Duncan research files of
1840 DeKalb Co. TN Census (taken by C.B. Duncan) Pg.231 Richard Duncan 2000,01 - 0000,1 234 Thomas W. Duncan 0001,1001 - 0000,1001 235 John Fite 0011,0001 - 0001,0001 Leonard Fite 0000,0000,001 - 0000,0000,001 Pensioner age 81 236 (totals) Leonard Fite, Pensioner, age 81, with John Fite (MAD: no Leonard Fite indexed as head of household in 1850 DeKalb Co. TN; 1850 Wilson Co. TN, pg.860, #1633, had Leonard Fite 64 NC, Elizabeth 56 DE, Lemuel 23; see 1820 Lincoln Co. NC) 241 Elijah Duncan 0000,0000,0001 - 0 Pensioner age 90 247 David Dunnam 1021,01 - 1120,01 276 M.J. Duncan 0010,1 - 0010,01
1850 DeKalb Co. TN Census
Page numbers are handwritten page numbers, not stamped
Pg.68, #499, Abby DAVIS 67 VA (blank) $0
Katherine 65 VA
(MAD: Looked for Abby Duncan Davis, dau. of Elijah Duncan Sr.)
Pg.131, #930, Richard DUNKAN 38 TN farmer $0
Ellapher 41 TN
James H. 15, Archibald D. 9 TN
Williamson G. 5, David 3 TN
(MAD: Smith Co. TN 1834; Wilson Co. TN 1846)
Pg.141, #1001 Thomas WHALEY 55 MD Clerk of Chancery $300
Henrietta 44 TN
Sterling 22 TN
(MAD: Thomas Whaley mar. Nancy Duncan 9/24/1818; Thomas Whaley mar. Henrietta Duncan 9/23/1829; per "Bible Records of Williamson Co. TN" by Lynch)
Pg.149, #1054 James M. VAUGHAN 23 TN farmer $0
Jane 19 TN mar/in/year
(MAD: not the James Vaughn who m. Lydia Kesler Fax ca 1845, of Coffee Co. TN)
1860 DeKalb Co. TN Census
Pg.165 (170), #1207-1195, Rachel DUNCAN 52 KY domestic $0-$100
Daniel 24 TN
Benjamin 21 TN idiotic
Rachel A. 16 TN
(MAD: widow of Daniel of 1850 Rutherford Co. TN census; 1870 Williamson Co. IL census)
1870 DeKalb Co. TN Census
No Duncan indexed
DeKalb Co. TN Marriage Records 1848-1866 (FHL film 593,050)
No Duncan found to 1850
DeKalb Co. TN Probate Book A, 1838-1854 (FHL film 593,056)
A-23/24: Elijah Dunkin will; of Smith Co. TN, of sound and disposing? mind and memory, make ... my last will and testament; first, to my beloved wife Cole my land and all my stock of any kind, horses cattle hogs and sheep and household and kitchen furniture and farming tools and every thing that I have only she shall pay all my lawful debts and she shall have all liberty to ocupy thereon as she shall think best and after her decease the property that remains shall be sold by the executor? my three daughters Nancy Barr, Abby Davis, Jane Vanatta? to have $50 each and Caty Owens to have $1 and my two sons Richard Elijah $1 each, and the balance to be equally divided between my two sons and daughters Nancey Barr, Abby Davis and Jane Vaneta and I do appoint Jacob Fite and Thomas Laurence executors of this my last will and testament heretofore revoking all previous wills by me made. In witness whereof I have hereunto set my hand and affixed my seal this 8th day of December 1833. Elijah (X) Dunkin. Signed, sealed, published and declared by Elijah Dunkin to be his last will and testament in presents of us, Attest, John Reynolds, Moses Fletcher. State of Tennessee, DeKalb County, January term 1841, a paper purporting to be the last will and testament of Elijah Dunkin deceased was presented in open court for probate ... in open court by the oath of John Reynolds (too blurred) witness ... who being ... sworn, depose and said that he was acquainted with Elijah Dunkin the testator and that he signed the said will in his presents by his request, and on motion ordered to be recorded ... first Monday in January 1841. (FHL film 593,056; SLC 12/2008)
A-41: 31 March 1843; will of Thomas W. Duncan of DeKalb Co.; wife Elizbeth H. Duncan 1/6 part; dau. Elizabeth S? Duncan 1/6 part & $200; son Cicero B. Duncan 1/6 part; son Andrew J. Duncan 1/6 part; son Erastus B. Duncan 1/12 part; grandson Thomas George McWhirter if lives to 21 1/6 part; executor be guardian of grandson; 1/12 part divided to five legatees taking 1/6 part; exec. son Cicero B. Duncan of Maury Co. Wit. Wm. McClain, John H. Fuson?, O. Fite. Proved July, 1843. (FHL film 593,056)
(MAD: Cicero B. Duncan will in Roane Co. TN; Thomas W. Duncan from Smith Co. TN; Erastus B. in 1850 Washington Co. AR, a Minister; Andrew J. in 1860 Davidson Co. TN; Elizabeth mar. W.J. Dale of Columbia; obit for Mrs. Elizabeth Duncan age 87, died at home of son W.J. Dale of Columbia, mother of A.J. Duncan of Nashville [Davidson Co.], in Nashville Union 7/21/1874, from "Historic Maury Co. TN" Vol.11, 1975)
Will Book, Smithville Courthouse, DeKalb Co. TN (Courthouse visit by MAD 10/1/1985)
Page 23-24 (24 on reverse of 23) missing from rebound will book A; wanted to see original copy of Elijah Duncan's will. Per County Clerk, no probate packets are in existence for this early time period.
