Duncan research files of
"Reports of cases argued and determined in the Supreme Court of the State of Illinois" ("Illinois Reports" [Vol.] 5 Scammon) by J. Young Scammon, Vol.5, pg.561 to 569 (California State Law Library, Sacramento, 12/2003)
JOSEPH DUNCAN et al. plaintiffs in error v. GEORGE A. CHARLES defendant in error; Supreme Court of Illinois, at Springfield; 5 Ill. 560 ; 4 Scam. 560; December, 1843, Decided.
Error to Henderson. THE decision in this cause, in the court below, was made at the October term, 1842, by the Hon. STEPHEN A. DOUGLASS. Judgment was rendered for the defendant, and the plaintiffs brought the cause to this court by writ of error. (MAD: counsel's arguments are omitted here)
SHIELDS, Justice, delivered the opinion of the court: Joseph Duncan, Stephen S. Phelps, and Alexis Phelps brought an action of debt in the Henderson circuit court, against George A. Charles. The declaration contained three counts, rounded on three sealed notes. The writing obligatory set forth in the first count was as follows: "One year after date, I promise to Pay Joseph Duncan, S. S. Phelps, and Alexis Phelps, or either of them, or order, one hundred and thirty-eight dollars 75-100 cents, together with six per cent. per annum interest from date; and in case of a failure to pay the note when due, I promise to pay twelve per cent. interest per annum on it from date, value rec'd in lot No. 8, in block No. 24, in the town of Oquawka. July 20th, 1836." This note was signed and sealed by the defendant. The note set forth in the second is, in all respects, the same as to date, amount, etc., except that it is payable in two years after date; and the one upon which the third count is rounded is exactly similar, except in being payable in three years after date. To this declaration the defendant pleaded several pleas, amounting in all to eleven in number. An issue of fact was joined on the first plea, and issues of law on the others. The court overruled the demurrer as to the second, third, fourth, fifth, and sixth pleas, and sustained it as to the seventh, eighth, ninth, tenth, and eleventh pleas; and the plaintiffs choosing to stand by their demurrer, judgment for costs was given against them below. To reverse this judgment the plaintiffs prosecute their writ of error, and assign for error the decision of the court in overruling the demurrer to the second, third, fourth, fifth, and sixth pleas.
The second plea, which is a plea of total failure of consideration, avers that the sealed notes in the plaintiff's declaration mentioned were executed as part of the consideration for the execution of a certain penal bond by the plaintiffs to the said defendant. in the penalty of $1110, bearing even date with the said sealed notes, and subject to the following condition: "Whereas the said George A. Charles purchased of the said Duncan and Phelps, lot No. 8, in block No. 24, in the town of Oquawka, in the said county of Warren, for the sum of $555, one fourth part of which has been paid, and the said George A. Charles having executed to the said Duncan and Phelps, his notes for the payment of the remainder in three equal annual payments, the said Duncan and Phelps are therefore bound, in the aforesaid sum of $1110, to execute or cause to be executed to the said George A. Charles, a good and sufficient warranty deed to the said lot, upon the payment of the full amount of said notes and interest; but in case of failure in the payments, or any of them, the said George A. Charles forfeits all claim right and title to the said lot, and also all money that he may have paid in." The plea further avers a failure on the part of the plaintiffs, either to deliver or tender a good and sufficient warranty deed to the defendant, either at the time the said notes became due, to wit, July 20th, 1839, or since, and therein avers a failure of consideration.
The third plea only differs from the second, in averring that at the time appointed for the full payment of the money, the said plaintiffs neglected to tender or deliver a deed to the defendant.
The fourth plea only differs from the second in averring a failure in the payments of the said notes, whereby all claim to the lot was forfeited, and also to the money paid in, and a failure on the part of the plaintiffs to deliver or tender a deed, whereby the contract became rescinded.
The fifth plea avers a failure to execute, or cause to be executed, a good and sufficient warranty deed at the time the payments became due. And,
The sixth plea is also a plea of total failure of consideration, and differs from the others in averring that neither at the time the said writings obligatory were executed, nor at any time before the same became due and payable, did the said plaintiffs have a good title to the said lot. These pleas go to the whole declaration.
First. Are the notes and title bond in this case to be considered as one contract? They were made between the same parties at the same time, and relative to the same subject matter. The whole constituted but one single contract.
