Duncan research files of
1830 Jackson Co. AR Census
No Duncan indexed
1840 Jackson Co. AR Census (semi-alphabetic, last name first; from census page by page, no Duncan indexed)
Pg.222 DUNCAN, Jackson 1000,1 - 1000,1
1850-1860 Jackson Co. AR Census
No Duncan indexed
1870 Jackson Co. AR Census (pg.374 also from Denzil Mauldin 1/1987)
Pg.310, #93-94, DUNCAN, Francis M. (m) 38 IL works on farm $0-$0
Eliza 38 AR keeping house
Sally 18 AR "no occupation"
William H. 17 TN works on farm
Asa 13 TN works on farm
Fanny A. (f) 7 AR at home
GARRISON, Sally 17 AR no occupation
Eli 11 AR works on farm
James G. 7 AR at home
Pg.374, #66-63, CHARLEVILLE, John B. 52 IL works on farm $0
Barbara 38 IL
Pg.374, #67-(blank), DUNCAN, Donnigan (m) 13, Sonora (f) 12 MO
Amanda 2, John T. 6/12 AR
Index of MO and AR and Partial IL (C-D) Land Patentees, War of 1812; Warrants (Index on FHL film 983,163)
Sec. 2, AR Patentees, from G.L.O. (General Land Office) Patent Book; with added date and Tract Book page; added county from Rand McNally Commercial Atlas (tract books on FHL film 1,302,833)
Volume, page, name, warrant #, quarter (unless noted otherwise), section, township, range; date from tract book pages by Twp & Range; present county.
Vol.13 p.6: Duncan, Daniel, #354; S 1/2 35 10N 4W; 9/25/1837, p.19; West side Jackson Co. between Independence & White Cos. (could have been Independence Co. in 1837)
"The Federal Cases, comprising cases argued and determined in the circuit and district courts of the United States from the earliest times to the beginning of the Federal Reporter, arranged alphabetically by the titles of the cases and numbered consecutively" Cases 13,390 to 14,077, Stevens - Toledo; Vol.23, pgs. 436-440 (California State Law Library 12/2003)
SURGET v. BYERS; Case No. 13,629; Circuit Court, D. Arkansas; 23 F. Cas. 436; Hempst. 715; April, 1845.
(opinion) DANIEL, Circuit Justice. This is a case, as to which, whatever may be the decision upon it, it cannot be denied that it is striking and singular in many of its features. An outline or sketch of the most prominent of those features present these obvious lineaments or characteristics: 1. The institution of an action at law, by a creditor, for the satisfaction of an alleged (and indeed an undeniable) obligation. 2. The discharge of the debtor upon grounds wholly distinct and apart from any impeachment or satisfaction of that obligation, but upon a proceeding which admits the legality of that obligation, and the right to resort to courts of justice for its enforcement. 3. The adjudication of costs against the creditor, for having resorted to a court for the enforcement of his legal rights, and on account of the discharge of his debtor from an obligation and right of action confessedly legal. 4. The transfer, by means of this claim for costs, to the debtor, or to those deriving title under him (and who, from their position in relation to the proceedings above mentioned, and to the parties to those proceedings, were necessarily cognizant of their existence and nature), of landed property in value of more than seven thousand times the amount of the costs adjudged against the creditor, for having instituted his action upon an obligation which is neither impeached nor satisfied. Such, I repeat, are the characteristics of this cause. That they are unusual and striking, none can for a moment hesitate to admit; nor can it be denied, that in their influence they have been, if not ruinous, most oppressive to the plaintiff at law, who is also the complainant in this suit; so unusual and so oppressive, indeed, as to force upon every one the inquiry, by what stern and unbending rule or principle that influence can be maintained; for it must be by the operation of some rule or principle too firm and inflexible to be shaken by considerations of inequality or hardship, or by any circumstances surrounding the transaction, that results such as have been shown in this cause can be operated by the means employed.
The complainant insists that the pretensions set up by the respondent are void: -- 1. As being contrived by the respondent for the purposes of circumvention, oppression, and fraud. 2. For the gross inadequacy of consideration and effect produced by the contrivance of the respondent. 3. For the want of competency in the respondent to sell the property of the plaintiff to become the purchaser of it himself. 4. On account of the unreasonableness and excessiveness of the levy, this being an abuse of the process of the court, and an evidence of a fraudulent design, and as claculated to inspire suspicion and to deter purchasers, by reason of that suspicion, and by offering larger amounts of property than many persons were disposed or were able to buy. 5. By proof that the suit at law, on which the judgment for costs was rendered, was instituted without the consent or knowledge of the complainant, and that therefore whatever may have appeared on the face of that suit at law, there can arise hence no bar to the right of the complainant to aver and show, in a court of equity, the true position of the complainant with reference thereto. 6. That the process sued out on the judgment at law was not made out nor issued by the only legal and competent officer, but was made up and calculated and determined by the respondent, and by him delivered to the sheriff, who was ordered by the same party as to what particular property, and to what extent to levy the execution. That the sale by the sheriff was null, and could not divest the title of the complainant, because it is proven by the witnesses examined on the part of the respondent, that the requisites of the law, a compliance with which was necessary to give validity to any sale of lands under execution, was not complied with, but were departed from, with the knowledge and participation of the respondent.