DeKalb Co. TN Deed Index v.A-Z 1838-1925 (FHL film 593,058; SLC 6/14/2008)
Vol.1, 1838-1855; MAD: no first names given; no D grantees listed after Book C; Vol.A-B 1838-1845, Vol.C-D 1845-1853
A-520: Duncin to Laurbuson?
A-526: Duncan to Cunningham
A-641: Duncan to Daugherty
B-59: Duncans to Robinson
B-66: Duncan to Thomason
B-77: Duncan to Bailey
B-256: Duncan to Carithais (Carithars?)
A-232: Duncan from Brown
B-332: Duncan from Worford (Manford?)
B-421: Duncan to Jones
C-499: Duncan to Wirt
More Duncin, not copied; no index at front of book
D-444: Duncan to Overstreet
E-35: Duncan to Shurer
E-60: Duncan to Whaley
E-61: Duncan to Stark
E-218: Duncan to Dearman
DeKalb Co. TN Deed Index
Deed books, v. A-B 1838-1845
A-289: Fite to T.W. Duncan
B-521: Thomas W. Duncan to William Garrison - not book A, B, C
Deed books, v. C-D 1845-1853
D-78: Chancery Court to Thomas W. Duncan
D-376: Cicero B. exec. of Thomas to Bowers
D-387: Cicero B. exec of Thomas to Leonard F. Moore
Deed books, v. E-F 1853-1857
E-36: Commissioners to Thomas W. Duncan
E-51: Commissioners to Thomas W. Duncan
E-53: Commissioners to Thomas W. Duncan
E-302: Richard Newsom to A. Duncan (1854)
F-90: Cicero B. exec of Thomas W. to Brien & Savage - too dark to find
Deed books, v. G-H 1857-1861
G-427: Allapher Duncan to G.L. Bowers
G-452: C.B. Duncan exec. of Thomas W. to Thomas Whaley
DeKalb Co. TN Deeds (SLC 6/14/2008 and 5/4/2013)
Deed books, v.A-B 1838-1845 (FHL film 593,060)
A-232: 29 Jan. 1839, Rewbin Brown to John Duncan, $608, on Mine Lick Creek at the mouth, beg. on bank of the Cany Fork below the mouth of Mine Lick Creek, running up the river, crossing the creek, (more not copied), on N boundary line of a 640 acre survey granted to Joshua Davis, containing 380 acres, 255 acres of warranted land and 125 acres of school lands. Wit. W?. H.H. Allen, John Young. (FHL film 593,060)
A-289/291: 30 May 1839, Moses Fite of DeKalb Co. TN to T.W. Duncan of afsd, that Moses Fite is indebted to one Sanders P?. Martin for $548 by two notes for $274 and some cents, both dated 30 May 1839 and due 30 Feb. 1840, ... Sanders P. Martin is willing to wait 9 months longer ... sell tract of land containing by estimation 110 acres in afsd on waters of Smiths Fork whereon said Moses Fite now lives, ... adj. 640 acre tract owned by Sampson Williams, but if the two notes for $274 each are not paid before the expiration of nine months, said T.W. Duncan shall sell the land at public sale to highest bidder, but if the money should be paid, this is void. /s/ Moses Fite. Ack. 12 June 1839. Registered 14 June 1839. (FHL film 593,060; SLC 5/4/2013)
A-520: 10 Aug. 1840, Thomas W. Duncan of DeKalb Co. TN to Leonard Lamberson, $600, negro girl Silvey a slave for life about 12 years of age. Wit. R.A. Thomason, J.H. Savage. (FHL film 593,060)
