Duncan research files of
Circuit Court Minutes, 1799-1851, Knox Co. TN, by WPA; incl. index (FHL film 24,725 item 2-3)
Looked at, not copied
Knox Co. TN Circuit Court Minutes
Vol. 1810-1817 (FHL film 1,021,338; from index from Marilyn Childress 10/1991)
Pg.85: 15 Aug. 1811, Stephen Duncan vs. Stephen Heardy; bond dated 11 Aug. 1810 given by defendant, with Quin Maston security, to pay $42.44 costs in Superior Court case in Hamilton District within 9 months, but not paid; plaintiff to recover from defendant the costs.
Pg.90-1: 16 Aug. 1811, Christian Rhodes vs. Stephen Duncan, decree in equity. Stephen Duncan not an inhabitant of state; that Rhodes agreed on 1 April 1797 to buy two lots in Knoxville and gave his bond to Duncan for 500 acres land; that Duncan conveyed the two lots to John Finley; Duncan started to "quit" on the bond but never delivered title to the land; bond not paid; suit should not continue.
Pg.245: 16 Feb. 1815, John Worly vs. Jeremiah Duncan, for reasons in the affidavit of defendant, the cause is continued to next term.
Vol. 15-17, 1864-1866 (FHL film 1,021,347)
No index; no court in November (looking for Benjamin Duncan, Nov. 1865; see Blount Co. TN)
Knox Co. TN Circuit Court Minutes 1810-1889, enrolling dockets 1844-1873; incl. individual index in most volumes
Enrolling dockets v.G-H, 1844-1850 (FHL film 1,021,321)
Index to Vol.E: Dunkin, W.H. vs. the State, pg.26; Duncumb, W.H. vs. the State, pg.50; Duncan, J. et al vs. W.R. Bowen et al, pg.71.
Vol.G, 1844-1848 - no index to Vol.G
Vol.H, 1848-1850 - no Duncan
Enrolling dockets v.L-M, 1858-1861 (FHL film 1,021,322)
Vol.L, 1858-1859 - no Duncan
Vol.M, 1860-1861 - no Duncan
Enrolling dockets v.15B 1864-1867 (FHL film 1,021,323)
Not looked at
Knox Co. TN Circuit Court Minutes 1810-1889
Vol.2, 1817-1829 (FHL film 1,021,338 item 2)
2-120: August, 1821, Robert Duncan, a native of Ireland born in county of Enterim [Antrim?] of age of 17 years and now or lately owing allegiance to King of United Kingdom of Great Britain and Ireland, appeared in court and declared intention to become a citizen of the United States and to renounce any foreign allegiance.
Knox Co. TN Superior Court Minutes 1793-1809, by Hist. Records Survey, incl. index (FHL film 24,725 item 1)
Looked at, Stephen and Joseph Duncan, not copied
Knox Co. TN unindexed court records (typed copy from Joyce Colliflower 6/1989)
Knox Co. TN, 4 May 1803, James White and John ----? Esqrs, Justices of Peace, to Sheriff of Knox Co.; upon complaint by Patrick Campbell, Terrance Campbell and Benjamin C. Parker, all of Knox Co., that Stephen Duncan labourer, Joseph Duncan ----? and John Childress shoemaker, all of Knox Co., having been charged by said complainants of feloniously killing and murdering Joseph Ravenhill late of Knox Co.; take into custody and prison the said Stephen Duncan, Joseph Duncan and John Childress and hold them without bail until they are discharged by a court of law.
Knox Co. TN, 23 May 1803, appeared before James White, JP of Knox Co., Patrick Campbell who saw Stephen Dunkin fire a gun through a crack of the house and wounded Joseph Ravenhill so as his life ----?. Warrant to Knox Co. Sheriff to bring Stephen Dunkin before a Justice of Knox Co. to be dealt with as the law directs. Patrick Campbell & Thomas Brown statement for state, executed 24 May 1803, Jos. Love D.S. Warrant A/9 Stephen Dunkin (arrested) 23 May 1803.
Petition for Writ of Habeas Corpus, 29 June 1803; that Joseph Duncan complained on oath to Hugh L. White, a Judge of the Superior Court, that he is in close confinement in the jail of Knox Co. on a charge of felony for the murder of Joseph Ravenhill of which crime he is innocent, and has petitioned White for a writ of Habeas Corpus; the keeper of the jail in Knox Co. to bring Joseph Duncan by whatever name he may be called, to appear before White at 10:00 tomorrow at the Clerk's room, that he (Duncan) may do, submit to, and receive whatsoever may be adjudged right and constant with the law. Return by Jos. Love, jail keeper, on 24 May 1803. (MAD: 24 or 29?)
