Duncan research files of
Greenville Co. SC Index to Equity Records 1822-1850 (FHL film 292,485)
Duncan, P.E. & B.J. Earle, Admrs. of A. Sloan, decd, petition, 1829, rolls 3, 4, 9; 1831 roll 59
Duncan, R.B. Exor vs. Laurens Broock, Bill for Partition & account, 1846, roll 148
Duncan, R.B. Ex Part - Petition, 1847, rolls 115, 157
Greenville Co. SC Equity Court Bills 1822-1823 (FHL film 24,036)
No index; only a few court cases, no Duncan.
Greenville Co. SC Equity Court Records (FHL film 292,498)
1829, Roll 59: Filed 6 July 1839, recorded page 254, 13 Aug. 1829. Baylis J. Earle, one of the admrs of the estate of Alexander Sloan decd, who d. Sept., 1826, intestate, and one Perry E. Duncan obtained from the ordinary of Greenville Dist. letters of administration on said estate; that Alexander Sloan 5 April 1823 entered partnership agreement with Robert B. Duncan and Perry E. Duncan to carry on the business and trade of merchandize in the City of Augusta, GA, for 3 years, Earle asks the court to review the books although he has confidence in the Duncans. R.B. Duncan was the acting partner after the death of A. Sloan. The company books were introduced into court, and the original Articles of Agreement. Articles of Agreement between Alexr. Sloan, R.B. Duncan & Perry E. Duncan, comprising the firm of R.B. Duncan of Augusta, [Richmond Co.] Georgia, with Henry W. Perrin, 17 Nov. 1824.
Greenville Co. SC Equity Court Records (handwriting was very difficult to read)
Index 1823-1869; no cross index (FHL film 292,485, looked page by page)
1833, Roll 69, Bullock, Rebecca, Crockett, Martha, et al, vs. R.B. Duncan, Polly Silley, et al, for relief 1833; Moore, William et al & Jeremiah & John & R.B. Duncan vs. John More (indexed). John Moore et al vs. R.B. Duncan, Bill for Relief, Greenville Dist. Filed 23 Jan. 1830; ordered that this Bill be taken as confessed 21 May 1830; Bill dismissed 9 July 1833; rec. Page 287, July 17, 1833. (FHL film 292,488)
Complaint by John Moore, (blank) Silly and Polly his wife formerly Polly Moore, (blank) Crockett and Martha his wife formerly written Moore, (blank) Bullock and Rebecca his wife formerly Rebecca Moore, William Moore and Jeremiah Moore; that on 30 April 1796, James Moore the father of your orators executed a deed, copy attached, and conveyed certain property therein named to your orators, reserving to himself a life estate; that the deed was recorded and was a fair and ?? action and has been so decided by the judicial ?? of Georgia where the same was executed. These persons have since contracted with James Moore who is an aged and imbecile man; ... compelled to give security for the forthcoming of the property at the death of said James Moore; that one of the negroes Jinny was (may?) came into? possession of R.B. Duncan of (Greenville Dist. SC) and that she may now have several children; orators ask that Duncan give security that he will deliver to the orators upon the death of James Moore the negro woman Jinney and her present and future increase.
State of SC, to Robert B. Duncan Esq., Greetings (summons) to appear in the Court of Equity, Greenville court house, on 20 April next to answer the Bill of Complaint, and give bond; returned 31 March 1830.
The answer of Robert Berry Duncan to the Bill of Complaint of John Moore & others. Duncan has lately heard something of a deed spoken of in the Bill, but knows nothing of it of his own knowledge. ... (agrees) they are children of James Moore ... reference to length of time since the deed. This defendant never had Jenny in possession nor did he in fact ... claim to a share in remainder after the death of his mother under the will of his brother James Duncan's will. A negro woman Jenny was purchased about 1815 by Alexander Brown Esq. executor of James Duncan under Duncan's will to purchase for his mother a negro woman for her use during her life and then equally devided between all the brothers and sisters of the said James Duncan. Jenny was raised? with Mrs. Hannah Duncan the mother of James until her death in 1821 and in the meantime lived with children?. Afterwards Robt. Duncan fee? them of Deft? which? her & her children until about 1828, when he ... his son-in-law John E. Brown to have them for their support, and he soon proving tired? of them, Perry E. Duncan ?& ?consort of his brothers & sisters furthermore? Revhard? to keep them about a year, and about 15 Dec. 1829 said Perry E. transferred them to Jas. McDaniel and took his note for $1300 ... (cannot read) & his brothers and sisters to have recourse? ... under the will of their brother James ... sold to McDaniel ... when sold, Jenny had five? children, to wit, Sarah, Nincy?, Mary, (blank) and was pregnant. ... to pay James Moore's debts ...came to the hands of Robt. Cassell? who sold her with warranty of title to Nic? Borris? from the will of Jas. Duncan. (cannot read handwriting). Oath of R.B. Duncan 9 July 1832, filed 9 July 1832; recorded Page 288, July 17, 1833.