A-526: 24 Sept. 1840, Thomas W. Duncan to J.Y. Cuningham, $5, slaves for life James about 15, Jasper about 7, Isaac about 3, trust deed, Thomas W. Duncan and son (unnamed) owe Sanders & Martin $1,060 by note due 1 Oct. 1841 (more not copied) this day executed note payable to Leonard Lamberson who has indorsed said note for our accomodation, in order to secure said indorser. Wit. Leml. N. Duncan, C.B. Duncan. (FHL film 593,060)
A-641: 6 April 1841, Thomas W. Duncan of DeKalb Co. TN to John R. Dougherty of Davidson Co. TN, $300, 1/2 acre in town of Liberty adj. Sarah Street on W, lot #23. Wit. Goldsby Blady, Elijah Whaley. (FHL film 593,060)
B-59: 7 Oct. 1841, Thos. W. Duncan and wife Elisabeth H. Duncan to A.B. Robinson, for $400, negro girl slave Marrah age between 10 and 12 years. Both signed. Wit. P.A. Theney, A.J. Duncan. (FHL film 593,060)
B-66: 9 Oct. 1841, Thomas W. Duncan to P.A. Thomasin, $400, negro girl slave Luan between 10 and 12 years old. No. wit. (FHL film 593,060)
B-77: 6 Jan. 1836, Thomas W. Duncan of Smith Co. TN to Samuel Baily, $600, 147 acres in county afsd on waters of Smith's fork, a branch of Cany Fork river, and on N side of said creek, adj. Sampson Williams. Wit. John Young, Brackett Coty. (FHL film 593,060)
B-256: 14 Nov. 1842, Thomas W. Duncan to Robert L. Caruthers, $700, negro man slave Jack and his wife Mary and her infant child. Wit. Amos Allison, Sam Caruthars. (FHL film 593,060)
B-332: Per January 1843 Chancery Court at McMinville, Warren Co. TN, case of George H. Raulson vs. Thos. Burgess & Ebenezer Wright, that 1 Feb. 1842, debt, (MAD: not copied) 1/2 acre in DeKalb Co. was to be sold to pay debt, sold 31 March 1842 to Thomas W. Duncan for $3.00. /s/ J.Y. Worford, clerk. (FHL film 593,060)
B-421: 16 Feb. 1844, Cicero B. Duncan, exec. of Thomas W. Duncan decd of Maury Co. TN, to Frederick Jones of DeKalb Co. TN, $1500, 4 parcels in DeKalb Co. TN on waters of Smith's Fork: (1st) tract on bank, corner lot 26, in plain view of Town of Liberty, being 25 acres; (2nd) tract joining where Adam Dale formerly lived, being part of 274 acres granted to Williams, corner between T.W. Duncan and L. Lamberson, corner of 5 acres sold by A. Dale to Nancy Green?, being 40 acres; (3rd) part of Town lot in Liberty on W. side Main St. opposite the tavern formerly occupied by Thos. W. Duncan, to include the house where David Fite formerly kept store; (4th) parcel in Co. of DeKalb being 4 town lots in Lyberty known as #31, #32, #33, and #34 on East side Main Street, called Sarahs Street, being the lots Thos. W. Duncan formerly resided on. Wit. W.J. Dale, Evan Young. (FHL film 593,060)
B-521: Thomas W. Duncan to William Garrison - not book A, B, C (from pg.56, "Land Deed Genealogy of DeKalb Co. TN 1838-1869" by Thomas E. Partlow, FHL book 976.8532 R2p, the deed was from Thomas W. Duncan of Smith Co. to William Garrison, 15-1/4 acres in 2nd Dist., 28 Feb. 1843.)