The positions on which the defendant rests his defence are substantially these: 1. The strength of his legal title under the execution and sale above mentioned, which sale he alleges was fair, and not fraudulent; and 2. That sacrifices of land in the same section of the state, similar to that complained of, were usual under execution sales.
Before considering the grounds as above stated, constituting what may be called the merits of this case, it seems proper to advert to some questions which have been raised upon the pleadings. These, it is well known, are viewed with very little regard to form in courts of equity, where exceptions are never allowed if they are made under circumstances calculated to effect a surprise on either party, and might have been made at a different stage of the cause, and consistently with fairness to all. This is a tribunal which addresses itself to the consciences of men, which looks to the substance of things, and acts upon the maxim, "ut res magis valeat quam pereat."
Exception has been taken in this case, for the first time at the hearing, to Exhibits A. and B., purporting to be copies from the records of deeds by which portions of the lands levied upon and sold were conveyed by Stephen and Wm. B. Duncan to the complainant. The objection to these deeds or copies is twofold: first, that they were not regularly admitted to record in the state of Arkansas; and that as the complainant had proffered the production of the originals, if required, he should be strictly held to their production. In answer to the first of these grounds of exception, it may be remarked that these copies were filed with the bill as exhibits, and therefore, in legal intendment, made portions thereof. The same notice, therefore, which was given of other portions of the bill, was given of the character of that part of it which was constituted by these documents. It was the undoubted right of the respondent to except to the whole or to portions of the bill, or to acquiesce in the regularity of its allegations, either by express admission or by necessary implication. It is a rule of pleading in the courts of common law, that every material averment which is not denied will be regarded as admitted. This rule would seem to apply a fortiori before a tribunal which discourages all exceptions of a formal character. The respondent had the power, either by demurrer or piea, or by direct denial in his answer, to object to the structure of the bill, or to the competency of the parts or members thereof; and surely it was his duty to warn the complainant, to enable him to meet such exception, if designed to be insisted upon. But it is contended that, by the rule of pleading in equity, where allegations in a bill are neither confessed nor denied by the answer, the complainant is bound to sustain them by proofs, on the final hearing. This rule, which applies rather to the substance than to the forms of proceeding, is, undoubtedly, true in cases where the respondent states that, with the knowledge possessed by him, he can neither confess nor deny the charges contained in the bill; but entirely untrue wherever the statements in the answer can, by fair interpretation, be construed into an admission of, or acquiescence in, the allegation of material facts.
It is insisted that for an insufficiency in an answer, exception may be taken to it. This is true; and, for a like imperfection in the bill, the like remedy may be resorted to; the rule and the obligation operates equally on complainant and respondent; but it is certain that, with respect to the bill or the answer, the court would not sustain a captious exception, when the pleading disclosed or admitted the real grounds of contest in the cause. Thus much it has been deemed proper to state with reference to the rules of pleading, which even if they went to the exclusion of these copies, would not, on further examination of the case, materially affect the question on which they are intended to bear. For the answer explicitly admits the interest of the complainant, not merely in the lands patented to him, but in all the lands embraced within this controversy.
Leaving, then, this question, raised upon the pleading, we come back to those matters which enter essentially into the character of the proceedings impeached by the bill; and, on reviewing those proceedings, it might, perhaps, be considered pro hac vice, that mere inadequacy of consideration shall not per se amount to proof of fraud, although the concession, thus broadly stated, would scarcely be reconcilable with the qualification put by the courts, namely, unless such inadequacy be so gross as to shock the conscience, -- for this qualification amounts necessarily to an affirmation, that if the inadequacy were of a nature so gross as to shock the conscience, it would per se be evidence of fraud. In another instance the courts of equity have reprobated such gross inadequacy when standing solely and singly as the ground of objection, namely, in refusing for that objection alone to decree a specific performance of an oppressive and unconscientious contract; thus showing that they are not governed by mere legal or technical interpretation, but yield to a certain extent to the moral sense and feelings of mankind, and to that principle so strongly stated by Lord Camden: "that nothing can give life and activity to a court of equity, but honor, integrity, fairness; and that wherever these are wanting a court of equity cannot be incited to action, but neither listens, perceives, nor moves." Again, it is insisted that whatever presumption arising from inadequacy of consideration may be permitted as respects transactions strictly between vendor and vendee, no unfavorable influence from that cause is allowable, with respect to sales made under judicial process. In stating the position thus broadly, there seems to be overlooked the qualification uniformly put by the courts, namely, that such sales are to be fairly made. Certainly the fact that such sales are made under the authority of the law, and by the officers of the law, may justly weaken the presumption arising from great inadequacy; but to say that such inadequacy, connected with other facts or circumstances tending to evince fraud or unfairness, could never be regarded, would be about as rational as an assertion that the process of the law could not possibly be abused, and that the ministers of the law must necessarily be pure and upright. The true, the intrinsic character of proceedings, both in court of law, and in pais, are alike subject to the scrutiny of a court of equity, which will probe and sustain or annul them, according to their real character.
