Duncans in Callaway Co. MO Court Records


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

Last revised February 9, 2004


"Reports of cases determined in the Supreme Court of the state of Missouri from 1840 to 1842" by Louis Houck, Consellor at law, Vol.VII, pgs.65 to 67; spine title "Missouri Reports - Houck - Vol.6-7"; ("Missouri Reports") Vol.7, pgs.120 to 125 (California State Law Library, Sacramento, 1/2004) (MAD: ? see Callaway Co. MO)
      ABLE and ISBELL v. SHIELDS and others; Supreme Court of Missouri, First Judicial District; 7 Mo. 120; August, 1841, Decided.
      COUNSEL: Hayden, for Plaintiffs. 1st. That the court below erred in overruling the motion of defendants to suppress the deposition of Duncan, as also in permitting the plaintiffs to read the same to the jury. 2nd. The court erred in permitting the plaintiffs to read to the jury the deed of assignment. 3rd. The court erred in refusing to permit defendants to prove the facts by the witness, Arbuckle, which they proposed to prove by him. 4th. The court erred in refusing to permit the defendants to prove that the deponent, Frederick Duncan, made contradictory statements in relation to facts about which he deposed as a witness at a different time. 5th. The court erred in overruling the motion for a new trial.
      Winston, for Defendants. 1st. The court committed no error in overruling the motion to suppress the deposition, because the deposition was properly taken. 2nd. The court did right in permitting the deed of assignment to be given in evidence: the law does not require the assignment of promissory notes, not negotiable, to be written on the notes themselves. 3rd. There was no error in rejecting Arbuckle's testimony, because he was interested in the event of the suit. 4th. The court committed no error in permitting the promissory notes of Shannon and Arbuckle to the plaintiffs, to be read in evidence, as rebutting evidence. 5th. The court committed no error in suffering the deposition to be read on the trial. 6th. There was no error in refusing to permit evidence of Duncan's making statements contradictory of what he had made in his deposition, because he was not examined as to those statements at the time his deposition was taken. 7th. The court did right in not arresting the judgment, because the declaration was substantially good. (MAD: case citations omitted here)
      (opinion) NAPTON, J. The appellees, Shields and others, brought an action of debt against Isbell and Able, as assignees of a note given by defendants to Shannon and Arbuckle, for the payment of $316.62 1/2. The defendants pleaded non-assignment, a re-delivery of the note sued on, nil debet, and set-off. Upon which several pleas issues were taken and a trial had. At the trial term, the defendants moved to suppress the deposition of one Duncan, upon the ground of want of notice to plaintiffs, and the want of proof that the witness came within any of the provisions of the law authorizing such depositions to be read on certain contingencies. There was proof of service upon defendant's wife in due time, but no evidence to show at what distance the defendants lived from the place of trial. The motion to suppress was overruled.
      The plaintiffs on the trial, after reading the note in evidence, read a deed of assignment from Shannon & Arbuckle, which is substantially as follows: The deed declared that the makers, in consideration of the sum of two thousand dollars paid by plaintiffs, transferred, assigned, and delivered to the plaintiffs certain notes (reciting therein, among others, the note sued on), and authorized and empowered the said plaintiffs to use their, the assignee's, names in suing for and collecting the same, but upon condition, that if said Arbuckle & Shannon should in a reasonable time give good and sufficient security for the payment of the several demands owing to the plaintiffs (assignees), then the said Shannon & Arbuckle were to be released from all demands by said plaintiffs, and the notes, &c., to be delivered up to said assignees. This deed was signed and sealed by the assignees. The defendants then introduced several witnesses, whose testimony conduced to show that the condition of the deed of assignment had been complied with, and the notes given up. Among others, defendants offered Arbuckle, one of the assignors, to prove that the condition had been complied with, but objections being urged to his competency, he was excluded by the court. To rebut the testimony on this head, the plaintiffs offered to read the deposition of Duncan, but the defendants objected, because no reason had been given why the witness was not personally present. The court, however, overruled the objection and allowed the deposition to be read. The plaintiffs also read two promissory notes executed by Shannon & Arbuckle to Shields and Hickerson, for the payment of more than $1000, bearing date previous to said assignment, and still in the hands of Shields & Hickerson unpaid, which testimony was objected to, but objections overruled. The defendants then introduced a witness, by whom he proposed to show that Duncan, the deponent, whose testimony had been read to the jury, had shortly after the occurrence about which he testified, given a very different and contradictory account from that given in his deposition. The court refused to let the witness testify, because Duncan had not been interrogated when making his deposition, whether he had made any such contradictory statements. To all the opinions of the court, exceptions were duly taken. A verdict was given for plaintiffs, and a motion for a new trial was made and overruled.