Deed books, v.C-D 1845-1853 (FHL film 593,061)
C-499: 2 Sept. 1846, C.B. Duncan, exec. of Thos. W. Duncan decd, to Mathias S. West, $20, 6 acres, small tract of land adj. said West tract (known as) Grant 4209, adj. H. Hays, Williams' 640 acre tract. Wit. M.D. West, S.A. West, M.T. West. (FHL film 593,061)
D-78: Decree in Chancery at McMinville to 7-1/2 acres of land near Liberty to Thomas W. Duncan. That at the July term 1842, a decree was rendered ... George W. Rolston vs. John Burgess & Ebenezor Wright, exposed at public auction 7-1/2 acres of land on credit of 12 months, was advertised and on 31 March 1842 at public sale, Thomas W. Duncan for $3, the best bidder, this a deed to confirm the title to the land be vested in the purchaser Thomas W. Duncan ... /s/ J.F. Norford. Entered in book A page 134 on 15 Feb. 1850, registered Book D page 78 on 22 Feb. 1877. (FHL film 593,061; SLC 5/4/2013)
D-376: 20 Sept. 1851, Cicero B. Duncan, executor of Thomas H. Duncan decd, sold for $30, to John J. Bowers, parcel of land adj. NE corner of Lot No.1 in town of Liberty owned by said Bowers, then ... Leonard Lamberson's line, containing about 4 acres more or less, warrant title. /s/ C.B. Duncan Executor of Thomas W. Duncan decd. Wit. Thos. D. Price, Wm. Blackburn. Proved by witnesses 20 April 1852. Registered 23 April 1852. (FHL film 593,061; SLC 5/4/2013)
D-387: Sept. 20, 1851, Cicero B. Duncan, executor of Thos. Duncan decd, to Leonard F. Moore, for $10, one town lot in town of Liberty, Lot No.10 containing about 1/12 acre, warrant title. /s/ C.B. Duncan, executor of Thomas W. Duncan decd. Wit. John F. Moore, J.W. Gorman??, proved on oath of wit. 28 April 1852. Rec. 30 April 1852, registered 5 May 1852. (FHL film 593,061; SLC 5/4/2013)
D-444: 12 Dec. 1852, Cicero B. Duncan, exec. of Thomas W. Duncan decd, to Catharine R. Overstreet, $50, Lot #16 in town of Smithville, being the lot bargained to William Overstreet. Wit. Eli H.H. Koopman, Jerome Pitchard. (FHL film 593,061)
Deed books, v.E-F 1853-1857 (FHL film 593,062)
E-36/37: 14 June 1838, Joseph Clark, Thomas Allen, Joseph Banks, Watson Cantrell and Thomas Durham, Commissioners appointed by County Court of DeKalb at May term 1838, ... all of DeKalb Co. TN, to Thomas W. Duncan of afsd, for a note by Thomas W. Duncan and his sureties, to wit, William W. McWhirter for $180 payable 12 months after date & dated 14 June 1838, sell to said T.W. Duncan a Town Lot in Town of Smithville in DeKalb Co. TN known as Lot No.54 containing 5520 square feet, provided it shall stand bound to the commissioners until the purchase money shall be paid, that is, $180, warrant title. /s/ Joseph Clark, Thos. Allen, Joseph Banks, Thomas Durham, Watson Cantrell, Commissioners. Wit. Henry Hart, Enoch Lockhart and John Frazer. Proved on oath of John Frazer, and Thomas Whal? who knew the handwriting of Henry Hart and that Hart is dead and Enoch Lockhart the other witness is supposed to be a non-resident of this state. Recorded 27 June 1853. (FHL film 593,062; SLC 5/4/2013)
E-51/52: 14 June 1838, Joseph Clark, Thomas Allen, Joseph Banks, Watson Cantrell and Thomas Durham, Commissioners appointed by County Court of DeKalb at May term 1838, ... all of DeKalb Co. TN, to Thomas W. Duncan of afsd, for a note by Thomas W. Duncan and his sureties, to wit, William W. McWhirter for $97 payable 12 months after date & dated 14 June 1838, sell to said T.W. Duncan two Town Lots in Town of Smithville in DeKalb Co. TN known as Lots No. 19 & 89 containing ?? square feet, provided it shall stand bound to the commissioners until the purchase money shall be paid, that is, $97, warrant title. /s/ Joseph Clark, Thos. Allen, Joseph Banks, Watson Cantrell, Thos. Durham, Commissioners. Wit. Wm. B. Stokes, John Frazer; proved on oath of witnesses, 3 Aug. 1853. Recorded 5 Aug. 1853. (FHL film 593,062; SLC 5/4/2013)