In approaching an inquiry into the conduct of the parties, and into the circumstances surrounding the transactions impeached by the bill, it is deemed proper by the court in limine to advert to certain positions advanced by the counsel for the respondent; to which, as urged by those counsel, this court cannot lend its sanction. Thus it has been insisted, that an attorney, as the representative of his client, has a right to control the judgment rendered in favor of that client, and in so doing frame, and to sue out what final process he pleases; to direct the sheriff both as to the kind and amount of the property to be levied upon; to prepare such advertisements of the property as in his judgment may be deemed effectual; and, at the sale of the property, so prepared by himself, to purchase the whole of that property at any sacrifice of it, however great. To the affirmance of such doctrines, or of any practice in pursuance thereof, this court can never lend its assent. An executor, or administrator, or a trustee, cannot purchase at his own sale. If by the levy either the legal or equitable title to the property levied upon is vested in the judgment creditor, or in his attorney for him, the one or the other becomes a trustee, and in any aspect is bound to perfect fairness; and, therefore, cannot take advantage of untoward circumstances, although they may be induced by his own irregularity, to force a sale to the ruin of the debtor, and for his own profit. If such control of judicial proceedings, and of the officers of the law, can be tolerated, the widest door to fraud and oppression would at once be thrown open, and the most unscrupulous adventurer would be the most successful.
With reference to the judgment at law, and the proceedings under it, it has been insisted that this judgment, having been rendered by a competent court, and still remaining unreversed, neither the validity of the judgment nor the proceedings in virtue thereof can now be questioned. True, with respect to the regularity of that judgment, or with any legal errors in obtaining it, this court does not pretend to take cognizance, or to exercise any appellate jurisdiction for its reversal; and, in any attempt at law to impeach such judgment, it must be regarded as operative. But with any fraudulent conduct of any of the parties, in attempting to avail themselves of that judgment, this court can regularly take cognizance. Such a proceeding is within the legitimate province of courts of equity, and constitutes a most comprehensive ground of their jurisdiction.
With reference to the acts of the respondent, in obtaining and enforcing the judgment at law, those acts have been by his counsel sought to be sustained, upon the ground, that as an attorney for Marsh, he had a right to control the judgment, and to carry it into effect. That right, in this respect, like every other right, is bounded by rules of law and justice, and by a proper regard to the rights and duties of others. So far as it was proper to enforce the legitimate rights of Marsh, it was unquestionably within the power of his attorney to control and direct them; but he could have no power according to what he may have fancied was legitimate, or what he may have thought judicious and promotive of the interest of his client or himself, to usurp the powers of those officers and functionaries to whom the laws have intrusted its just administration, and preservation of the rights of the citizen. The office of clerk or of sheriff, was never designed to be a mere name, or an engine, or a pretext, to be used at the will of any person. By what authority, then, could this respondent assume the functions of both clerk and sheriff? tax such costs as he deemed proper? seize upon property to any amount? advertise it himself, and ultimately become the purchaser? For, by converting the clerk and sheriff into mere ciphers, and becoming the really efficient actor in all their functions, he substituted himself entirely for these officers, in whom the law invested peculiar powers, and on whom it imposed peculiar responsibilities. By this assumption the respondent at once destroyed or evaded all those checks and securities designed for the protection of all. In justification or in excuse for this assumption, it has been contended in argument, (for the position is not sustained in proof,) that it was rendered necessary by the ignorance of those officers, to whom the duties of clerk and sheriff had been assigned, and had become a common practice among attorneys in the particular section of country where it occurred. If this position must be taken as true, it rather aggravates than extenuates the wrong here complained of, as it shows that by the ignorance or corruption of the officers of the law, the rights of the complainant had been handed over to the mercy of one having a direct interest to invade those rights; and evinces a practice in a profession deemed enlightened and honorable, highly calculated to bring that profession into merited disrepute.
Upon the question of illegality in the sale for want of notice, it has been contended in argument for the respondent that the bill contains no charge with respect to such illegality, and that therefore no proofs as to that point can be admitted. It is undeniably the rule in equity, as well as at law, that the proofs must correspond with the allegations, and that evidence inapplicable or irrelevant to the latter, will be disregarded as immaterial. The bill in this case is less minutely and searchingly drawn, than it might have been on this particular point, yet it is considered as being sufficiently comprehensive and sufficiently specific at the same time to cover this point and to justify proofs in relation thereto. It alleges, as illegal and unwarrantable, the taxing of the costs, the writing of the execution, the sale of the property by the party, the description of the property, and the advertisement or notice of sale by the respondent, and the proceedings under that notice, all as being unwarranted by law and concocted and carried out in fraud. All these allegations it was competent to the complainant to prove. The answer of Byers, after a general denial of fraud and unfairness, after admitting the taxing of the costs, the writing of the execution, the direction to the sheriff as to the lands to be levied upon, and the preparation of the notice of sale -- all by himself -- next insists upon the regularity and propriety of all these acts. He then proceeds to aver the performance of every prerequisite of the law as to such sales. These prerequisites he enumerates in detail, and introduces evidence to establish them. He says the sheriff advertised the lands, and advertised them for twenty days, in three most public places in each township; and he introduces the evidence of the sheriff and of other witnesses to prove these averments. But in contravention of these statements are first, the admission of the respondent that he himself prepared the notice, and not the sheriff; and as to the evidence of the sheriff introduced and relied on by the respondent, so far from showing that the requisites of the law were complied with, it establishes the fact that they were violated and disregarded, for the sheriff shows that he took the description of the property and the notice of sale prepared by the respondent, and did not act upon any description or statement prepared by himself; in the next place this answer declares that he never did set up advertisements either in number or locality, as he was bound to do, nor could he swear to the fact. He says it was his practice to set them up in places in which it was convenient for him to do so; and to hand over other notices to persons in whom he had confidence. Here, then, is proof supplied by the respondents, that the law had not been complied with. The acts of an official deputy are regular evidence as acts of his principal, binding on that principal and on all persons falling within the scope of his acts. But it is not perceived how the rights of suitors can be at all dependent upon the unofficial and private confidence of an officer, even when that confidence may not have been misplaced. In this case there is no proof that it has been fulfilled; for no person shows that the notices had in fact been given according to law. The belief of either the sheriff or any other person can have no influence where the law calls for full legal proof.