To all to whom these presents shall come greeting; know ye that I James Moore of Oglethorpe Co. GA for love of my children, do give, grant & confirm unto my children, to wit, John Polly Silley Martha Crockett & Rebecha Bullock four negro slaves, to wit, Sarah, Lucy, Handy & Jincey and their future increase, provided that if I should have other children, they each shall have an equal share, reserving to myself and wife Elizabeth the use of said negroes so long as we both shall live provided I should choose to keep them in trust under the care and advise of my friend and brother Jno. Moore in Co. & State afsd; eyeth (8?) April 1796, /s/ James Moore; wit. Turner Hamner, Richd. Harvey Moore; deed of gift heard on the oath of Turner Hamsier? one of witnesses, 2 May 1796.
Greenville Dist. SC, to Thomas Moore exec. of will of Robert Cabble decd. You are hereby notified that we hold on the legatees of James Duncan decd a bill of sale for a certain negro woman named Jinney conveyed by said Cabble in his lifetime to Alexander Bowie exec. of last will of said James Duncan, for our use, in which bill of sale the said Cabble has bound himself to warrant & defend the right & title thereto; and one John Moore & others have filed their bill of complaint in the Court of Equity in Dist. of Greenville claiming a future interest in said negro woman & her increase. You are therefore required to appear & defend the title to the property according to the warranty of your testator and also to detain in your hand a suffering? of assets out of the estate of said Cabble to remunerate us for loss of said property in case there is a decree against us on the determination of the aforesaid case. 12 Feb. 1831. /s/ John Duncan, Wm. Duncan, Lovisa Harrison, Pamela Hawkins, Robt. B. Duncan, P.E. Duncan, Sophronia I. Hawkins, Hannah M. Brown, Melissa F. Brooks.
1847, Roll 115, R.B. Duncan, Ex Part - Petition, 1847 (& #133) -- not #115 (FHL film 242,490, not found)
1846, Roll 148, R.B. Duncan Exor vs. Laurens Brock, Bill for Partition & account, 1846. R.B. Duncan exec. of Henry Brock who was a brother of Laurence Brock of Benton Co. AL - no Duncan heirs, looked at, not copied further. (FHL film 292,492)
1847, Roll 157, R.B. Duncan executor &c et al vs. Laurence Brock, George Brock, John Brock et al; bill for Partition and Sale of Real Estate; filed March 16, 1847, Answer filed June 22, 1847. (FHL film 292,493)
Complaint by orators Robert B. Duncan, John Jackson Russell called John Goodlett, Catherine Lord and Th. M. Lord her husband, James Maddison Loftes, Rebecka E. Croft, & Benedict Gilreath, Ereline Gilreath, Nancy Gilreath, Julia Gilreath, Amelia Gilreath, Laurence Gilreath, Wesley Gilreath, Eliza Gilreath, children of Eudoria Gilreath decd; William H. Burns son of Julia Burns afterwards Julia Turoblin? decd, Nancy Brock, Betsy Waddle and Nicholas Waddle her husband, Nancy Jane Hawkins and Lawson B. Hawkins, Harriet C. Garrison and Nehemiah? Garrison her husband, as follows: Henry Brock died about 12 months since, leaving a will and codicil, copy herewith filed and marked Exhibit A; in his will he appointed said Robert B. Duncan and Laurence Brock execs, the said Laurence Brock has refused to qualify; Robert B. Duncan has qualified and taken upon himself the sole execution of the will; after payment of certain special legacies to some of the orators, the testator directs the rest be divided equally among certain other orators named in the will; the testator at his death left neither wife nor (one word cannot read) children or other lawful descendants, but the following brothers and sisters and nephews and nieces & children of brothers and sisters deceased, whom in law would have been his heirs: Laurence Brock, George Brock, & John Brock, brothers of the testator residing in the state of AL, Thomas W. Brock residing in GA, Nancy Jane Hawkins and Hanah? E. Garrison who are legatees, children of Wether? Brock decd who was a brother of the testator, Xury Duncan, Robert R. Duncan, Perry A. Duncan, W.H. Duncan, Jno. B. Duncan, Marshall Duncan, Mary M. Clement & Abraham Clement her husband, and Sultana C. Bell and William Bell her husband, children of Mary Duncan decd. who was a sister of the testator who reside in the State of MO (MAD: see will of John Duncan in 1850 Pulaski Co. MO), Elizabeth Waddle who resides in GA and is the sister of the testator, William H. Burns who resides in GA and is the only child of Julia Burns afterward Julia Tumblin? decd. who was the sister of the testator, Ahemelid? Gilreath, Evelin Gilreath, Nancy Gilreath, Julia Gilreath, Amelia