The same point has been decided by this court, in the case of Bailey v. Cromwell et al. 3 Scam. 72. It is there laid down that a note and agreement made at the same time must be taken together as forming one entire contract; so in the case of Jackson v. McKinney, 3 Wend. 234, the court says, "It has been repeatedly held that when two instruments are executed at the same time, between the same parties, and relating to the same subject matter, they are to be construed together, and considered as forming but one contract." This point is therefore to be regarded now as settled. The next which arises in considering the sufficiency of these pleas is this: are the plaintiffs entitled to recover in this action without having first conveyed or offered to convey the lot mentioned in the agreement to the defendant? The answer to this question depends upon the character of the contract, and whether the stipulations of the parties are dependent or independent, or whether some are dependent and some independent. The note set forth in the first count became due and payable on the 20th day of July, 1837; that set forth in the second count became payable on the 20th day of July, 1838; and that set forth in the third count, on the 20th day of July, 1839. A right of action accrued on each of these notes when the same became due, and the plaintiffs were not required by the agreement, to make a deed, until payment of the whole amount. The obligation, therefore, to pay the two first notes was independent of any act to be performed previous to, or at that time, by the plaintiffs. It is contended, however, that though the obligation of the defendant to pay the two first notes was to be considered an independent covenant in the first instance, yet by neglecting to enforce payment of the notes when they became due, and by waiting until the time of performance on the part of the plaintiffs had elapsed, their covenants, once absolute and independent, became mutual and dependent; and to recover upon any of them, the plaintiffs must have conveyed, or tendered a conveyance to the defendant, previous to the commencement of this action. The rule universally adopted in the construction of contracts is the intention of parties at the time, as collected from the language of the contract. By this rule we determine whether the stipulations in a contract are dependent or independent; but there is no rule which can regard covenants as one day independent and the next dependent. (MAD: part of opinion not included here)
The obligation of the defendant to pay the two first notes was absolute and independent, and a cause of action accrued upon each note as soon as it became payable, and a cause of action having once accrued upon the note, by force and virtue of the contract, there is nothing to be found in the contract itself to defeat the right of action afterwards. The whole contract taken and construed together contained both independent and dependent stipulations. (MAD: more not included here)
It is said the demurrer goes back to the declaration, and that it is defective in not showing that all the plaintiffs were, at the time of bringing the action, residents of Henderson county, as the defendant was a resident of a different county. After the defendant appeared and pleaded, it was too late to make this objection. The court erred in overruling the demurrer to the second, third, fourth, fifth and sixth pleas. The judgment below is therefore reversed, at the costs of the appellee, and a repleader ordered.
Return to the Henderson Co. IL Research File
1882 "History of Mercer and Henderson counties [Illinois] : together with biographical matter, statistics, etc. gathered from matter furnished by the Mercer and Henderson County historical societies, interviews with old settlers, county, township and other records, and extracts from files of papers, pamphlets, and such other sources as have been available" pub. by H.H. Hill and Co. (FHL film 924,492 item 1 and 1,000,507 item 2)
Pg.233: Millersburg Twp. Edward Griffith, b. Nov. 13, 1834, Hancock Co. IN, oldest child; to Mercer Co. 1839 with parents Charles & Martha (Scott) Griffith; married March 24, 1859, to Miss Elizabeth Church, b. 25 March 1838, dau. of Thomas & Rachel Church. (MAD: Joel Duncan mar. 2nd Patience Griffith)
Pg.454-5: Oak Grove Township: JONATHAN DUNCAN (deceased) was born near Baltimore, MD, November 19, 1791, and was a son of Andrew and Ann (Smith) Duncan. He received a liberal education for his time, supplemented by healthy toil of the farm. He thus became vigorous in both mind and body. He became a carpenter by trade, and was the builder of the large hotel of fifty rooms at Mineral Springs, Pennsylvania. He also became extensively engaged in the wool business. He was at one time a large stockholder in a number of stage lines in Pennsylvania, owning a large farm where he fed his horses for the line. It was in 1815 when he moved to Washington Co. PA. He is familiarly known as Col. Duncan, having enlisted in the war of 1812, as lieutenant, and later, being promoted colonel. Very many of the colonel's best years were actively spent in Pennsylvania. There he lived till the year 1854. He had made a trip to Illinois in 1853, purchasing 260 acres in sections 26 and 27, Ohio Grove township, Mercer Co. IL. In 1854 he moved his family via the river to Keithsburg and thence to his farm. Here he lived till 1874. He improved his farm and became a factor in the county's progress. He was on intimite terms with the lamented Judge William M. Hayes, and made many friends by his good nature and industry. In politics he was always democratic, but sought no political emolument. In religion he was of the United Presbyterian faith. He aided in building Sunbeam church. Mr. Duncan moved to Monmouth in 1874, to live in retirement. On September 10, 1876, while visiting his son, Dr. J.K. Duncan, at Des Moines, Iowa, death claimed him. He was buried at Monmouth, Illinois.