Examination of Patrick Campbell, Thomas Brown, Benjamin C. Parker, Terrance Campbell, Lewis Cox, Joseph Love and Thomas McCarry on the trial of Stephen Duncan, Joseph Duncan, and John Childress on behalf of the State for killing Joseph Ravenhill on 25 May 1803 at the house of James and William Parks formerly occupied by Christian Rhoads in Knox Co. TN. Taken before James White & John Hillman, Justices for said County.
Stephen Duncan one of the prisoners was first brought forward and pled not guilty. The witnesses above named were all sworn and examined one by one. (1) Patrick Campbell states he saw Stephen Duncan shoot Joseph Ravenhill who immediately dropped. That Ravenhill had made use of no violence or threats but walked to the door of the house and asked them within to open the door or some such words and also stated that the prisoner was informed that the party without had come forward with a state warrent against Joseph Duncan and John Childress and others; that possession was not what they came after, they might keep it, as that was not their object, and that they did not want Stephen Duncan nor had anything to do with him. (2) Thomas Brown states he saw Ravenhill fall from the fire of a gun within the house and that he is since died from the wound; that Ravenhill was at the door in a peaceable and friendly manner asking for entrance by saying Come Boy Open The Door. (3) Benjamin C. Parker states he saw Stephen Duncan put his gun through a crack of the house and apparently take particular aim by leveling his gun to the door where Ravenhill stood and deliberately fired. Ravenhill he very shortly after saw was shot down. (4) Terrance Campbell says he was on the contrary side of the house where could not see, only heard the firing. (5) Lewis Cox states he saw Stephen Duncan deliberately ----? himself (as he believes) by bending on knee to the floor and leveling his gun through a crack at the door and fired and saw Ravenhill before the mouth of Duncan's gun falling, did fall was wounded and of which he died. (6) Joseph Love Sheriff states that after he had received his State warrant to all the parties in the house, told his business was only with those named in the warrant, and that he did not come to get possession, that he did not want it, with much friendly advice and positive ----? on the part of those in the house after all this, and before any violence was made use of on the part of him or those with him, he saw Stephen Duncan lay down a Pistol and take up a Gun and fired it at Ravenhill who immediately fell and was afterward carried off the ground.
John Childress next brought forward and charged who pled not guilty. (1) Patrick Campbell states that Childress was in the house armed, and apparently disposed to shoot from the manner in which he conducted himself at the time Stephen Duncan shot Ravenhill. (2) Benjamin Parker says he saw John Childress in the house armed with a musket at the time Ravenhill was shot and that he had smelt and burned powder and would do so again before he left the house, after which Benjamin Parker states he saw the mouth of the gun that he thinks Childress ----? ----? as if she had been fired and immediately after which he found James Parker wounded in the shoulder and jaw and is inclined to believe it was from the fire of John Childress. (3) Thomas Brown states that John Childress was in the house at the time Stephen Duncan shot Ravenhill before and after, that Childress stood near the middle of the house apparently preparing to fire a gun he held with both hands, saying he was informed this was a state warrant against him and that he would not be taken, ----?. (4) J. Love states that John Childress was in the house armed with a gun apparently making ready to fire when Stephen Duncan shot Ravenhill and swore he would come out dead before he would give up. (5) Lewis Cox says John Childress was in the house before ("and after" crossed out) Stephen Duncan shot Ravenhill armed and conducting in a very threatening manner.
Joseph Duncan next brought forward and charged who also pled not guilty. (1) Benjamin Parker states that Joseph Duncan was within the house armed before and after Stephen Duncan shot Ravenhill, that he also ----? giving up saying he had learned his lesson before he left town. (2) Patrick Campbell states that he saw Joseph Duncan within the house armed before Stephen Duncan shot Ravenhill and that he heard Joseph Love the Sheriff tell Joseph Duncan that it was not possession he wanted but ----? the ----? of the State warrant which read that Joseph Duncan said he had the advice of a lawyer and would not give up. (3) Joseph Love states that Joseph Duncan was within the house before and after Ravenhill was shot, armed at the same time, who refused giving up in most positive terms or being taken by Love with the States warrant which was ----? to him. (4) Thomas Brown says Joseph Duncan was in the house before and after Ravenhill was shot and Mr. Brown also states that he heard Joseph Duncan say he would have killed Joseph Love if his pistol had not have ----? as she was with charges. (5) Lewis Cox says Joseph Duncan was in the house before Ravenhill was shot, and positively refused to give up after being told by the Sheriff about the State warrant and that he did not want possession. (6) Thomas McCarry on his examination states that Joseph Duncan was in the house before Ravenhill was shot, that he was armed and came forward to the window and a pistol fired, which he McCarry thinks Joseph Duncan fired it. McCarry also states to Joseph Duncan deliberately the impropriety of his, Duncan, conduct, and advised him to give up who refused ----? saying he had legal advice.