      The most material question to be decided in this case arises on the proper construction of this assignment. Our act makes the assignee the legal owner of the bond or notes. That assignments may be made on a piece of paper separate from that, on which the note or bond is written, appears to be settled in Kentucky, where statutes on this subject are similar to our own. The decision of the Kentucky court, on statutes from which our own are copied, may be safely followed, unless great inconvenience appears likely to arise. I see no reason why several bonds and notes may not be assigned by one instrument, and the same legal operation must be given to the instrument, as though a single bond only were assigned. The fact that this was a conditional assignment, does not vary the legal ownership; until the condition is performed, the assignee is clearly the legal owner.
      The deposition of Duncan was improperly admitted. No reason was shown to the Circuit Court, to bring him within any of the contingencies of the statute, which would authorize his deposition to be read. The substance of that deposition was, that he was a collector for plaintiffs, called on defendants for the money due on this note, received a portion and was promised the balance.
      The object of this deposition was to rebut the testimony adduced by defendants in support of their second plea, that the notes were delivered up. The testimony was material to this issue, and the Circuit Court committed error, in my opinion, on this point.
      Neither do I think the issue itself immaterial. The cancellation of the instrument of assignment and the re-delivery of the notes would be the best evidence that the conditions had been complied with, and the legal ownership transferred to the assignees. But a compliance with the conditions of the instrument on the part of the assignors, and a delivery of the notes and bonds assigned to them, would ipso facto effect a nullification of this instrument, without any formal re-assignment. Such formal conveyances are not, I believe, now deemed necessary even in cases of extinguished mortgages, much less would I hold it necessary in a case like the present.
      The witness, Arbuckle, was clearly incompetent, the object of his testimony being to show title out of the plaintiffs and in himself. Nor had the defendants any right to contradict the deposition of Duncan, by proving contradictory statements, without first having called his attention to such statements.
      The introduction of the two notes in evidence which showed an indebtedness on the part of the assignors to two of the plaintiffs, appears to me irrelevant; and because the conditions upon which the deed was to be void were not a liquidation of their debts, but giving good and ample security. Because the court admitted improper testimony on a material point in issue, I am of opinion the judgment should be reversed.
      (opinion) SCOTT, J. Whether the deposition of the witness was properly or improperly admitted, is a question I deem unnecessary to determine, as it contained evidence relative to an issue immaterial and extrinsic to the merits of the cause. When a conditional assignment of a note is made, the law does not impose on the maker the burden of ascertaining whether the condition has been performed, and the title of the assignee consequently extinguished.
      If the maker pays the assignee, although the title of the assignee may have been defeated by the performance of the condition, yet he is indemnified, and the assignor cannot complain, as he had no right to require the maker at his peril to learn whether the assignee's title to the instrument has been extinguished. If then he is not bound to make this inquiry, and he is indemnified in the payment, he cannot set up at law the defense that the assignee's title had failed. Moreover, to enable the assignee of a promissory note to maintain an action in his own name, the assignment must be shown to have been in writing; by the assignment the payee passed the legal title to the assignee, and although the extinguishment of that title, by the performance of the condition on which it was made, may equitably entitle the assignor to the note, yet, unless there is an actual re-assignment, there is no evidence that he is the legal owner of the note. In all other parts of Judge Napton's opinion, except that in relation to the relevancy of the evidence concerning the two notes, I concur.
      TOMPKINS, J. I concur in Judge Scott's opinion, and the judgment is consequently affirmed.