E-52/53: 14 June 1838, Joseph Clark, Thomas Allen, Joseph Banks, Watson Cantrell and Thos. Durham, Commissioners appointed by County Court of DeKalb at May term 1838, ... all of DeKalb Co. TN, to T.W. Duncan of afsd, for a note by Thomas W. Duncan and his sureties, to wit, William W. McWhirter for $58 payable 18 months after date & dated 12 June 1838, sell to said T.W. Duncan two Town Lots in Town of Smithville in DeKalb Co. TN known as Lots No. 74 & 83 containing 21780 square feet, provided it shall stand bound to the commissioners until the purchase money shall be paid, that is, $58, warrant title. /s/ Joseph Clark, Thomas Allen, Joseph Banks, Watson Cantrell, Thos. Durham, Commissioners. Wit. Wm. B. Stokes, John Frazer; proved on oath of witnesses, 3 Aug. 1853. Recorded 5 Aug. 1853. (FHL film 593,062; SLC 5/4/2013)
E-53/54: 14 June 1838, Joseph Clark, Thomas Allen, Joseph Banks, Watson Cantrell and Thos. Durham, Commissioners appointed by County Court of DeKalb at May term 1838, ... all of DeKalb Co. TN, to T.W. Duncan of afsd, for a note by Thomas W. Duncan and his sureties, to wit, William W. McWhirter for $63 payable 18 months after date & dated 14 June 1838, sell to said T.W. Duncan two Town Lots in Town of Smithville in DeKalb Co. TN known as Lots No. 59 & 78 containing 5930 square feet, provided it shall stand bound to the commissioners until the purchase money shall be paid, that is, $63, warrant title. /s/ Joseph Clark, Thomas Allen, Joseph Banks, Watson Cantrell, Thos. Durham, Commissioners. Wit. Wm. B. Stokes, John Frazer; proved on oath of witnesses, 3 Aug. 1853. Recorded 5 Aug. 1853. (FHL film 593,062; SLC 5/4/2013)
E-302: 6 Feb. 1854, Richard Newsom sold to A. Duncan for $75 paid, a lot of land in DeKalb Co. TN Dist. No.1 containing by estimation 2 acres more or less, commencing at Huddleston's S corner ... to Wm. Writes line, ... warrant title. /s/ R. Newsom. Ack. 19 Dec. 1854, Registered 29 Dec. 1854. (FHL film 593,062; SLC 5/4/2013)
F-90: Cicero B. exec of Thomas W. to Brien & Savage - too dark to find (from pg.159, "Land Deed Genealogy of DeKalb Co. TN 1838-1869" by Thomas E. Partlow, FHL book 976.8532 R2p, the deed was from Cicero B. Duncan, exec. of Thomas W. Duncan, to Brien & Savage, 500 acres on Snow's Hill, 4 March 1856.)
Deed books, v.G-H 1857-1861 (FHL film 593,063)
G-427/428: 7 Sept. 1857, Allapher Duncan sold to G.L. Bowers for $100 paid, parcel of land in DeKalb Co. TN, District No.1, adj. town of Alexandria, containing by estimation 2 acres more or less, on the Lebanon and Sparta turnpike road, Huddleston's SW corner, to Bower's line, Wm. Wright's line, warrant title. /s/ Allapher (X) Duncan. Wit. Wm. H. Davis, C.J. Bailiff. Ack. by witnesses, Oct. 11, 1859. Recorded 12 Oct. 1859. (FHL film 593,063; SLC 5/4/2013)
G-452: 7 June 1853, C.B. Duncan executor of Thomas W. Duncan decd, sold to Thos. Whaley for $27.25 paid, a town lot in town of Smithville, DeKalb Co. TN, known as Lot No.19, warrant title. /s/ C.B. Duncan, Executor of Thos. W. Duncan deceased. Wit. W.W. Wade, P. M. Wade. Ack. by C.B. Duncan 10 Nov. 1859, recorded 10 Nov. 1859. (FHL film 593,063; SLC 5/4/2013)
"Reports of cases argued and determined in the Supreme Court of Tennessee for the years 1871-2" by Joseph B. Heiskell, Vol.III; Tennessee Reports, Vol.50, pgs.534 to 544 (California State Law Library, Sacramento, 2/2004)
ELIZABETH GARRETSON v. M. M. BRIEN, et als; Supreme Court of Tennessee, Nashville; 50 Tenn. 534; 3 Heisk. 534; February 8, 1871, Decided.
