Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug
Last revised August 26, 2007
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Duncan research files of |
1870 Adams Co. NE Census
Fort Kearney P.O.
Pg.669, #6-5, DUNCAN, Nathan 32 OH farmer $400-$550
GALLUP, Henry 20 CT farmer
LOWRY, John 24 IN farmer
"Reports of cases in the Supreme Court of Nebraska, from September term 1890 to January term 1891" by D.A. Campbell; ("Nebraska Reports") Vol.31, pgs.217 to 223 (California State Law Library, Sacramento, 1/2004)
OMAHA HARDWARE CO. v. DUNCAN & JEFFRIES; Supreme Court of Nebraska; 31 Neb. 217; 47 N.W. 846; January 20, 1891, Filed.
Error to the district court for Adams county.
(MAD: arguments of counsel omitted here)
(opinion) MAXWELL, J. The plaintiff brought an action against the defendants, by attachment in the county court of Adams county, to recover the sum of $708.75 for goods, wares, and merchandise sold and delivered by the plaintiff to the defendants. The attachment was sought on the ground that the defendants "are about to convert their property or a part thereof into money for the purpose of placing it beyond the reach of their creditors, and have assigned, removed, or disposed of, or are about to dispose of, their property, or a part thereof, with the intent to defraud their creditors, and are about to remove their property, or a part thereof, out of the jurisdiction of the court with the intent to defraud their creditors."
The defendants filed a motion to dissolve the attachment, and in support thereof filed their joint affidavit denying the grounds stated in the petition, etc.
The plaintiffs, to sustain their attachment, filed certain affidavits, and on the hearing the attachment was dissolved and the property released.
The case was taken on error to the district court, where the judgment of the county court was affirmed.
It appears from the record that on the 2d day of October, 1889, the defendants were engaged in the mercantile business at Pauline, in Adams county; that on that day they executed a chattel mortgage to W. H. Butler and Edmund Jeffries upon "our entire stock of merchandise, including and consisting of dry goods, groceries, queensware, and hardware; also, all fixtures, consisting of three show cases, one chandelier, one stove, all shelving, four counters, three pair scales, one Mosler & Bahman safe; all of said goods, fixtures, etc., are now owned by us, and being in a frame store-room on lot 15, block 3, in Pauline, Adams county, Nebraska; the mortgagors to remain in possession of said goods, etc., and to sell the same at retail or wholesale and apply the proceeds to the satisfaction of the debt secured by this mortgage." The mortgage was filed for record on the same day. It purports to be security for the sum of $2,217.82 as evidenced by six promissory notes. The mortgagees, nor any of them, were present when the mortgage was executed, nor does the proof before us show any acceptance thereof on their part, or that it was filed with their knowledge or consent.
In support of the attachment the affidavit of one M. L. Learned was filed, in which he says "that about 12:30 A. M., Friday, October 4, 1889, he had a conversation with W. J. Jeffries, a member of Duncan & Jeffries, above named defendants, at the store of said Duncan & Jeffries in Pauline, Nebraska; that this affiant asked said Jeffries if said Duncan & Jeffries had not given a mortgage on their entire stock of merchandise and fixtures situate in their store-room in Pauline, and said Jeffries in reply said that the firm of Duncan & Jeffries had, on October 2, given to W. A. Butler and Edmund Jeffries a mortgage for $2,217.82, and the said Jeffries further stated in said conversation that Edmund Jeffries, one of the mortgagees, was his father, and that W. H. Butler, the other mortgagee, was his partner, Duncan's uncle; that his father had not been in Pauline for more than two months prior to giving the mortgage, and that Butler had not been there for some time prior to the giving of the mortgage.