Mr. Duncan was first married to Miss Letha Swearengen. She died, leaving four children. He was next married June 29, 1835, to Miss Agnes Leeper, daughter of Robert and Nancy Leeper, both of whom were born in York county, and died in Washington Co. PA. Mrs. Duncan was born in Washington Co. PA, June 10, 1815. She now resides with her son in Mercer county.
Mr. Duncan's first family are:
William Duncan, of Mercer county;
Thomas, of Des Moines, Iowa;
Sarah, now Mrs. William McCanless, of Crescent, Iowa. Mr. McCanless was a prominent man of Mercer county, having owned the land on which Aledo is built; also, laid out the town. He was lieutenant in company A, 84th Ill. Vol., and was killed at the battle of Chattanooga.
Dr. Bazil Duncan was army surgeon one year. He is now dead.
In the second family are:
Robert, who served in the civil war in company F, 17th Ill. Vol., and was promoted second lieutenant;
Dr. J.K. Duncan, who was in the naval service; he was captain of a gun on the gunboat "Fort Hyman;" seizing an enemy's hot shell, thrown on board and endangering the lives of his men, he threw it into the river, suffering his hands and arms to be severely burned by the operation. For this feat he was promoted captain of the gun-boat. He took sick and was sent to Pensacola hospital, Florida. Being there at the time of the yellow fever scourge, and having studied medicine, he was retained as surgeon and physician three years, on a salary of $2,000. He is now of Nebraska.
The other children are: Isophena, James, Andrew (dead), Nettie, Arnett, Charles, Frank and Ida.
Arnett was born in Washington Co. PA, January 28, 1850. He was married to Carrie, daughter of J.B. Gilmore. She was born near Oxford, Ohio. Arnett now owns 100 acres of the old homestead; also 160 acres besides, well improved.
1882 "History of Mercer and Henderson counties [Illinois] : together with biographical matter, statistics, etc. gathered from matter furnished by the Mercer and Henderson County historical societies, interviews with old settlers, county, township and other records, and extracts from files of papers, pamphlets, and such other sources as have been available" pub. by H.H. Hill and Co. (FHL film 924,492 item 1 and 1,000,507 item 2; from James A. Chard to Vivian Biddle to MAD)
(MAD: written on front page of the book owned by James A. Chard: "Presented to M. D. Chard By William J. Chard, April 3, 1883, Capay, California")
Pg.1187: Walnut Grove Township: MR. WILLIAM J. CHARD, son of William and Mary Chard, of Upper Sandusky, Ohio, emigrated from Scioto County, that state, to Warren Co. IL, in 1845; but after a residence of one year there came to Walnut Grove township, Henderson County, and settled near where Mr. Chard now resides. Cast upon his own resources and compelled to make a choice of an occupation, the independent life of a farmer was chosen by Mr. Chard. Beginning life with nothing, he has now about him all the comforts of life, having for many years given his attention to stock raising and farming. On November 30th, 1854, he was married to Miss Louisa Jane Duncan, daughter of Charles Duncan, of McDonough Co. IL. Of this marriage there are seven children, the eldest of whom, Calvin D. died when but two years of age. All the rest, Alfred M., Louella J., Ola E., Charlie D., Dennis A., and Harry L., are at home with their parents. In 1878, after a tour through the west to Walla Walla, Washington Territory, where he is planning to remove soon, Mr. Chard returned to his home, where he has exceeding happiness in his home relations of his six interesting children.
Pg.1188: The subject of this sketch, RICHARD H. CORRELL, farmer, of Walnut Grove township, was born December 18, 1847, near Lancaster, Hancock Co. IL. His father was a native of the State of Tennessee, where he was born in 1823, and when yet a child his parents removed to Hancock Co. IL, where their eldest son, Richard H., was born. ... Mr. Correll's father's name was Jacob Addison Correll, and his children are: Richard H., Mary Elizabeth (wife of William Duncan), Cincinnattus, and Alice (wife of Daniel Galbraith). Our subject now resides on the old homestead of 180 acres, ....
1885 "History of McDonough County, Illinois : together with sketches of the towns, villages and townships, educational, civil, military and political history; portraits of prominent individuals, and biographies of the representative citizens; and History of Illinois ..." pub. by Continental Historical Co. (FHL book 977.342 H2h and film 1,000,503 item 2)
Pg.888: Blandinsville Township: The notion trade has a representative in C.M. Duncan. Causby M. Duncan was born in White Co. TN, October 6, 1824. He was reared to agricultural pursuits, attending the district school as he had opportunity. He resided with his parents till he reached the age of 23. March 21, 1847, he was married to Nancy Ann Cooper, and was living in Henderson Co. IL ... for 25 years ...