Gilreath, Laurence Gilreath, Wesly Gilreath, Eliza Gilreath, who are the children of Eudonia Gilreath, the sister of the testator, and Nancy Brock the sister of the testator; that the testator possessed a valuable estate both in SC and AL and the lands in AL have been vested in Laurence Brock by bill in Equity as his share of the property belonging to Henry and Laurence Brock and the lands in SC now in the same way have vested in the estate of Henry Brock the testator. It will be necessary to sell all of the lands belonging to the estate of the testator in order to carry out the will; the following tracts belong to the estate: 530 acres (3 written over 5) called the Home place on Gron? Creek in Greenville Dist, and 470 acres on Tygar River in Greenville Dist. and ("two two hundred ten") 210 acres on Buckhorn Creek which N.A. Fenull?? has agreed to purchase for $225, and 250 acres on the line of Greenville which J? O'Niel & others have agreed to purchase for $250. Petition to sell the land, and that a writ of partition issue to direct commissioners to value the land and determine if it can be divided or not; and that Subpoena issue and notice of publication on those residing outside this state for 3 months, viz, Laurence Brock, George Brock, John Brock, Thos. Brock, Xury Duncan, R.N. Duncan, Pery A. Duncan, W.H. Duncan, Jno. B. Duncan, Marshall Duncan, Sultana Bell and William Bell her husband, Mary W. Clement and Abraham Clement her husband.
Court order to Roger Loveland, John McRoberts, Barnett Cleveland; commissioners to report to the Court of Ordinary on 4th Monday in June next whether the tracts of land belonging to the estate of Henry Brock decd. can be divided without injury amongst the legatees named in the will of said Brock, viz, 530 acres called the Home place on Grove Creek, 470 acres on Tyger River, 210 acres on Buck Horn Creek, 250 acres on line of Greenville and Spartanburgh Districts. If the tracts cannot be divided, then ascertain the value of each, and report whether the tract of 210 acres bargained for by M.S?. Truell in the lifetime of said Henry Brock should be sold to him for $225, and whether the tract of 250 acres bargained for by Daniel Atkins in the same way should be sold to him for $250; and report such other matters in October as you may deem proper. (no date)
Return by commissioners who report they have estimated the tracts of land cannot be divided among the legatees mentioned without manifest injury, and they have valued the land: the home place of 530 acres at $4100, the tract on Tyger River of 470 acres at $2650, the tract bargained to W.O. Trusil? of 210 acres at $275.00 and recommend that the executor R.B. Duncan be authorized to execute title to the land to W.O. Fenell? on his paying the valuation, the tract of 250 acres bargained to Daniel Atkins at $250 and recommend the exec. make title to him when he pays the sum, by 1 Aug. next, otherwise to be sold with the other lands; the commissioners recommend the two first tracts mentioned be sold at public auction to highest bidder on ? day in Oct., on credit of one or two years with interest from date of sale; they recommend the tract of 470 acres on Tyger be sold in two tracts, the division to be made by the road running from Thomas Bridge to Mass S. Goodletts house, all on the east of said road to be sold in one tract and all on the west in one tract; submitted June 26, 1847, /s/ J?N. Roberts, Barnet F. Cleveland, R. Lovetward?
Court order; on reviewing? the report of the commissioners, it is ordered that the executor be ??? letters to N.O. Tevill? for the tract of land bargained to him on his paying or securing the payment of the purchase money for the same. It is also ordered that the executor make title to him for the tract ... paying the money or securing the payment by the first Monday in August, on his failure, the land be sold as the other tracts; the Tyger tract be sold separately by the commissioners at public sale on sale day in October or some other convenient sale day, to the highest bidder on credit of one or two years with interest from the day of sale, except so much as may be necessary to pay costs which will be paid at the time of sale; the money arising from the sale be laid over by the commissioners when received into the hands of the executor for distribution under the will of Henry Brock decd; the Tyger tract be sold in two parcels as recommended by the commissioners in their report, the one on the east side and the other on the west side of the road running from Thomas Bridges to Major Sparts? Goodletts.