"Jeffries further said to this affiant that neither of the mortgagees were present when the mortgage was given, and that the mortgagees never had been in possession of the stock at all, but that he and Duncan had continued in possession just as before the mortgage was given, and were conducting the business in just the same manner as before the mortgage was given. In answer to the question of this affiant as to why he gave such a mortgage, he said that they gave the mortgage to prevent any creditor from levying on the stock and selling it out at forced sale, as in that way it would not bring what it was worth. During the conversation between this affiant and Jeffries, Jeffries stated that the traveling man of the above named plaintiff promised them eight months' time in which to pay for the goods ordered, but when asked by this affiant if the partner Duncan had not been to see the Omaha Hardware Company, at Omaha, and upon stating there that the traveling man had promised them eight months' time, was told that the Omaha Hardware Company never gave more than thirty or sixty days' time to any one, and that the traveling man had no authority to promise more than thirty or sixty days, and that Duncan was told if that order was filled, or they bought goods of the company, it must be with the understanding that they were to pay in thirty or sixty days and that the order would only be filled with that understanding. In reply to this question Jeffries said, in substance, 'Yes, he supposed that the debt was due and that he would go down to Omaha on the morning train and fix it up.' During the said conversation Jeffries did not once claim that the debt was not due until February. Jeffries stated to the affiant that his partner Duncan was the postmaster at Pauline, and pointed out to this affiant the part of the store used as a postoffice."
This witness is corroborated in his principal statements by a number of others.
In support of the motion to discharge the attachment the defendants made the following affidavit:
"W. E. Duncan and W. R. Jeffries, being duly sworn, each for himself deposes and says that they are the defendants in the above entitled action; that neither of the defendants herein, or the firm of Duncan & Jeffries, is as yet indebted to the plaintiff in any sum whatsoever; that the said sum set out in plaintiff's petition as being due from the defendants Duncan and Jeffries is not yet due, but, on the contrary, will not be due for about the space of four months from this date; that the goods purchased from the plaintiff by defendants, for the payment of which plaintiff claims the said sum of $708.76 as now due and owing from defendants to plaintiff, were purchased by defendant from the agent of plaintiff on or about the 10th day of June, 1889, and it was then and there stipulated and agreed to by and between these defendants and said agent for plaintiff, one A. A. Melanson, that these defendants were to have eight months from said 10th day of June, 1889, in which to pay for said goods so purchased, and that said sum will not be due till on or about the 10th day of February, 1890.
"Affiants further say, that they are not about to convert their property, or any portion thereof, into money for the purpose of placing it beyond the reach of their creditors, or that they have assigned, removed, or disposed of, or are about to dispose of, their property, or any portion thereof, with intent to defraud their creditors, or about to remove their property, or any part thereof, out of the jurisdiction of the court with intent to defraud their creditors.
"Affiants further say that on the 2d day of October, 1889, they made, executed, and delivered a certain chattel mortgage to W. H. Butler and Edmund Jeffries on the stock of goods contained in the store building situate on lot 15, block 3, in Pauline, Adams county, Nebraska, being the same stock of goods taken under an order of attachment issued in this cause; that said mortgage was given to secure a valid indebtedness from these defendants to said W. H. Butler and Edmund Jeffries of $2,217.82, and that it is provided in said chattel mortgage that these affiants were to remain in possession of said goods and sell the same at public or private sale and apply the proceeds of such sales in liquidation of the said sum of $2,217.82 so secured; that said mortgage was filed in the office of the county clerk of Adams county, Nebraska, on the 2d day of October, 1889, and these defendants have in all respects fulfilled the conditions of said chattel mortgage."
This is substantially all the testimony upon the hearing for dissolution of the attachment, and it was insufficient for that purpose.
The chattel mortgage, if valid, withdrew the property of the defendants from levy and sale upon either an attachment or execution. The circumstances under which this mortgage was made were such as to require proof from the mortgagees as to the actual consideration paid by them to the defendants. In other words, how was the debt incurred, and for what? These questions are not answered by the allegation of the defendants that the debts were bona fide. They should have stated the facts in regard to the creation of the debt, and a consequent giving of security for the same, and the court would have drawn conclusions of law from such facts. On the face of the papers, therefore, unless this mortgage was a bona fide transaction, there was an attempt on the part of the defendants to place their property beyond the reach of their creditors, which would fully justify an attachment.