The objections here stated, cannot be deemed narrow or technical in a case like the present, -- a case admitted in the argument to be entitled to no favor either at law or in equity, -- a case which presents us one feature of liberality or equality, -- a case in which the respondent was and is bound to walk the hair line of legal strictness, and from which, if he trips or deviates never so small a space, he is doomed to fall.
The court has not deemed it proper to express an opinion upon the point raised as to the validity of sales under execution made curia non sedente. That is a point as to which there appears to be a considerable diversity, and as to which there is room for diversity of opinion. Not considering that point necessarily involved as a mere question of law in this case, and as it arises upon the statutes of this state, which have not yet been expounded by the local courts, it has been thought respectful to the latter to leave to them the interpretation of these statutes, on points not unavoidably in the path of this tribunal in the performance of its duty. In one aspect, however, the existence merely of the wide spread impression as to the time and place of making sales, may have a direct bearing on the present case, whether such impression was or was not warranted by the statutes, and that is as the knowledge of such an impression, and its effect upon bidding at sales may be an index to the quo animo, the intention and purposes of the respondent, and may point to him as the artificer or contriver of the entire train and machinery by which the interests of the complainant were sought to be and were in fact sacrificed.
Little weight has been given to the general statements of witnesses that property in the particular section of the state has, when sold under execution, commanded but a very small portion of its real value. The instances referred to are susceptible of explanation on two grounds, either of which would deprive them of influence in this cause. The sales thus mentioned might have been, and until the converse is shown, must be presumed to have been unaccompanied by any circumstances which could affect their validity; or they may have been acquiesced in from inability or indisposition of the victims in those sales to subject them to the test of judicial scrutiny. It may well be presumed that a majority of sufferers by such sacrifices would be persons possessed of slender means of resistance, or they would have brought to light any facts or circumstances, if such really had existed, rather than have submitted to oppression and ruin. And here it must be remarked, as a striking and ominous feature in this cause, that amongst the numerous witnesses examined to establish the difference between the value of property and the proceeds of sales under execution; that to the oft repeated, and as it were, stereotyped interrogatory put to them, nothing is said about the quality of the lands so sacrificed, or about the clearness or defectiveness of the titles, and not one word about the situation or value of the lands embraced in this controversy. By evidence taken on the part of the complainant, it is stated that they were worth from one to five dollars, or from two to three dollars per acre, and, taking a mean valuation between these, giving the estimate of three dollars per acre, the lands at the time of the sale were worth not less than forty thousand dollars, and were purchased by the person who originated and controlled the whole transaction for nine dollars and thirteen cents! An inadequacy so enormous as this, if not when regarded singly, yet when taken in connection with the attendant circumstances, with the agency of the defendant in the transaction, can be declared with sincerity to have shocked the conscience and every sense of right entertained by this court, and caused this transaction to be viewed as a proceeding which cannot be countenanced, without the subversion of every rule of legal or moral equity; caused it to be regarded as tainted with fraud from its inception to its consummation; calls upon this court to declare, as it does declare, the sale and conveyance of the property now claimed by the bill as fraudulent and void, and to decree, as it does hereby decree, that the respondent, by proper assurances, release to the complainant all right, title, interest, and property held or claimed by them in and to the lands purported to be conveyed to them by the deed from the sheriff, referred to in the proceedings in this cause. Decreed accordingly.
"U.S. Supreme Court Reports : Cases argued and decided in the Supreme Court of the United States" Vol.15 Lawyers Edition, by Stephen K. Williams, 1882; includes Vol.60 U.S. Reports, Dec. 1856; also reported in Vol.19 Howard and Vol.1 Miller's Decisions; pages 670-674 in Vol.15 Lawyer's Edition; pages 303-312 in Vol.60 U.S. Reports (El Dorado Co. CA Law Library 12/2003)
WILLIAM BYERS, Appellant, v. FRANCIS SURGET; Supreme Court of the United States; 60 U.S. 303; 15 L. Ed. 670; 19 HOW 303; March 5, 1857, Decided; December 1856 Term.
This was an appeal from the Circuit Court of the United States for the eastern district of Arkansas, sitting in equity. It was a bill filed by Surget, a citizen of Mississippi, to set aside a sale made under the circumstances, which are fully stated in the opinion of the court. The Circuit Court decreed that the purchase of the lands by Byers was fraudulent and void, and ordered the sale to be set aside. Byers appealed to this court.
(opinion) The appellee, Francis Surget, a citizen of the State of Mississippi, instituted his suit in equity in the Circuit Court of the United States for the eastern district of Arkansas, against the appellant, the object of which suit was to annul as fraudulent and void a sale of lands belonging to the appellee, made by the sheriff of Jackson, in Arkansas, on the 18th of May, 1846. These lands, situated in the county and State above mentioned, are described in the pleadings according to the public surveys, amounting to more than fourteen thousand acres, and estimated in value at from forty or seventy thousand dollars, and were sold by the sheriff in satisfaction of a claim for $39, and conveyed to the appellant for the sum of nine dollars thirteen and one-half cents.