"Reports of cases at law, argued and determined in the Court of Appeals of South Carolina, at Columbia, December, 1837; at Charleston, February, 1838; and at Columbia, May, 1838" by C.W. Dudley, State Reporter ("Dudley's Law Reports"), pgs.332 to 334 (California State Law Library, Sacramento, 1/2004)
P. E. DUNCAN v. JESSE MOON; Court of Appeals of South Carolina, Columbia; Dud. 332; May, 1838. (MAD: see Greenville Co. SC)
Tried before Mr. Justice GANTT.
This was a motion to set aside a non-suit. The facts of the case are so fully set forth in the opinion of the Appeal Court, as delivered by his Honor Judge O'Neall, that it is deemed unnecessary to add any other statement of them.
[Opinion] CURIA, per O'NEALL, J. This was an action of covenant upon the following instrument: "Georgia, Habersham county. Know all men by these presents, that I, Jesse Moon, have taken from T.W.A. Sumpter, sundry small promissory notes made by different individuals, as per memorandum exhibited, amounting in all to four hundred and twelve 49-100 dollars; the amount of said notes, when collected, is to be paid over to P.E. Duncan, and any loss which may be incurred in collecting the said notes, viz: whatever the nett receipts in money to the said Duncan may fall short of the four hundred and twelve 49-100 dollars, such loss is to be equally divided between the said Duncan and myself, or I am to be accountable to the said Duncan for one half of such nett loss."
A list of the notes, amounting to $412.49, under which was written an acknowledgment, signed by Sumpter, that he had transferred the same to Moon, and guaranteeing the ultimate payment, was given in evidence. It appeared from the testimony of Wood, that he was present when "the notes were given to Duncan," and that he understood they were given to secure a debt Sumpter owed Moon. A very small portion of the notes has been collected; the makers of the residue are insolvent, and so is Sumpter.
Upon this case the Judge below ordered a nonsuit, "particularly on the ground, that Duncan being no party to the covenant, could not maintain an action thereon."
It is necessary, first, to examine the ground on which the judge below rested his decision. Generally it may be laid down as a rule, that one for whose benefit a contact is made, may maintain an action upon it. As in the familiar case, where A pays money to B, for the use of C, -- there C may maintain an action against B, although he may have been at the time of the transaction ignorant of the whole matter. The contract before us, is an express undertaking to pay over the proceeds of notes received from Sumpter, to the plaintiff; and if there should be any loss from a failure to collect the notes, then that Moon would be accountable to the plaintiff for one half of "such nett loss." This, in both its parts, is not only a contract for the benefit of the plaintiff, but is an express covenant to him. How it can be said that he is no party to it, I am at a loss to conceive. For it is for his benefit; it is expressed in words covenanting to him; and it is found in his possession. These facts, to my mind, plainly show that he was a party to it, and Sumpter's name was only inserted in it to show from whom the notes were received, and thus to aid in identifying them.
But if authority be needed to sustain the plaintiff's action on this covenant, it will be found in the case of Allen vs. Brazier and Randolph, 2 Bail. 55. That action was on a covenant entered into by the defendants to Jos. McClintock, whereby they agreed to deliver to McClintock, agent for Allen (the plaintiff,) a certain slave, and failing to deliver the slave, to pay McClintock the sum of one hundred dollars. The action was brought to recover this sum by way of liquidated damages. The judge below nonsuited the plaintiff, on the ground that the defendants' contract was expressly to McClintock. The whole Court of Appeals concurred in setting aside the nonsuit, on the ground that the contract was manifestly intended to be for the benefit of the plaintiff.
On the argument of this case here, the nonsuit has been attempted to be sustained, on the ground that there was no sufficient proof to show to what notes the covenant alluded. The proof, I think, was enough for the jury and might have satisfied them. The covenant speaks of "sundry small notes" received from Sumpter, "as per memorandum exhibited, amounting in all to $412.49." The list under which is written Sumpter's acknowledgement and guaranty, corresponds with this description; for it shows that notes were received from Sumpter, that they were for small amounts, and the aggregate is the precise sum mentioned in the covenant. If the proof of identity had here stopped, I should not have felt myself warranted in taking the case from the jury. But a witness, Wood, said he was present when "the notes were given to Duncan, and that he understood they were given to secure a debt Sumpter owed to Moon." From the words "the notes" being used in a deposition in which the list of the notes had been proved, I take it that the witness meant to say he was present when the notes mentioned in that list were delivered to Duncan. Looking to the papers, and this testimony alone, we should conclude that he was present when Moon under his covenant delivered the notes to the plaintiff. But I presume from the facts, that Sumpter owed Moon a debt for a negro, that the notes were taken in payment for it, and that Moon and Duncan were to share the loss arising from a failure to collect -- that Moon had sold a negro which belonged jointly to himself and Duncan to Sumpter -- that Duncan himself received the notes in payment from Sumpter -- and that Moon entered into this covenant with him (Duncan) to share the loss, if there should be any, in attempting to collect the notes. This is a fair construction of the proof, and upon it surely the plaintiff is entitled to recover, if he has used due diligence to collect the notes.