The claim that the debt was not due does not appear to be well taken, as the proof clearly shows that it was due. If the proof clearly showed that the goods had been sold upon eight months' credit, we are not prepared to say that an action brought before that period had elapsed could be maintained; in other words, a party selling goods by an agent, in approving a contract made by such agent must adopt the same as a whole, and not that part alone which is beneficial and reject that which is detrimental. The proof, however, clearly shows that the goods were sold on not to exceed sixty days' time, and the defendants evidently so understood.
There is some testimony in the record tending to show that the defendants are young men of good character, although one of them seems to be somewhat inexperienced in the business. Whatever their ultimate aims may have been in regard to paying their debts, it is evident they made a mistake in attempting to cover up their property. Honesty and fair dealing require good faith on the part of debtors as well as creditors, and a chattel mortgage or other security made to cover up property but opens the way for its application to the payment of attaching creditors.
The judgment of the district court is reversed, the attachment reinstated, and the cause remanded for further proceedings. JUDGMENT ACCORDINGLY. The other judges concur.
1890 "Biographical and historical memoirs of Adams, Clay, Webster and Nuckolls Counties, Nebraska .." by Goodspeed (FHL film 1,000,183 item 1, book 18)
Pg.115, Adams Co. 1872 list of personal property owners and polls: P. Duncan, $390
1890 "Biographical and historical memoirs of Adams, Clay, Hall and Hamilton counties, Nebraska : comprising of a condensed history of the state, a number of biographies of distinguished citizens of the same, a brief descriptive history of each of the counties mentioned, and numerous biographical sketches of the citizens of such counties ..." by Goodspeed (from Kathy Cawley 6/2004 and FHL film 1,000,183 item 2 (book 19))
Chapter XVIII, Adams Co.
Pg.240: JOHN P. DUNCAN is a prosperous grain, stock and coal merchant of Roseland [Adams Co.], Neb., and in partnership with his brother. He was born in Elgin, [Kane Co.] Ill., September 14, 1845, being a son of P.W. Duncan, a native of Ireland, who came to the United States in 1841 and settled in Illinois, having previously married in Hartford, Conn., Miss Bridget Kingsley, who died when John P. was an infant. The latter grew to manhood in his native State, and after reaching his tenth year was a resident of Savannah, and is pricipally self educated, the most of his knowledge of books being acquired since reaching years of maturity. He learned the stone mason trade of his father, and after starting out in life for himself worked at this trade in Illinois up to 1870, coming to Nebraska in May of that year, and settling in Adams County, where he took up homestead in the southern part of the county, on the Little Blue River, which place he still owns. Many fine improvements were made on this farm, which continued to be his home until 1887, since which time he has been a resident of Roseland, being one of the first business men of the place. He has always held to the principles and supported the men and measures of the Democratic party, and for a number of years has held the position of supervisor of Silver Lake Township, and in 1888 was elected in Roseland Township for the same position. He was married in Iowa in 1878, and wedded his second wife in Illinois in 1883, her maiden name being Bridget Loughran. A daughter blessed his first marriage, named Frances, and his second union has resulted in the birth of four children: Stephen P., Mary E., Anna and John William. Mr. and Mrs. Duncan are members of the Roman Catholic Church.
Pgs.339-340: JOHN WOODS, farmer and stockman, Ayr, Neb. Every community is bound to have among its citizens a few men of recognized influence and ability, who, by their systematic and careful, thorough manner of work, attain to a success which is justly deserved. Among this class is Mr. Woods, a man esteemed to be a prominent and substantial, as well as progressive, farmer of his township. Since 1870 he has been a resident of Adams County, Neb., and since that time has been actively engaged in agricultural pursuits. He was born in Lawrence County, Ky., July 15, 1843, and was reared and educated in that county. His parents, James and Mary (Cains) Woods, were both natives of Kentucky, and the father was a hatter by trade, although he was also interested in cultivating the soil in Lawrence County. He sold out in 1859 and moved to Arkansas, locating in Marion County, where he died in 1860. His wife survives him, and now resides with a daughter in Nebraska. On October 10, 1861, John Woods enlisted in the Fourteenth Kentucky Infantry, United States Regiment, and served until discharged on January 31, 1865, four months after the expiration of his term of service. He participated in the battle of Kenesaw Mountain and the siege and surrender of Atlanta. While out on a scout he was taken prisoner in Kentucky, and held for six months, or until exchanged. He then returned to his home in Kentucky, but soon after came wet to Montana, where he was engaged in mining and freighting about four years. He returned to his native State in 1869, and the following year, as has been mentioned, he came to Nebraska. Here he made his home ever since, and is the owner of 320 acres of land, all in a body, and rich bottom land. He has it all cultivated and is doing well. In 1885 Mr. Woods bought a lot of heifers, and went west to start a cattle ranch in Montana, where he continued for about two years. He moved his family out there and back in 1887, as the decrease in price of fat cattle disabled him finacially. Mr. Woods was married here on July 31, 1873, to Miss Julia Duncan, a native of Illinois, and the daughter of Patrick and Ella Duncan. To Mr. and Mrs. Woods have been born two children: Cora and Mary E., both attending school at Hastings, and now in their third year. Mr. Woods has served as a member of the school board, and is interested in educational matters.