The Circuit Court having pronounced the sale and conveyance fraudulent and void, and decreed a surrender and reconveyance of the lands by the appellant to the appellee, the former party has appealed from that decree to this court.
The facts of this cause, as collated from the pleadings, and as established by the proofs, are substantially as follows:
The appellee, during the year 1835, separately, and in his individual right, entered and purchased of the Government of the United States, at their land office at Batesville, in the State of Arkansas, a number of tracts or parcels of land, situated in the county of Jackson, in the State aforesaid, all of which are known and designated on the plats of the public surveys, and are enumerated and set forth in the bill. In the same year, (1835,) about the 10th of November, the appellee, together with John Ker, Stephen Duncan, and William B. Duncan, formed a partnership under the name and style of Willaim B. Duncan & Co., and, in the name and behalf of that firm, entered and purchased of the United States, at their land office at Batesville, various other tracts, lots, and parcels of land, lying in the same county and State, known and designated on the plats of the public surveys, and described and set out in the bill. Sometime in the year 1836, the partnership of William B. Duncan & Co. was, by mutual consent, dissolved; and the property, real and personal, belonging to the firm, including the purchases and entries of land made by them, was by like consent divided, and the portion of each partner allotted to him, and by him held in se curity. The portions assigned and allotted, under this distribution, to Stephen Duncan and William B. Duncan, as members of the partnership of William B. Duncan & Co., are particularly set out and described in the bill. Subsequently to the dissolution of the partnership of William B. Duncan & Co., and to the transfer to each partner of his respective rights and interest therein, Stephen Duncan and William B. Duncan, by deeds bearing date, the one on the 29th of December, 1836, and the other on the 23d of March, 1837, sold and conveyed to the appellee in fee simple, together with sundry other tracts and parcels of land, the lands, lots, and parcels, before mentioned as having been transferred and assigned to said Stephen and William B., as members of the firm of William B. Duncan & Co., all of which lots and parcels of land, so conveyed to the appellee by Stephen and William B. Duncan, as well as the portion thereof belonging to the appellee, as a member of the firm of William B. Duncan & Co., and the several lots and parcels of land originally and separately entered and purchased by the appellee in his own right, were included in the levy and sale impeached by the bill.
In the year 1840, four years after the dissolution of the firm of William B. Duncan & Co., an action was instituted in the name of that firm, by William B. Duncan, in the Circuit Court of Jackson county, in the State of Arkansas, against one Noadiah Marsh, for a breach of covenant; and in that suit, under the plea of a subsequent discharge in bankruptcy, the court gave judgment in favor of the defendant for costs of suit.
The bill charges that this suit instituted against Marsh was posterior in time to the dissolution of the partnership, and was commenced and prosecuted without the authority or knowledge of the other members of the recent partnership, who all resided beyond the limits of the State of Arkansas; and further avers, that the first knowledge of the existence of the suit on the part of the appellee was imparted to him by a communication informing him of the sale of his land. This allegation in the bill with respect to the period at which the suit against Marsh was instituted, and with respect also to the person by whom instituted, and the ignorance on the part of the appellee of the institution of that suit, is fully sustained by the deposition of William B. Duncan, and by the facts that the deeds from the other partners to the appellee, executed after the dissolution, bear date in the years 1836 and 1837; the action at law against Marsh not having been commenced until 1840, September 5th.
But should it be conceded that the partnership was in full existence at the time of the institution of the suit against Marsh, and that the suit had been ordered or sanctioned by the firm, yet a judgment for costs against them, upon a ground which controverted neither the justice nor the legality of their claim, presents an anomaly in judicial proceedings, as irreconcilable with reason as it is believed to be without precedent.
Upon this extraordinary judgment, the appellant, as the attorney for the defendant in the inferior court, assumed to himself the poser to tax the costs adjudged to the defendant; to tax them not in the capacity of clerk, the agent created by law for the performance of that service, nor in that of the legal deputy or subordinate of that officer, but, as it has been asserted, as a sort of amicus clerici, and with equal benevolence, or in order to remedy the ignorance and imbecility which, by way of justification of the appellant's acts, it is attempted to be shown, characterized the ministers of the law in that unfortunate locality, assumed to himself the power and the right not only of selecting the final process, but of prescribing also the description and the quantity of the property which he chose to have seized in satisfaction of that process; of furnishing a list of the parcels and amount which he chose to have thus seized; of ordering the sheriff to levy upon the whole of what he had so described; of preparing himself and furnishing to the officer such advertisements for the sale of the property levied upon as he approved; of requiring of the sheriff, under peril of responsibility for refusal, towards the satisfaction of an execution for thirty-nine dollars and ten cents, peremptorily to make sale of more than fourteen thousand acres of land, estimated by the witnesses from forty to seventy thousand dollars; and finally, under a proceeding irregular in its origin, commenced by himself, and by him controlled and managed to its consummation, of becoming the purchaser of the property estimated as above, for the sum of nine dollars thirteen and one-half cents.