On the examination of the above witnesses all seem to agree that no violence was offered or threat made by the Sheriff or any of the party with him that Ravenhill was shot down and that the State warrant was ----? and explained and no ----? seemed to want anything else but the party named therein.
On Habeas Corpus, State vs. Joseph Duncan, 30 June 1803.
Terrance Campbell a witness called and sworn on behalf of the Defendant; questions by defendant's council: (1) Did you hear the Sheriff forbid any person from breaking the door of the house in which Defendant was? Answer: I did not. (2) Did you hear the Sheriff command any person to break into the house? Answer: I did not. (3) Did you see any person raise a rail to break the door? Answer: I don't remember that I did. (4) Did you hear those in the house direct those out of it to keep off? Answer: Stephen Duncan I think said if they broke the door they would do it at their risk, if they broke the door or attempted to enter the house he would shoot, or some words to that effect. (5) Immediately after Stephen Duncan fired did not those in the outside of the house fire in? Answer: I don't know I was on the different side of the house from where Ravenhill was shot.
Joseph Love is sworn for Defendant; questions by defendant's attorney: (1) Do you recollect of prohibiting them from breaking the house? Answer: Not just at the time Ravenhill was shot - Parks ("took the rail to break the door" crossed out) struck with the but of his gun the door. I mentioned to him not to break it just then perhaps we could get them out peaceably if we could not we would break it. (2) After this and before Ravenhill was shot did you give any directions to break the door? Answer: I don't remember that I did. (3) Did you see Ravenhill make use of any means to break the door? Answer: I think I seen him have a piece of timer a punchion or piece of rail but did not see him strike with it; I think I was looking in at the window; this was within a few minutes of the time Stephen Duncan fired; perhaps the very time? (4) (Questions by the Judge) Do you know how Ravenhill happened to be there, if you do tell how it was? Answer: I summoned him to go and aid me in taking the bodies of Joseph Duncan, John Childress & Richard Elliott & John Finly, who I was informed was in that house. (5) What reason had you for summoning a guard to go arrest them? Answer: I was told when the States warrant was handed me that Joseph Duncan had said if I came there he would kill me. (6) When you got to the house did you inform those in it what was your object in coming? Answer: I did, Stephen Duncan told me to stand off; I told him I had nothing against him I wanted two men ----? the house; he said he had ----? ----? possession; I told him he might keep it to eternity; I did not want him or the possession, to send them two men out and he might stay there. (7) Do you know that Joseph Duncan heard this? Answer: I think he was looking at me, I called to him by name that I was going to read the state warrant. (8) (Questions by Defendant's attorney) Did you hear Parks or any other say before you went down there anything about the possession? Answer: I did, I heard them say the others had got possession in the night forcibly and they wanted it back in some way; but I did not go to give them possession nor summon the men for that purpose. (9) How long was it after you received the warrant before you went to execute it? Answer: I received it early in the morning and went to execute it about 10 o'clock the same day; I remember telling Stephen Duncan both before and after reading the warrant I had nothing to do with him nor the possession, that Joseph Duncan & Childress who were in the house with him, I wanted; that I had summoned all them men to aid and assist me in arresting them and charged him not to interfere with them or me.