1916 "Past and Present of Adams County, Nebraska" by William R. Burton, pub. by S.J. Clarke, 2 vols. (FHL film 1,000,183 items 3-4, books 20-21)
Vol.II, pgs.112-116. JOHN P. DUNCAN. John P. Duncan has resided in Roseland since 1887 and has had a part in the business development of the town. For a number of years he was engaged in the grain, coal and live-stock business but is now living retired. His birth occurred in Elgin [Kane Co.], Illinois, on the 14th of September, 1845, and his parents were Patrick William and Bridget (Kingsley) Duncan, the former born in County Monaghan, Ireland, and the latter in County Wexford. They were married, however, in the vicinity of Hartford, Connecticut, about 1843 and in the following year removed to Chicago [Cook Co.], whence they went to Elgin, Illinois. The father, who was a stonemason, worked on the construction of the Illinois Central Railroad and after leaving the employ of that corporation continued to follow his trade for some time. He also farmed near Elgin for a few years but later went to Savanna [Carroll Co.], Illinois, where he engaged in agricultural pursuits and also worked as a stonemason. In 1870 he decided to try his fortune still farther west and came to Adams county, Nebraska, homesteading on section 14, Silver Lake township. That place remained his home until 1879, when he took up his residence in Roseland, where he died about 1900 and where he is buried. He was a man of marked public spirit and held the esteem of his fellow citizens in full measure. He lost his first wife when their only child, our subject, was but six months old and subsequently he married Ellen McGrath, by whom he had the following children: William F., a resident of Roseland; James, of Thorp, Washington; Eugene, Julia, Mary and Kate, all of whom are deceased; Anna, the wife of Lee Arnold, of Roseland township; and Ella Bovard, who lives at Ayr, Nebraska.
John P. Duncan was educated in the common schools of Illinois and through assisting his father gained much valuable knowledge of farming. In 1870, when about twenty-five years of age, he came to this county and took up a homestead on section 10, Silver Lake township. His first residence here was a shanty built of palings, and his farm equipment was very primitive. But he was determined to succeed and by dint of much hard work and careful planning he gained a start and from that time on his resources increased steadily. He engaged in farming until 1887 and during that time brought his place to a high state of development. In October of that year he built a residence in Roseland, the second house to be erected there, and he has since resided in the town. About 1888 he and his brother William built an elevator in Roseland and for a number of years he was one of the leading grain, coal and live-stock dealers of the locality. The enterprise and sound judgment which enabled him to succeed as a farmer were again demonstrated in the conduct of his business interests in Roseland and he gained a gratifying measure of prosperity. He is now living retired and is enjoying a leisure which his former labor has made possible.
Mr. Duncan was married when twenty-eight years of age to Miss Anne Dempsey, who passed away leaving a daughter, Bridget Frances. In 1881 Mr. Duncan was again married, Miss Bridget Loughran becoming his wife. To them were born seven children, namely: Stephen P., a druggist of Blue Hill, Nebraska; Mary Ellen, the wife of Frank J. Roth, of Roseland; Annie F., who is a stenographer in the employ of the Peters Trust Company of Omaha; John W., a practicing physician of Omaha; Sarah, at home; James, attending the State University; and Kathleen, deceased.