Such is the history of a transaction which the appellant asks of this court of sanction; and it seems pertinent here to inquire, under what system of civil polity, under what code of law or ethics, a transaction like that disclosed by the record in this case can be excused, or even palliated? To the appellant must necessarily be imputed full knowledge of this transaction; he was the attorney for the defendant in the State court; he is shown to have been not only the adviser, but virtually the executor, of every step taken for the enforcement of the judgment of that court; and, as a lawyer, it is reasonable to presume that he must have comprehended the nature and effects of the measures adopted by him and at his instance. The bill impeaches these measures as being contrived by the appellant for purposes of fraud and oppression, as is betrayed --
1. By the anomalous character of the judgment procured by the appellant, without notice or knowledge on the part of the appellee.
2. By the fact, that the process sued out upon the judgment at law was not made out by the only officer legally authorized for that purpose, but was calculated, and drawn up, and determined, and written out, by the appellant himself, and by his authority and direction delivered to the sheriff, who was ordered by this same party on what particular property and to what amount to levy the execution.
3. By the facts, that whatever notices or advertisements may have been given or prepared previously to the sale of the lands levied upon, were prepared not by the sheriff, but by the appellant; and that such as were prepared by him were not published by the sheriff in the mode prescribed by the law, previously to the sale of lands under execution.
4. By the wanton excessiveness of the levy insisted on by the appellant; this being an abuse of the process of the court, and evidence of a fraudulent design, with a view to incite suspicion, and to deter purchasers by reason of that suspicion, and by offering larger portions of property than many persons would be willing or able to purchase.
5. By the peremptory demand upon the sheriff, and in opposition to the remonstrances of this officer, and under threats, in the event of his refusal, to force a sale of this large amount of property, under circumstances calculated to insure its ruinous sacrifice.
6. The gross inadequacy of consideration given by the appellant for this large property, an effect produced by his own fraudulent contrivances.
The ground upon which the defendant below, the appellant here, has rested his case, may in substance be reduced to the two following positions:
1. The strength of his legal title acquired under the execution and sale, and under the conveyance from the sheriff, which execution, sale, and conveyance, he alleges were fair, and not fraudulent; and
2. That sacrifices of land in the section of the State in which this sale occurred, similar to that complained of, were usual in sales under execution.
With respect to the effect of the judgment at law, and of the proceedings taken for its enforcement, it is insisted, in the answer of the appellant, that this judgment having been rendered by a court of competent authority, and still remaining unreversed, neither the validity of that judgment nor the proceedings in virtue thereof can now be questioned.
It is true, that with respect to the regularity of that judgment, or of any legal errors in obtaining it, this court or the Circuit Court could not take cognizance, nor exercise any appellate power for its reversal; and in any collateral attempt at law to impeach that judgment, it must be regarded as binding and operative. But with any fraudulent conduct of parties in obtaining a judgment, or in attempting to avail themselves thereof, this court can regularly, as could the Circuit Court, take cognizance. Such a proceeding is within the legitimate province of courts of equity, and constitutes an extensive ground of their jurisdiction. The true and intrinsic character of proceedings, as well in courts of law as in pais, is alike subject to the scrutiny of a court of equity, which will probe, and either sustain or annul them, according to their real character, and as the ends of justice may require.
With reference to the conduct of the appellant, in procuring and enforcing the judgment at law, that conduct has been, by the answer of the appellant and by the argument of his counsel, sought to be sustained, upon the ground that, as attorney for Marsh, the appellant had the power and the right to control the judgment, and to carry it into effect. The power and right thus claimed for the appellant, like every other right and power, are bounded by rules of law and justice, and by consistency with the rights of others. So far as it was necessary to maintain and enforce the legitimate interests of Marsh, it was unquestionably within the competency of his attorney to interpose; but he could not, in pursuance of whatever he may have fancied legitimate, or of whatever he may have deemed judicious or promotive of advantage to his client or himself, usurp the authority and functions of officers on whom the law had devolved its just administration, and by that the preservation of the rights of the citizen.
The offices of clerk and sheriff were never designed to be mere names, nor to be engines and pretexts, to be used at the will of any one. By what authority, then, could the appellant assume the functions of both clerk and sheriff; tax such costs as he deemed proper; order the seizure of property to an amount entirely arbitrary, as his cupidity or indiscretion might incline him, and command peremptorily the sale of the whole subject thus illegally and rapaciously seized upon, without the slightest reference to the value of the subject, in comparison with the demand to be satisfied, and then to become himself the possessor of the subject thus sacrificed by his own irregular and oppressive conduct, for a pretended consideration so trivial that it may be considered as nominal merely?
In justification or in excuse for this assumption, it has been alleged and relied on by the appellant, (though the position is entirely unsustained by proof,) that it was rendered necessary by the ignorance of those officers to whom the duties of clerk and sheriff had been assigned by law; and had become a common practice in the particular part of the country where this proceeding occurred. If the position thus taken be true in fact, it rather aggravates than extenuates the wrong complained of, as it shows that, by the ignorance or the corruption of those officers of the law, the rights of the complainant had been surrendered to the mercy of one having a direct interest to invade those rights. It evinces, moreover, if true, a practice, in a profession heretofore deemed enlightened and honorable, highly calculated to bring that profession into merited disrepute.
Upon the question of the illegality in the sale for want of notice by advertisement, it has been insisted by the appellant that the bill contains no charge with respect to such illegality, and that therefore no proofs as to that point can be admitted.