James Miller, a witness for Defendants ----? and saith: On a Monday morning in May last I was coming to town, met with the Sheriff at Mr. Browns & he summoned me on a guard to take the bodies of 3 or 4 men named in a warrant. I went with him to Rhodin's old place; when we went to the gate we got off our horses and marched down to the house. Several of those who went with us got to the house before me and some of them were talking in at the window with those in the house when I got there. They advised the Defendant to come out & give up; he said he would not come out; a great deal of conversation on that subject took place which I did not particularly attend to. I went round to where Stephen Duncan was talking with T. Brown, Parks and others. They were talking about the possession, telling him he had taken it forcibly, he was saying he got it peaceably, he said John Finly had given a ----? for it. It seemed as if Mr. Brown was convinced by him he had got it peaceably for I heard Brown exclaiming against the old woman for giving it up; heard Stephen Duncan presently say he would not give up the possession & that if any person attempted to break the door he would kill or cripple them. The Sheriff about this time was called and came up to read his authority and read it, I heard him reading it but did not hear its contents. The dispute continued some time, Parks and I went round to the other side of the house. Mr. Parks took a rail & began on that door with an apparent intention of breaking it open as he struck it pretty hard. The other door was struck at the same time by some person, I don't know who, two or three times, I don't know which before the first gun fired. Immediately after the first gun fired 2 or 3 guns fired simultaneously as quick as they could. Immediately afterward a pistol fired out at the side where I stood. When the first fired out at the side where I was, Parks laid down his rail and cried out a miss?; proceded back to take up his rail and a second fired that struck him, I seen him scratch his shoulder thought he was hit in (a dangerous place). He turned round the house to where oppisite a window. (a dangerous place) went and took him away & carried him up to his house. After being there some time seen Joseph Duncan, Childress & ---- (named crossed out) come up; Joseph Duncan observed to the Sheriff who was with me he did not know his meaning or he would not have stood out. He then gave himself up. (1) Questions by Defendants Council: You have said immediately after firing first gun 2 or 3 others fired. Did they fire from within or out of the house? Answer: I can't tell. (2) Do you recollect any threats by Parks or any others about taking possession before the affray took place? Answer: On our way down to the house I did hear some conversation by some of the company when I said if they meant to keep possession all the men there could not take it. I think there were eleven horsemen of us, I don't know how many footmen; all armed that I noticed, some with one kind of arms & some with others. (3) Do you remember of hearing the Sheriff prohibit them from breaking the house? Answer: I don't remember to have heard him say anything about it; remember to have heard Stephen Duncan say he had no spite against any man in the Company. (4) Do you recollect of seeing a rail at the opposite door from where you was? Answer: Sometime after the firing was over I seen something like aa piece of a puncheon near where Ravenhill was said to have been shot.
State of TN, 16 July 1803, by Judge David Campbell; directed a Court of Oyer and Terminer to be held at Knox Co. Court House on Wednesday, 27 July, for trial of Stephen Duncan, Joseph Duncan, and John Childress, who stand committed on a charge of murder; directed to Jenkins Whiteside, Esqr., Attorney General for State of TN, received 20 July 1803. Copy delivered to Stephen Duncan, Joseph Duncan, and John Childress, prisoners in custody in Knox Co. jail.
Summons to Sheriff of Roane Co. TN, 16 July 1803, to summon George Preston, Joseph Looney, Jacob Gardenhire, James Preston, Isam Cox, William Black, Simeon Eldridge, Thomas Brown, Robert Alison and Nicholas Sterns to attend as venire men at the Knox Co. courthouse on 27 July on the trial of Stephen Duncan, Joseph Duncan and John Childress on a charge of murder. Executed 20 July 1803, John Brown, Sheriff.
Summons to Sheriff of Jefferson Co. TN, 16 July 1803, to summon John Blackburn, Andrew Henderson, Thomas Snoddy, Christopher Haynes, Adam Peck, George Dougherty, Hugh Henry and James Dougherty to attend as venire men at the Knox Co. courthouse on 27 July on the trial of Stephen Duncan, Joseph Duncan and John Childress on a charge of murder. Executed 19 July on Jn. Blackbourn, Andw. Henderson, Tho. Snoddy, Chris Haynes, Adam Peck, Geo. Dougherty, J.L. Doherty. Hugh Henry not found in my county. /s/ Ben Bradford, Sheriff.
Summons to Sheriff of Knox Co. TN, 16 July 1803, to summon George M Hutt (McHutt?), Thomas Gillespy, Alexander Campbell, John Cane, Benjamin Wheeler, John Manifee, James Havens, Samuel Frazer, Alexander Caldwell, Hezekiah Bailes, Thomas Amerson, James Armstrong, John Sawyers, John Love, Samuel Givens, Andrew M. Campbell and John Armstrong to attend as venire men at the Knox Co. courthouse on 27 July on the trial of Stephen Duncan, Joseph Duncan and John Childress on a charge of murder. Came to my hand 16 July 1803, Jos Love, ds; executed 26 July 1803 Jos. Love ds.