Mr. Duncan is a democrat in politics and served as supervisor for a number of years. He and his family are members of the Assumption Catholic church and observe its teachings in their lives. Fraternally he is associated with the Workmen lodge at Roseland. He is acquainted with practically the entire history of the county as it was but sparsely settled when he arrived here in 1870, and in the fall of 1871 he planted what was probably the first fall wheat sown in the county. While so occupied the Indians stole a horse and it was not until the following April that he recovered it. This incident is of interest as it indicates the annoyances to which the early settlers were subjected by the red men and there were also many other unpleasant features of pioneer life, but Mr. Duncan had faith in the future of the county and lived to see that faith amply justified.
1913 "A history of Montana" ed. by Helen Fitzgerald Sanders, pub. Chicago: Lewis Pub. Co., 1913, 2196 pgs. (LH12733, HeritageQuest images 2/2007, 5/2007 & 8/2007; FHL book 978.6 D3s v.1-3 and film 1,000,174 items 2-4)
Pg.1200-1201: JUSTISE L. WILSON, ... owner of an excellent ranch situated about ninety miles from Miles City, in Custer county (MAD: "Justise" as spelled), born on the old homestead situated near Fort Wayne, Allen Co. Indiana, November 22, 1860, a son of John T. and Hannah D. (Jones) Wilson. (MAD: more on Wilson family) ... On January 29, 1882, Mr. Wilson was married at the farm of his bride's father near Hastings, Nebraska, to Miss Margaret Duncan, a native of Savannah, Illinois, and the eighteen-year-old daughter of Patrick Duncan. The latter, a native of Ireland, came to the United States as a young man and first engaged in farming in Illinois, but in 1879 settled near Hastings, Nebraska, where he was identified with agricultural matters until his death, at the age of ninety years. Mr. and Mrs. Wilson have four children: Ernest Lee, William R., Julinalta and Helen. ... (MAD: see Adams Co. NE; Savannah, Carroll Co. IL)
"Montana, its story and biography : a history of aboriginal and territorial Montana and three decades of statehood" by L.E. Munson, ed. by Tom Stout; pub. Chicago: American Historical Society, 1921, 2791 pgs. (LH12734, HeritageQuest images 5/2007 & 8/2007; FHL book 978.6 H2s v.2 and film 1,000,175)
Vol.III, pg.1082: JUSTICE LINCOLN WILSON, proprietor of the "W Bar" ranch in Powder River County, five miles up the river from Broadus, the county seat of the newly created county, ... was born at Fort Wayne, Indiana, November 22, 1860, son of John Tolburt and Hannah D. (Jones) Wilson ... in 1863 the family migrated to Marshall Co. IA ... the widowed mother took her children to Nebraska in the early '70s. ... John T. Wilson ... his children were as follows ... Justice Lincoln, whose name heads this review; and Nellie, who married James Duncan, of Thorpe, Washington. .... (pg.1083) On January 28, 1882, Justice Lincoln Wilson was united in marriage near Hastings, Nebraska, to Margaret Duncan, a daughter of Patrick Duncan. Born in Ireland of Scotch parents, Patrick Duncan came to the United States and lived in Illinois at the time of his marriage, and spent some time near Carroll and at Chicago, that state. In the early '70s he migrated to Nebraska, and was one of the first settlers of Adams County, Nebraska, where he died when about ninety years old. His children were as follows: John, who lives at Roseland, Nebraska; Julia, who married John Woods and died on Powder River; William, who lives at Roseland, Nebraska; Mary, who never married, and died at Roseland, Nebraska; Catherine, who married Edward Wilson, a brother of Justice Lincoln Wilson; Ellen, who married James Bovard, and lives at Ayr, Nebraska; Mrs. Wilson, who was born October 26, 1863; Anna, who married Lee Arnold of Roseland, Nebraska; and Eugene, who died at Roseland, Nebraska. ... (MAD: Thorpe, Kittitas Co. WA, James Duncan b.1857 IL from 1910 census index; see 1880 Adams Co. NE census, James Duncan another son of Patrick Duncan)
END
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