It is undoubtedly the rule in equity, as well as at law, that the proofs must correspond with the allegations, and that evidence irrelevant or inapplicable to the latter will be regarded as immaterial. The bill in this case is less searchingly and minutely framed than it might have been on this particular point, yet it is considered as being sufficiently comprehensive, and as sufficiently specific at the same time, to embrace this point, and to justify proofs in relation thereto.
It alleges as illegal and unwarrantable the taxing of the costs, the writing of the execution, the writing of the list and description of the lands required to be levied on, and the notices of sale by the appellant; the manner of publishing or putting those notices and the proceedings under them at the sale -- all as being unwarranted by law, and as having been concocted and carried out in fraud; all these allegations it was competent to the appellee to prove. The answer of the appellant -- after a general denial of fraud and unfairness, and after admitting the taxing of the costs, the writing of the execution, the description of the land to be levied upon, the directions of the sheriff, and the preparation of the advertisements, all by himself -- next insists upon the regularity and propriety of all these acts. He then proceeds to aver the performance of every prerequisite of the law with respect to such sales. After enumerating these prerequisites in detail, he endeavors to establish them by evidence. He says that the sheriff advertised the lands for twenty days in three of the most public places in each township of the county, in conformity with the statute; and he introduces the evidence of the sheriff and of other witnesses to maintain these averments.
But in contravention of these statements are, first, the admission of the appellant that he himself, and not the sheriff, prepared the notices of sale; and, secondly, the evidence of the sheriff introduced and relied on by the appellant, so far from showing a compliance with the requisites of the law, establishes the fact that these were violated and disregarded; for the sheriff declares that he took the list and the description of the property, and the notices prepared by the appellant; and this officer admits that he did not put up advertisements, either in number or locality, as required by law, nor could he swear to such a proceeding by him. He says it was his practice to set up advertisements in places in which it was convenient for him to do so, and to hand over other notices to persons in whom he had confidence.
Here, then, is proof, supplied by the appellant, that the law had not been complied with. The acts of an official deputy are evidence of the acts of his principal, and are binding on all who fall within the legal scope of those acts. But it is not perceived how the rights of suitors can be at all dependent upon the unofficial and individual confidence of one officer, even when that confidence may not have been misplaced. In this case, there is no proof that it has been fulfilled; for no person shows that the notices had been in fact put up and published according to the statute. The mere belief, either of the sheriff or any other person, can have no operation where the law calls for full legal proof.
The objections here stated cannot be deemed narrow or technical with reference to a case like the present -- a case presenting no claim to favor either in law or in equity; a case in which the respondent was and is bound to pursue the hair line of legal and formal strictness, and from which, if he deviate in never so small a degree, he is doomed to fall. The conduct of the defendant, in all that he has done himself, and in all that he has exacted of others, is essentially important in this case as evidence of the quo animo with which this transaction was begun, prosecuted, and consummated. Another pregnant proof of the design of the appellant to grasp and to retain what no principle of liberality or equity could warrant, is the fact, clearly established, of his refusal after the sale to accept from the appellee, for the redemption of his lands so glaringly sacrificed, a sum of money considerably. exceeding in amount the judgment for costs, with all the expenses incidental to the carrying that judgment into effect. The appellant, by his irregular and unconscientious contrivances, achieved what he conceived to be an immense speculation; and he determined to avail himself of it, regardless of its injustice and ruinous consequences to the appellee.
To meet the objection made to the sale in this case, founded on the inadequacy of the price at which the land was sold, it is insisted that inadequacy of consideration, singly, cannot amount to proof of fraud. This position, however, is scarcely reconcilable with the qualification annexed to it by the courts; namely, unless such inadequacy be so gross as to shock the conscience; for this qualification implies necessarily the affirmation, that if the inadequacy be of a nature so gross as to shock the conscience, it will amount to proof of fraud. Again, in answer to the same objection, it is insisted, that whatever presumption arising from inadequacy of consideration may be permitted with respect to transactions strictly limited to vendor and vendee, no unfavorable inference from that cause is permissible with respect to sales made under judicial process. Certainly the facts that sales are made by the officers or ministers of the law, and under its authority, may properly weaken the usual presumption arising from gross inadequacy; but to declare that such inadequacy, connected with other facts and circumstances evincing fraud or unfairness, could never be regarded as affecting sales under process, would be as rational as the assertion that process of law could never be abused, and that the ministers of the law must necessarily be intelligent and upright, and incapable of being ever willingly or unwittingly made the instruments of fraud or oppression. But the transaction now under review can with no show of propriety be tested by the single fact of inadequacy of consideration, however gross and extraordinary that inadequacy has been. We perceive in this transaction other ingredients that have been mingled therewith by the appellant, that give to the objection of inadequacy an effect that, standing isolated and alone, could not be ascribed to or deduced from it.