The motion to set aside the non-suit, is granted.
B.F. PERRY, for the motion.
"Reports of cases at law argued and determined in the Court of Appeals and Court of Errors of South Carolina, from December 1838 to May 1839, both inclusive" by William Rice, State Reporter, Vol.I; ("Rice's Law Reports"), Vol.1, pgs.27 to 29 (California State Law Library, Sacramento, 1/2004)
PERRY E. DUNCAN v. GEORGE SEABORN and H. COBB, Ex'ors.; Court of Appeals of South Carolina, Columbia; 1 Rice. 27; December, 1838.
(MAD: headnote omitted here)
Before GANTT, J., at Greenville, Spring Term, 1838.
This was an action of assumpsit, to recover from the defendants, as Executors of Ransom Cobb, the proportion of debt for which the said Ransom Cobb was liable, as security, on a note, paid off by the plaintiff, Duncan, to William Choice, to which note Duncan alleged himself and Ransom Cobb to have been co-securities. In the investigation of this case, it became a primary question to ascertain who was the principal in the above note. The plaintiff alleged that James M'Daniel was principal, and the other signers securities. The ground of defence was, that Duncan, the plaintiff, was himself the principal, and being so, he had only paid off his own debt, and could have no recourse against defendants, to recover against them.
The jury found for defendants. Thomas M'Daniel was the first signer to the note. The presiding judge overruled the offering in evidence the declarations of M'Daniel, that he was the principal.
The plaintiff now moves for a new trial on the following grounds: -- 1. Because, his honor, the presiding judge, refused to permit the plaintiff to offer in evidence the declarations of James M'Daniel (who is dead), that he, M'Daniel, was the principal in the note to Choice, and that Duncan and others were his securities. 2. Because, his honor decided that the declarations of the principal in a note -- although he is dead -- could not be given in evidence on a trial between his securities to the note. 3. Because, the verdict of the jury was contrary to law and evidence.
[Opinion] CURIA, per EARLE, J. The declaration of M'Daniel, one of the makers of the note, and whose signature was the first of them, was offered in evidence on the trial -- he being then dead -- to prove that he was the principal in the note, and that the other persons who joined in it were his co-sureties. To decide whether it was competent and admissible, it will only be necessary to inquire, within what description of evidence will it be classed? The argument of counsel for the motion, seemed to place the competency upon the ground, that M'Daniel was not interested in the controversy between his securities, and that his declaration went to charge himself with the whole debt; therefore, if alive, he might have been examined as a witness. This view of the question presents it as one of hearsay evidence, in the broadest meaning. The well-settled rule, as old as the common law courts of justice, excluded such evidence -- except in particular cases -- for very obvious reasons. Such declarations are without the sanction of an oath, and, without cross-examination, the bare assertion of a particular fact; a narrative of something that has occurred, and not entitled to the respect or credit of a court of justice, as evidence. They do not come within any of the exceptions, which permit hearsay to go to the jury, as pedigree, prescription, custom, or boundary. Nor do they come within another class of cases, where such evidence is introduced, not as proof of a distinct fact, but as being, in itself, part of the transaction in question; such as the declarations of an occupant of land, on taking possession, of the nature of his title or tenancy; or, the declarations of a trader, on a question of bankruptcy, as to his motive for leaving home; and many other cases that might be put, of frequent occurrence, to illustrate this familiar exception to the general rule of hearsay evidence. Here, there is a mere naked offer to prove that M'Daniel said he was the principal in the note. His being dead does not vary the case; and, it is a conclusive answer to the proposition, that, if alive, he might have been examined as a witness. What a deceased witness has sworn on a former trial, between the same parties, on the same issues, is frequently admitted. But, I doubt if a case can be found, where such an attempt as this is reported to have been seriously made, unless in Gamons v. Barnard, 1 Anst., 298, where evidence of the declarations of a deceased tenant, of an act done by himself, was offered, in a suit concerning titles, and rejected. Ch. Baron M'Donald, remarking on the cases cited, said "the present attempt goes to establish that the declarations of a dead man are, in all cases, to be received."
The Circuit Court did not err in rejecting the evidence and the motion for a new trial is refused.
GANTT, RICHARDSON, O'NEALL, EVANS and BUTLER, Justices, concurred.
PERRY, for the motion.
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