Chancery Court at Smithville, September Term, 1867, before B. M. TILLMAN, Ch.
NELSON, J., delivered the opinion of the Court.
On or about the 3d of Dec., 1843, Manson M. Brien purchased of Cicero B. Duncan, executor of the last will and testament of Thos. W. Duncan, he having full power and authority under the will to make the sale, four several tracts of land in DeKalb county, described in the pleadings, and containing about five hundred acres. Duncan, the executor, executed to Brien a title bond binding himself to convey when the purchase money should be paid. Brien afterwards sold the land to B. F. Browning, for whom he, probably, made the purchase, and executed to him a similar title bond. The purchase money was fully paid by Browning to Brien, and by Brien to the executor, and the parties had it in contemplation that a deed should be executed from the executor, directly, to Browning, but this was prevented by the death of Browning, which occurred between the date of his will, 17th of November, 1846, and the time of its probate, 4th of January, 1847. Browning was an unnaturalized foreigner. He died without heirs, but left a widow, Lucinda, who, having dissented from his will, filed a petition for dower, in the Circuit Court of DeKalb, on the 5th of February, 1848, and obtained a decree on the 7th of October, 1848, assigning her as dower, one hundred acres, with the mansion house. The costs of the application for dower, amounting to $47.62 1/2, were adjudged against her, and execution issued therefor on the 22d of November, 1848. No personal property being found, the execution was levied 22d of November, 1848, on the dower tract, which was sold, at public sale, 5th of February, 1849, and purchased by A. M. Savage, at the price of ten dollars. By the direction of Savage, the land was conveyed by E. W. Taylor, successor of the former sheriff, to A. M. Savage and M. M. Brien, by deed, bearing date 18th of August, 1852, and duly registered on the same day. Savage afterwards died and M. M. Brien, on the 22d of October, 1859, executed a deed of gift for his interest in the land, to the children of Savage; which does not appear to have been formally proved and registered, but as to the execution of which there is no controversy.
In the meantime, on the 24th of February, 1865, this bill was filed by Thos. C. Wroe and his wife, Lucinda, formerly Lucinda Browning, against M. M. Brien, A. M. Savage, Cicero B. Duncan, and A. J. Duncan, to enjoin an action of ejectment, which had been brought by Brien and Savage, on the 30th of December, 1854, against J. M. White and others, to recover the dower interest, as well as other lands owned by Browning, at the time of his death. It is charged in the bill that, situated as it was, the dower interest was not the subject of levy and sale, and could not be sold by an execution at law; that the title bond of Browning had been lost or mislaid, or was in possession of Brien; that complainants are entitled to the land under an act of Assembly of this State; that Brien and Savage had fraudulently combined and confederated together, to defeat them of their just rights; had procured the execution of the sheriff's deed, and had brought an action of ejectment for the recovery of the land, the prosecution of which complainants pray may be perpetually enjoined, &c.
To this bill, the defendants pleaded, first, that the one hundred acres had been sold, as aforesaid, at sheriff's sale; and, second, that the remaining four hundred acres had been sold under a decree of the Chancery Court, at the suit and instance of Stephen H. Colmes, and purchased by one Malone; that more than two years had elapsed since the making of said sale, and the time of redemption had expired; and, that complainant had no title to said lands. Complainants filed a replication to said plea, and the defendants afterwards filed separate answers, the details of which it is unnecessary to state here, as several of the points relied upon were obviated by the agreement set out in the bill of exceptions.
It further appears that S. H. Colmes filed a bill against Thos. C. Wroe and others, and that, on the 27th of March, 1855, a decree was pronounced in said cause, confirming a sale made therein, by the Master, and vesting the title to all of said lands in Thomas Malone, the purchaser, excepting the dower interest of the said Lucinda. By said decree, all the right, title, claim and interest of the heirs and executors of Thomas W. Duncan, deceased, and of Manson M. Brien, in said lands, were divested out of them and vested in Malone, to the extent of the interest purchased by him; and, in the said Lucinda, in fee, and to her sole, separate, and exclusive use, to the extent of the dower tract.