Thus, when we advert to the irregular and extraordinary character of the judgment procured through the agency of the appellant -- to his eagerness, that could not await the action of the officer of the court -- his assumption of the functions of the clerk, in taxing the costs, and in writing out the execution -- his preparation and delivery to the sheriff of a description and list of the lands of the appellee, amounting to more than fourteen thousand acres -- his requisition of a seizure of the whole of those lands in satisfaction of the sum of thirty-nine dollars -- his inflexible demand upon the sheriff, under threats of prosecution, to expose to sale the entire levy -- his purchase of all these lands for the sum of nine dollars and thirteen and a half cents -- and his refusal after the sale and purchase to accept, in redemption of these lands so sacrificed, a sum of money tendered to him much more than equal to the costs, with all the expenses incident to the judgment: when all these acts on the part of the appellant are adverted to, they impel irresistibly to the conclusion, that the gross inadequacy of consideration in the sale and purchase of these lands was the premeditated result which the proceedings by the appellant were put in practice to insure. They betray that malus dolus in which the design of the appellant was conceived, which appears to have presided over and regulated the progress of the design from its birth to its consummation; to which design the appellant has tenaciously clung, in the seeming expectation that it was beyond the corrective powers of law or justice.
Upon the whole case, we are constrained to view the entire transaction impeached by the appellee as one that cannot be sustained without the subversion of the principles and rules either of legal or moral justice. We accordingly approve the decision of the Circuit Court in so regarding it, and order that decree of be affirmed.
MAD: See also, in Monroe Co. Arkansas, the case of DUNCAN et al. v. BISCOE et al, Trustees R. E. BANK; Supreme Court of Arkansas; 7 Ark. 175; January, 1846, Decided; from "Reports of cases at law and equity argued and determined in the Supreme Court of Arkansas; January and July term 1846 and January term 1847" ("Arkansas Reports") Vol.7, by E.H. English, pgs.175 to 194 (California State Law Library, Sacramento, 12/2003)
MAD: See also, in Monroe and Pulaski Co. Arkansas, the case of PEAY, Receiver, Etc., v. DUNCAN et al; in which the original complainants were Henry L. Biscoe, Sandford C. Faulkner, and others, residuary trustees of the Real Estate Bank for which Gordon N. Peay became receiver and substituted complainant, and the defendants were William B. Duncan, Francis Surget, John Ker, Alfred Mullins, William McBride and John Smith; Supreme Court of Arkansas; 20 Ark. 85; January, 1859, Decided; from "Reports of cases at law and equity argued and determined in the Supreme Court of Arkansas; January, May and October terms 1859" ("Arkansas Reports") Vol.20, by L.E. Barber, pgs.85 to 92 (California State Law Library, Sacramento, 12/2003)
MAD: See also, in New Orleans, Louisiana, and Adams Co. Mississippi, the case of DUNCAN LINTON, CHARLOTTE LINTON and her husband, FRANCIS SURGETTE, STEPHEN DUNCAN guardian of MARY LINTON and JOHN LINTON MINORS, Plaintiffs in error, v. FREDERICK STANTON; Supreme Court of the United States; 53 U.S. 423; 13 L. Ed. 1050; 12 HOW 423; March 1, 1852, Decided December 1851 Term; from "Reports of Cases Argued and Decided in The Supreme Court of the United States" Book XIII (13 L Ed. pgs.1050 to 1051), by Stephen K. Williams, Containing Howard Vol.9, 10, 11, and 12; (12 How pgs.423 to 426) (El Dorado Co. CA Law Library 12/2003)
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)
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, Francis M., widow Duncan, Mary A.; K 112 Ill Inf.; 1886 April 12, Invalid Appl. #569562, Cert. #417357; 1891 Feb. 18, Widow Appl. #498877, Cert. #585780, S.D. (MAD: mar. Mary Alice Grey 12/1861 in Henry Co. IL; ?? 1870 Jackson Co. AR ??; James Duncan & wife Mary in 1880 Henry Co. IL census; she ?? 1900 Davison Co. SD, son Burdett J. b.1876 IL)
Phillips Co. AR Deed (FHL film 1,018,960)
E-54: 23 March 1837, Stephen Duncan and wife Catherine A. Duncan to Frances Surget, all Adams Co. MS, for $1, described in cert. of purchase in favor of William B. Duncan & Co. of Natchez, MS, land in Twp. 8N Range 3W, S 1/2 Sec. 9, 320 acres, Cert. #1094 dated 10 Nov. 1835; S. 1/2 Sec. 10, 320 acres, Cert. #1095 dated 10 Nov. 1835; whole Sec. 15, 640 acres, Cert. #1100, dated as date of last; whole Sec. 17, 640 acres, Cert. #1101, dated as date of last; whole Sec. 22, 640 acres, Cert. #1106 (no date); land in Twp. 7N Range 3W: S 1/2 Sec. 17, 320 acres, Cert. #1117; S 1/2 Sec. 18, 320 acres, Cert. 1119; E 1/2 Sec. 19, 320 acres, Cert. #1120 like date; SW frac. 1/4 Sec. 19, 162.37 acres, Cert. 1121; Whole of Secs. 20, 24, 36, 640 acres ea, Certs. #1122, 1123, 1128; S 1/2 Sec. 13, 320 acres, Cert. #1129; and land in S. 1/2 Sec. 8, Twp. 8N, Range 3W, 320 acres, Cert. #1193, like date; certificates of purchase recorded Helena, AR, MS Dist., each dated Nov. 17, 1835; also more certificates and land not copied; being the same land mentioned in a certificate of sale from Wm. B. Duncan to said Stephen Duncan 3 March 1836 filed in Jackson Co. AR. Stephen and Catharine A. Duncan appeared in Adams Co. MS 4 March 1837.
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