1913 "History of Yolo County, California, with biographical sketches" by Tom Gregory, pub. by Historic Record Company (CA State Library book qc979.451 G8; FHL film 547,559 item 1)
Pg.304-6: JAMES M. McHENRY ... January 25, 1875, Mr. McHenry married his second wife, Mrs. Elizabeth (Duncan) Keithly, born near St. Joseph, Mo. ... Elizabeth Duncan was the daughter of Charles and Dorcas (Coffman) Duncan, natives of Tennessee and Maryland, respectively, and received her education in the public schools near St. Joseph, Mo. Her paternal grandfather, Joel Duncan, of Scotch parentage, was also a native of Tennessee and settled in McDonough Co. IL, where he farmed until his death. His son Charles spent his youth in Illinois, removing later to Andrew Co. MO, where he operated a farm for a time. Later he located in Henderson Co. IL, where he remained until 1864, going thence to California, with his wife and seven children ...
1906 "History of the state of California and biographical record of the Sacramento Valley, California" by Prof. James Miller Guinn, pub. by Chapman Pub. Co. (FHL film 468,760 item 2 and 1,000,095 item 2; CA State Library book qc 920.079 G9; also from Vivian Biddle; Sacramento FHC book 979.453 H964g)
Pg.1664: JAMES M. McHENRY ... Yolo Co. CA ... The widow of Mr. McHenry was in maidenhood Elizabeth Duncan, who was born near St. Joseph, Mo. Her father, Charles Duncan, was born in Tennessee, a son of Joel Duncan, also a native of the same state, whence he removed to McDonough Co. IL, ... until his death. ... Charles Duncan became a resident of Illinois in boyhood and in young manhood removed to Andrew Co. MO, where he followed his early training and became a farmer. Subsequently he returned to McDonough Co. IL, thence to Henderson county, same state, where he made his home until 1864, in which year he crossed the plains with his wife and seven children ...
1905 "Biographical review of Des Moines County, Iowa : containing biographical and genealogical sketches of many of the prominent citizens of to-day and also of the past" pub. by Hobart Pub. Co. (from Ronda Berry 3/1995; and FHL films 1,697,420 item 3 and FHL film 934,938 item 1)
Pg.511: WESLEY HOWARD. Mr. Howard ... a native of TN, he was born in White Co., Dec. 25, 1825, a son of Ignacius and Mary (Duncan) Howard. Ignacius Howard, a native of eastern TN, was a farmer, following that occupation in TN, and later in IL, whither he removed when his son Wesley was 9 years of age, locating six miles north of La Harpe [Hancock Co. IL]. He remained there only about 18 months, however, at the expiration of which period he again removed, coming to Des Moines Co. IA. In the spring of 1837 he located in Benton Twp, where he purchased a half-section ... erected buildings and established a home for himself and family. Here he resided for a long term of years, but finally removed to Henderson Co. IL where he shortly afterward died at the age of 74 years. His wife, also a native of TN, long survivied him, and died in CA at the advanced age of 91 years. (MAD: ? San Joaquin Co. or Sacramento Co.; Mary Duncan b. 1800 TN per 1850 census of Des Moines Co. IA; see also McDonough Co. IL)
Wesley Howard obtained his early education in his native State, and later accompanied his parents in their removal to IL and to Des Moines Co. ... In his 26th year he ... purchased a farm of his own ... He resided upon that farm for a number of years, but in 1865 removed to Danville township, where he engaged extensively in general farming and stock-raising for the remainder of his active career. He still owns a fine and very productive farm of 80 acres three miles east of the village of Danville ... He now resides in Danville, where he has a pleasant home ...
Dec. 4, 1851, Mr. Howard was united in marriage to Miss Charity A. Perry, who was born in Washington Co. PA, accompanying her parents to IA in 1845. She is the dau. of Thomas J.R. and Peggy (Gaston) Perry. (MAD: more on Perry family not copied here) To Mr. and Mrs. Howard have been born 5 children, as follows: Amanda, who died age 21 years; Perry L., now residing on a farm near Hepler, KS, married Miss Laura Van Dyke and has 3 daus. Myrtle, Elsa and Helen; Thomas who died age 4 years; James now residing on his father's farm in Danville twp. ... mar. Miss Hattie Jackson and has 3 children Murle, Grace and Walter; and William, who at age 16 years was drowned in Skunk River while bathing. ....
Return to the Henderson Co. IL Research File
Return to Index to Duncan Research Files in Illinois
Return to The Genealogy Bug's Home Page