State vs. Stephen Duncan; Subpoena, 23 July 1803 to Patrick Campbell, Tarance Campbell, James Park, Thomas Brown, Benj. C. Parker, Lewis Cox, Thomas McCarry, Joseph Love, to appear 27 July instant on behalf of the State. (was not executed on Thomas McCarry)
State vs. Stephen Duncan; subpoena 23 July 1803 to William Whitson to appear on 27 July instant on behalf of the State.
State vs. John Childriss; Subpoena, 23 July 1803 to Patrick Campbell, Tarance Campbell, James Park, Thomas Brown, Benj. C. Parker, Lewis Cox, Thomas McCarry, Joseph Love, to appear 27 July instant on behalf of the State. Thomas McCarry not found.
State vs. Joseph Duncan; Subpoena, 23 July 1803 to Patrick Campbell, Tarance Campbell, James Park, Thomas Brown, Benj. C. Parker, Lewis Cox, Thomas McCarry, Joseph Love, to appear 27 July instant on behalf of the State. Executed on all but Thomas McCarry, not found.
State vs. Joseph Duncan; subpoena 23 July 1803 to William Whitson to appear on 27 July instant on behalf of the State.
State vs. Stephen Duncan, Joseph Duncan & John Childress; subpoena 25 July 1803 to Sarah Roddy, Richard Elliott and Willie Blount, to appear 27 July instant on behalf of defendants.
State vs. Stephen Duncan, Joseph Duncan & Jno. Childress; Subpoena, 25 July 1803 to Wm. Park and Saml. Love to appear 27 July instant on behalf of defendants. William Park not home.
State vs. Duncans and Childress; summons, 25 July 1803 to Mary White, William Foster and George Roulston to appear 27 July instant on behalf of Stephen Duncan, Joseph Duncan and John Childress.
State vs. Duncans and Childress; summons, 25 July 1803 to Thomas Durham to appear 27 July instant on behalf of Stephen Duncan, Joseph Duncan and John Childress.
State vs. Duncans and Childress; summons, 25 July 1803 to John Anthony, James Miller, and William Whitson to appear 27 July instant on behalf of Stephen Duncan, Joseph Duncan and John Childress. Executed on John Anthony & William Whitson 25 July 1803; on James Miller 26 July 1803.
State vs. Duncans and Childress; summons, 25 July 1803 to Dancy Colher or Colhen, William Morrison and Benjamin White to appear 27 July instant on behalf of Stephen Duncan, Joseph Duncan and John Childress. Executed on William Morrison & Benjamin White 25 July 1803; executed on Dancy Colhen, a copy left at his house 25 July 1803.
State vs. Duncans and Childress; summons, 25 July 1803 to John Dowler (Dowlen) to appear 27 July instant on behalf of Stephen Duncan, Joseph Duncan and John Childress.
State vs. Duncans and Childress; summons, 25 July 1803 to William Dowler, William Morrow, Mary Hance (Hawe/Houce) to appear 27 July instant on behalf of Stephen Duncan, Joseph Duncan and John Childress.
Superior Court of Law & Equity, Hamilton Dist., 1793-1808, Knox Co. TN; by Hist. Records Project; incl. index (FHL film 24,719 item 1-2)
Stephen and Joseph Duncan, looked at, not copied
Superior Court Records, Oyer & Terminer Court, Hamilton Dist., 1793-1798, Knox Co. TN; by Hist. Records Project, incl. index (FHL film 24,736 item 1)
Pg.308: March 1797 and 1798, suit over rent of a house in bad repair, owned by Stephen Duncan; not copied.
Knox Co. TN Chancery Court Records
Rule Docket and Minutes, 1832-1842 (FHL film 464,119 item 2-3)
Part 1 - no Duncan
Part 2 - Robt. Duncan, pg.11 (MAD: cannot find)
Record Book A, 1832-1836 - no Duncan (FHL film 464,119 item 4?)