"Reports of Cases Argued and Determined in the Supreme Court of the State of Missouri" by Chas. C. Whittelsey, Reporter, Vol.VI; ("Missouri Reports") Vol.37, pgs.160 to 165 (California State Law Library, Sacramento, 2/2004)
      G. W. STUCKER, Plaintiff in Error, v. F. W. DUNCAN, Defendant in Error; Supreme Court of Missouri, Jefferson City; 37 Mo. 160; January, 1866, Decided.
      Error to Callaway Circuit Court.
      This was an action in the nature of a trespass, brought by Stucker against Duncan, to recover damages for timber cut on certain tracts of land described in his petition. Duncan answered denying the trespass, and set up title in himself to the said land, described as the N.W. 1/4 of the N.W. 1/4 of sec. 15, the S.W. 1/4 of the S.W. 1/4 of sec. 10, and the S. 1/2 of the S.E. 1/4 of sec. 9, all in township 46, range 8 west. The defendant likewise set up in his answer that he held the elder certificate of entry to these lands, and the same had been improperly cancelled by the Land officers -- asserted his better equity, and asked that, notwithstanding Stucker held a patent for the lands, the title be decreed to him.
      Upon the trial, plaintiff proved the cutting of some timber trees on the said land by defendant after the purchase of the same by plaintiff and before the commencement of the suit. Plaintiff read in evidence the patent conveying the land in controversy to plaintiff, dated March 1, 1860, and rested his case. Defendant then read in evidence a certificate of entry by himself, which was signed by Dallam, the Receiver at St. St. Louis, and dated St. Louis, Missouri, December 21, 1854. Both the certificate and the patent embraced the same parcels of land claimed by Stucker in his petition and by Duncan in his answer.
      Defendant then introduced one Bowlin, who said that in 1854 he was with defendant in the neighborhood of the land in controversy when they met plaintiff, and defendant told him he had entered the land.
      Plaintiff then introduced one William Stucker, who said he saw a small cabin on the land, built of round logs or poles, and perhaps ten feet square; the floor was weather-boarding plank laid down loosely, a few loose plank in the loft, no window, a door cut and an old shutter put up, and no chimney; neither did he see any place for a stove-pipe. There was an old stove with a joint or two of pipe laying on the floor. No one was living in the house at that time. It was in the year 1854. No ground had been cleared or cultivated. The defendant Duncan lived up in the prairie, on a farm, where he had lived a number of years; he had a large family; he kept the post-office at his house on the prairie. The witness was frequently at Duncan's house on the prairie, before and after he entered the land in controversy, and never missed his family from his said house. Plaintiff never lived on the land in dispute, nor ever built upon it; he owns a farm adjoining said lands; neither did plaintiff ever live upon the land.
      This testimony was corroborated by the statements of another witness.
      Plaintiff then offered to read in evidence certified copies of papers from the General Land Office, tending to show and actually showing the recision of Duncan's entry, and the entry or permission to enter the same lands by the plaintiff Stucker. The defendant objected to the reading of the papers in evidence, and the court sustained the objection; to which ruling of the court in sustaining the objection plaintiff duly excepted. He then offered to read in evidence the sworn statement of W. P. Selby, as found in said papers, (first proving the death of Selby,) to which plaintiff objected. The court sustained the objection, to which plaintiff excepted.
      The plaintiff then offered to read in evidence another paper, showing that the entry of Duncan (defendant) was made under the graduation and pre-emption law of 1854, and also the evidence upon the cancellation of defendant's entry; this was objected to by defendant, and the objection was sustained by the court, and the plaintiff excepted.
      Among the papers offered in evidence is a copy of the affidavit of defendant when he applied to enter the land in dispute, which showed that he (defendant) offered to enter the said land under the graduation and pre-emption law of 1854; also, a certified copy of the St. Louis Land records showing that defendant's entry of said land had been cancelled: to the reading of which defendant objected, the court sustaining the objection, and plaintiff excepting.
      Plaintiff likewise offered to read in evidence a certified copy of the notice served on defendant, notifying him that plaintiff Stucker had contested his entry of the said lands, and when and where the matter would be investigated, as well as a copy of the notice of cancellation. The defendant objected also to this, which objection was sustained by the court, and the plaintiff excepted.
