas Duncan, was made in November, 1762, and in 1766 William Duncan took his warrant for 160 acres adjoining his other land as well as other old surveys. It was surveyed in '67, and returned adjoining his other land on the north; the owners of the survey of William and Thomas Duncan have had possession of the thirty acres from time immemorial. It is in part cleared, and by cutting timber where they pleased, where it was not cleared; and so long cleared that the stumps have disappeared from the field. In this case, if the land was vacant, the clearing over gave no title against the commonwealth; Morris vs. Thomas, 5 Binn. 77; Johnston vs. Irwin, 3 Serge. & Rawle 291. Great regard has ever been paid to the return of the Deputy Surveyor -- but the return will be controlled by the lines actually marked on the ground; as the lines on the ground and the corners constitute the actual survey. So the jury were fully and fairly instructed. But the judge left it to the jury to determine under the evidence, whether the deputy surveyor did actually run the southern line of the William Duncan survey, and leave a vacancy between that survey and his other land, which was called for by the warrant and actually returned and accepted in the land office and patented. There were several facts in evidence in this case, proper for the consideration of the jury. It was manifest that the plaintiff intended to take it up, and that it was included in his warrant of 1766, returned in his survey of 1767 on that warrant; unless the surveyor actually cut it off, there was no vacancy. Some of the lines had to be shortened to exclude it. The subject of surveys is so fully considered in the cases cited, that I deem it unnecessary to state the evidence more particularly, merely remarking that where the old warrant particularly called for the land in dispute, and the survey upon it returned into the office, there remaining undisturbed for more than seventy-five years, with possession accompanying it, the case must be indubitably clear that the land was not within the survey, to disturb it at this distant day. In truth I have not as much confidence in the modern surveyors of Penn'a, as I have in the Armstrongs, the Lukens, the Palmers, and the Maclays, before the revolution. Their work to this day tells well, and is entitled to the highest regard of our courts and juries. The last purchase made in 1784, and the opening of the land office under it in 1785, introduced many bungling surveyors who have been very prolific in this State from that day to the present. I mean no reflection on the gentlemen examined in this case. We all think the case was properly submitted to the jury.
      The judgment is affirmed.

"Pennsylvania state reports, comprising cases adjudged in the Supreme Court of Pennsylvania" cases argued at January and May terms 1870; by P. Frazier Smith, Vol.XV; Vol.65, pgs.450 to 451 (California State Law Library, Sacramento, 2/2004)
      McCUNE'S Appeal; Supreme Court of Pennsylvania, Harrisburg; 65 Pa. 450; May 11, 1870, Argued; May 26, 1870, Decided.
      Appeal from the decree of the Orphans' Court of Cumberland county: No. 108, to May Term 1870. In the estate of Anna M. McCullough, deceased.
      John McCune died intestate in May 1855, owning real and personal estate, leaving a widow, Sarah A. McCune, seven children and a minor granddaughter, Anna M. McCullough, the child of Bathsheba McCullough, a daughter of the decedent who had died before him. W. G. Duncan was appointed guardian of the minor; her father died in 1856. Under proceedings in partition the real estate of John McCune was adjudged to his son William D. McCune on the 20th of April 1857, and in 1857 and 1858 he paid to Anna's guardian $1083.99, her share of the valuation-money due before the death of the widow. Anna died in May 1867 in her minority and unmarried. She left to survive her, her grandmother, Sarah A. McCune and uncles and aunts of the whole blood and brothers and a child of a deceased sister of the half-blood. Administration of Anna's estate was granted to William A. McCullough. The guardian of Anna settled his account after her death and paid the balance, $795.07, to her administrator; this sum appeared to be part of her share of the valuation-money of her grandfather's real estate paid by William McCune. In addition to this sum her administrator received $212 of personal estate. His account, which was confirmed March 17th 1868, showed in his hands a balance of $547.55, which was referred to an auditor for distribution.
      The contest was between the heirs of Anna of the whole blood and the next of kin of the half-blood. The one claiming that the proceeds of the real estate received by the guardian retained its character as realty; the other that it had been converted.
      The auditor reported that the fund should be distributed as personal estate to the next of kin.
      After exceptions the Orphans' Court (Graham, P. J.) confirmed the report.
      Sarah A. McCune, the grandmother, appealed to the Supreme Court and assigned the decree of confirmation for error.
      (MAD: arguments of counsel omitted here)
      Before Thompson, C. J., Read, Agnew and Sharswood, JJ.
      The opinion of the court was delivered, May 26th 1870, by
      THOMPSON, C. J. -- The guardian of the intestate in this case, Anna McCullough, recovered the share of his ward in her grandfather's estate through proceedings in partition of that estate. The first descent to her was in the character in which the share existed, viz.: as land, although converted into money. After a time she died, and the question now is, to whom does the unexpended balance of Anna's share pass? This is easily answered. It being the second descent, the money undoubtedly passed as money and not land: Hay's Appeal, 52 Pa. 449. It consequently goes to the brothers of the half-blood and the issue of a sister of the half-blood. The authorities cited by the learned judge and the counsel for the defendant in error prove this beyond a doubt. The ruling of the court below sustaining this result was right, and the decree is affirmed, and the appeal dismissed at the costs of the appellant.
      Appeal dismissed.

Go to the Cumberland Co. PA Court Records Part 1
      JOSEPH DUNCAN Administrator of DINAH DUNCAN deceased, against Administrators of DANIEL DUNCAN deceased; Supreme Court of Pennsylvania, Lewiston; 3 Yeates 203; May, 1801, Decided.
      DUNCAN and wife against FORRER; Supreme Court of Pennsylvania, Southern District, Chambersburg; 6 Binn. 193; October 9, 1813, Decided.
      STILES against NELLY, a Mulatto; Supreme Court of Pennsylvania, Chambersburg District, Chambersburg; 10 Serg. & Rawle 366; October, 1823, Decided.
      FOULK against BROWN; Supreme Court of Pennsylvania, Middle District, Harrisburg; 2 Watts 209; May, 1834, Decided.

Go to the Cumberland Co. PA Court Records Part 2
      EGE v. SIDLE et al; Supreme Court of Pennsylvania; 3 Pa. 115; June 11, 1846, Decided. Harrisburg, May term 1846.
      WILSON v. McCULLOUGH; Supreme Court of Pennsylvania; 19 Pa. 77; July 20, 1852, Decided.

Return to the Cumberland Co. PA Research File


Return to Index to Duncan Research Files in Pennsylvania

Return to The Genealogy Bug's Home Page