Minutes Vol.A, 1836-1844 - no Duncan (FHL film 464,119 item 5)
Enrolling Dockets Vol.1, 1/1872 - 11/1872 - no index (FHL film 1,021,325)
Enrolling Dockets Vol.5, 12/1876 - 1/1886 - no index (FHL film 1,021,327 item 1)
Transcripts of cases 9/1832 - 12/1836 - no index (FHL film 1,021,327 item 2)
Enrollments, Series II, Vol.1, 2/1872 - 7/1873 - no index (FHL film 1,021,328 item 1)
Enrollments, Series II, Vol.2, 5/1873 - 9/1875 - no index (FHL film 1,021,328 item 2)
Knox Co. TN Chancery Court Minutes
Vol.A, 4/1832 - 4/1844 - no Duncan complainant (FHL film 1,021,330 item 1)
Vol.B, 6/1844 - 10/1850 - no index (FHL film 1,021,330 item 2)
Vol.C, 10/1850 - 10/1855 - no Duncan complainant, no Duncan defendant spotted in complainant index (FHL film 1,021,331 item 1)
Vol.D, 10/1855 - 10/1859 - no Duncan complainant (FHL film 1,021,331 item 2)
Vol.E, 1/1860 - 4/1865 (FHL film 1,021,332 item 1)
Pg.372, 431: Joseph Duncan Jr. vs. Geo. S. Bolling and J.C. Fagg, debt (not copied)
Pg.482: Jas. Duncan Jr. vs. G.S. Bolling et al, dismissed, July 1861.
Vol.F, 7/1865 - 2/1868 (FHL film 1,021,332 item 2)
No mention King vs. Duncan case
Vol.G, 1868-1870; indexed 64, 165, 318, 347, 373, 427, 437, 441, 514, 571, 677 (FHL film 1,021,333 item 1)
G-64: 25 July 1868, Isabella W. and David L. King vs. Liddy Duncan et al; all defts. appeared except Matilda Duncan; J.J. Lewis to act as guardian ad litem for all the minors except Matilda Duncan upon whom process was not served, to wit: Anna Duncan, James Duncan, Caroline Duncan, Mary Duncan, Hortense Duncan, Eliza Duncan; process served on all the other defendants; Newton Cashion to be appointed administrator of the estate of Samuel H. Duncan decd. who died more than 6 months ago.
G-165: 9 Oct. 1868, same case, W.S. Duncan appeared by his solicitor and asked to become a party to this cause on the ground he is a creditor of the estate of Samuel H. Duncan decd.
G-318: 10 April 1869, same case, Clerk and Master's report Nov. 18, 1868, through Jan. 1869 return, filed.
G-347: 9 July 1869, final hearing in the case; the instrument described in the original bill relating to the interest of Saml. H. Duncan decd. in the dower lands of his mother alleged in the bill to have been vested in Isabella W. King, alleged to have been burn; depositions of James Price, James B. Duncan, and E.H. Flanniken; the consideration in the (missing) contract was Confederate money and therefore void; costs split, complainants appeal.
G-373: 20 July 1869, Liddy Duncan asked her dower in her husband's real estate ... husband Saml. H. Duncan. Pg.427, 7 Oct. 1869, asks costs; pg.437, 9 Oct. 1869, dower laid off, 1/3 part of real estate, adj. Bensinger's line, James Duncan's line, remainder be sold at public sale, minimum $125 cash for costs; pg.514, 12 Jan. 1870, purchase made by James Duncan; pg.571, 9 Feb. 1870, 33 acres, part of land in pleadings, sold for $450 which was reasonable in payment of Wm. S. Duncan's claim against the estate; pg.677, 20 July 1870, to sell more real estate to pay debts.
Vol.H, 1870-1872 -- cannot read most pages in index, pgs. 43, 97, 179, 20 March, 30 March, and 2 June 1871, to sell more land to pay debts. (FHL film 1,021,333 item 2)
Knox Co. TN County Court Order Books, TN Archives (FHL film 1,020,331)
Item 1: "Brand Book" 1792-1817, 1862, 1874 - Court orders concerning land and property - no Duncan
Item 6: "Road Book" 1792-1807 - (orders concerning roads) - no index
"Reports of cases argued and determined in the Supreme Court of Tennessee during the years 1865-66" by Thomas H. Coldwell, Vol.II (spine title: Coldwell's Reports"); Tennessee Reports, Vol.42, pgs.163 to 166 (California State Law Library, Sacramento, 2/2004)
McCLOUD vs. J. C. & B. K. MYNATT; Supreme Court of Tennessee, Knoxville; 42 Tenn. 163; 2 Cold. 163; September, 1865, Decided.
At the February Term, 1861, there was a verdict and judgment, in this case, for the defendants, Judge GEORGE BROWN, presiding. Plaintiff appealed.