      The testimony being closed, the plaintiff asked the court to give the following instructions, to wit:
      "1. That plaintiff, having the legal title to the land upon which the trespass was committed, is entitled to recover.
      "2. The Government of the United States, through its agents, has a right to vacate the entry and certificate thereof of any one whenever a fraud has been practised upon the Government through or by the person entering the same; and if a fraud was practised in the entering of the land in dispute, and the Government through or by its agent vacated the same, then the verdict ought to be for the plaintiff.
      "3. If Duncan had not in good faith improved and settled upon the land in dispute, then he, in taking the oath and making the entry of said land, practised, or attempted to practise, a fraud upon the Government; and the Government, in consequence of said fraud, had the right to vacate the entry.
      "4. If the entry of Duncan was vacated by the Government, and the lands were afterwards entered by Stucker and he obtained a patent therefor, he holds the legal title to the same, and ought to recover in this action."
      These instructions were refused by the court, and plaintiff duly excepted.
      The court, at the instance of defendant, gave the following instruction:
      "1. That the Register or Receiver of the Land Office had no power or authority, by virtue of his office, to sit in a judicial capacity and decide upon the validity of the defendant's entry of the land in controversy, and to rescind and cancel the contract between the United States on the one hand and the defendant on the other, and divest the defendant's equity in the land; that under the Constitution, and the acts of Congress made in pursuance thereof, there is no such judicial officer as that of Register of Lands, or Register and Receiver, and defendant's equitable title by his entry and payment of the purchase money cannot be divested by any proceedings at the Land Office which are coram non judice and void."
      To the giving of this instruction plaintiff objected, which objection the court overruled, and the plaintiff duly excepted. A verdict was found for defendant. Plaintiff filed his motion for a new trial and sued out his writ of error.
      COUNSEL: Sheley & Boulware, for plaintiff in error. (MAD: citations omitted here)
      I. The patent vested the legal title in plaintiff Stucker to the lands in controversy, and in an action in the nature of trespass, the court (whatever may have been its powers and duties as a court of equity) had no right to go behind it.
      II. The Commissioner of the General Land Office has the supervising control over entries of land, and in supervising an entry he acts in a judicial character or capacity, and has the legal right to vacate an entry. See act of Congress for the adjustment of suspended pre-emption land claims, and approved August 3, 1846. This act was revived and continued in force by the act of March 3, 1853, and the act of June 26, 1856.
      III. The court erred in excluding the records of the Land Office, as the same showed upon what the action of the officers was based, and that the entry was vacated; and the plaintiff had a perfect right to show that the elder certificate was obtained by fraud.
      H. C. Hayden, for defendant in error. The court below very properly excluded the various documents pertaining to the judicial investigation before the Register and Receiver of the Land Office. No such power is given to these officers, or either of them, to sit in a judicial capacity, and adjudicate land titles, and divest equitable interests, which they as the agents of the Government have been instrumental in vesting in individuals who through them purchase lands of the Government. For the like reason the court properly declared the law as contained in defendant's instruction; such proceedings being without any jurisdiction conferred by law, are coram non judice and void.
      Lovelace, Judge, delivered the opinion of the court. This is an action for trespass upon real estate. The defendant justified upon the ground of an equitable title in the real estate named in the petition. It is unnecessary to make a statement of this case inasmuch as it involves in every particular the same issues that were decided in the case of Hill v. Miller, decided by this court at the August term at St. Joseph (36 Mo. 182); and, for the reasons given in that case, this judgment is reversed and the cause remanded. The other judges concur.
      (MAD: from the Missouri Supreme Court Historical Database http://www.sos.state.mo.us/archives/judiciary/supremecourt/
            Supreme Court Case Files; Contributor Appellant George W. Stucker, Respondent Frederick W. Duncan, filed 1864, Callaway Co., 2nd Circuit, 4th District, Civil proceeding, reversed, detainer and trespass; Court takes jurisdictioon on patents from land officers when they violate the law; Stucker sued for trespass & removing timber; Duncan claimed title; Identifier Old Box Number 96, Old Folder Number 20, Location 16A/6/6, Box 268, Folder 2; Courtesy of the Missouri State Archives)

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