SHACKELFORD, J., delivered the opinion of the Court.
This was an action of ejectment, to recover the possession of a small tract of land. The plaintiff's deed bears date in 1837. The plaintiff and defendant derived title through John Mynatt. The controversy between them is, as to the location of the beginning corner, and terminus of the first line, in the plaintiff's deed. The deed calls to begin at a stake in lot line D, corner of Robert Duncan's, (now Greybeat's,) line; thence, with his line, north, 45 degrees east, 110 poles, to a stake in said line; then north, 45 degrees west, 220 poles, to the top of Copper Ridge, etc.
The plaintiff insists, the beginning corner of his tract is in lot line D, in a hollow, near one Nancy Kroutz's, running from thence to a stake near a crooked gum. To commence at the corner claimed by plaintiff, and run to the crooked gum, would include the lands in dispute. To commence in lot line D, as insisted by defendants, and run 110 poles, to a stake, would not include the land in controversy. It will require an extension of fifty poles, to reach the stake near the crooked gum.
It was in proof, the lines were not seen, in selling the lands to plaintiff; that a pine knot stake was planted, as a corner, near the crooked gum, by the vendor. These facts are stated, for the understanding of the principle involved. The jury found a verdict for defendant. The plaintiff moved for a new trial, which was refused, and he has appealed to this Court.
During the progress of the trial, the plaintiff offered to prove,
1st, The statement and declarations of persons since deceased, and made before any controversy had arisen between the parties, that the beginning corner of plaintiff's tract was near the house of one Nancy Kroutz, and that the next corner was at or near a black gum, but that those persons had never lived on the lands, or adjoining tracts.
2d, The plaintiff also offered to introduce proof, that for the last twenty-five or thirty years, there was a common reputation in the neighborhood, that the corners of plaintiff's land was at or near Nancy Kroutz's and at the crooked gum, which the Court refused to receive; and to the rulings of the Court the plaintiff excepts.
In rejecting the introduction of the evidence, we think there was error. By the common law, hearsay testimony is not admissible, except in cases of pedigree, or in ancient boundaries, where public rights are involved, in this State, and many of the States of this Union. The common law has been altered, from necessity. We have sacrificed the principles upon which the rules of evidence are based. The corners and lines of our lands, in many instances, rest alone in reputation. Those who established them have passed, or are passing, away, and in a few years no living witnesses will be found, to prove the original boundaries or terminus of our lands. They were, in many instances, established amidst dangers and difficulties, and the knowledge rested with but few; and if this principle was as insisted, the necessity of the case would require its adoption. The principle was settled in this State, as early as 1812, by this Court, in case of Beard vs. Talbot, Cook's Rep., 142; in which it was held, that what a man then dead heard another person, also dead, say, in reference to the location of a corner, may be given in evidence. In the case of Holland vs. Overton, 4 Yer. 486, reputation, as evidence, was admitted, to establish a corner where a stake was called for in the original grant.
The principle has been the settled law of this State, that, in questions of boundaries, declarations of persons who are dead may be given in evidence, as to the locations of corners and boundary lines. The declarations must have been made antelitem mortem. This principle was settled by the Courts of North Carolina at a very early period. In 1 Hanks 45, it was held, boundaries exist in common reputation, and for that reason hearsay evidence was admitted. In 3 Dev. 342, the declaration of a deceased individual, as to a line or corner, were permitted in evidence, and the weight of common reputation given it. The learned Judge remarked, "whether it was in the spirit or reason of the rule, it is now too late to inquire. It is the well established law of the State, and although it may sometimes lead to falsehood, it more often tends to the establishing of truth."
The Supreme Court of the United States, 6 Peters 228, also recognized the principle. The Court say, land marks are frequently formed of perishable materials, which pass away with the generation in which they are made, by the improvements of the country, and other causes, and often destroyed. It is, therefore, important, in many cases, that hearsay evidence should be admitted, to establish ancient boundaries, but such testimony should be pertinent to the issue between the parties: 1 Greenleaf 191, and note, p. 192.
The testimony offered, and rejected by the Court, was pertinent to the issue, and the Court was in error in rejecting it. There was much testimony to the same point. We cannot say what influence the evidence rejected might have had upon the jury, if it had been before them, in determining their verdict. The plaintiff was entitled to the benefit of it.
We are, therefore, constrained to reverse the judgment, and remand the cause.
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