Without detailing intermediate proceedings, it may be stated that this cause was before this court, at a former term, and that a decree was pronounced therein, on the 7th of December, 1856, remanding it to the Chancery Court at Smithville, to the end that proper parties might be made and such proceedings had as might he necessary to the determination of the question, whether the property "of intestate Browning," in the pleadings mentioned, did not escheat to the State.
A bill was, thereupon, filed, by Tim. H. Williams, Attorney General for the fourth circuit, in the name of the State, against all the parties in interest, and claiming that the lands, with the exception of the dower interest, had escheated to the State, and that the title thereto should be divested out of all the other parties. A decree was pronounced in that cause, 23rd of September, 1859, dismissing the bill; from which an appeal was prayed and granted; but the appeal having been abandoned, a final decree was pronounced therein on the 23d of March, 1860, by which the cause was stricken from the docket at the cost of the State.
After the death of Browning, and before the commencement of the suit by Colmes, an act was passed by the General Assembly of this State, on the 10th of January, 1850, c. 54, pp. 162, 163, by which it was declared that when any person should die thereafter, intestate, leaving no heirs at law, capable of inheriting real estate under the laws of Tennessee; but leaving a widow, then, and in that case, the widow shall be entitled in fee simple, to all the real estate of which her husband died, seized and possessed, but subject to the payment of his just debts, in the same way and to the same extent that real estate was then liable. By the second section of said act, it was declared that its provisions should "be extended to and embrace all cases in which persons may have heretofore died intestate, as mentioned in the first section of this act, as well as those who may hereafter die intestate, and for the recovery of such real estate, suits have not been brought, or if brought, have not yet been determined." And it was directed, in section 3, of said act, that "in all cases in which any of the Attorneys General of this State may have brought suit for the recovery of any real or personal estate, which may have been escheated to the State, under the laws of this State," &c., "the said Attorneys General, respectively, are hereby authorized and required to dismiss such suits," at the costs and expenses of those who, "by the provisions of this act, take such estate."
This act was, incidentally, noticed by this court in the case of Puckett v. The State, 4 Sneed 359, 360, and its provisions were declared to apply only to widows who were living at the time of the passage of the act, and not to the heirs of a widow who had died previously; but it was not determined whether the provisions of the first and second sections were subject to constitutional objections. The question, the consideration of which was thus waived, is supposed to arise upon that part of the act of 1827, chap. 64, sec. 1, which declares, among many other things, that "all escheats which shall hereafter accrue in this State, shall be appropriated to the encouragement and support of common schools forever," as well, perhaps, as upon other statutes, and upon a clause in the Constitution of 1834, art. 11, sec. 10, declaring, among other things, that all "property of every description whatever, heretofore, by law, appropriated by the General Assembly of this State, for the use of common schools, and all such as shall hereafter be appropriated, shall remain a perpetual fund," &c., for the support and encouragement of common schools, &c., and "no law shall be made authorizing said fund, or any part thereof, to be diverted to any other use," &c. But no question has been discussed before us as to the validity of the said act of 1850; and, as it was declared in Puckett v. The State, 1 Sneed 358, that "upon the death of the owner of real estate, intestate, without heirs, the title vests, directly, in the State, by operation of law," and not in the Board of Common School Commissioners; and that, "if the property be adversely held, an action for its recovery can, alone, be maintained in the name of the State;" and, as the suit, brought by the State for the recovery of the lands involved in this litigation, was abandoned, we hold that, under and by virtue of the act of 1850, the title to the lands in the bill mentioned, was absolutely vested in Lucinda Browning, the widow of B. F. Browning -- he not having disposed of the lands by his last will and testament, and having, as to them, died intestate. This would now, owing to the lapse of time, be most clearly the result, if any title were asserted, as it is not, in common schools.
The dower, which was allotted to the widow, out of said lands, was not the subject of levy and sale under an execution at law, and no title was vested in Brien and Savage by the sheriff's deed of 19th of August, 1853, in consequence of the dower interest having been struck off to Savage, at the price of ten dollars, at the sheriff's sale, on the 5th of February, 1849.
Where the husband dies, seized and possessed in fee, of lands, and his widow is endowed of them, there can be no question that her estate in dower is a legal estate which may be levied upon and sold for her own debt, under an execution at law, as well as any other legal estate. But where the husband, at the time of his death, has an equitable title, only, to the land, and the widow is endowed of the equitable estate, her dower, in such a case, is an equitable interest only, and can not be reached by execution at law. Ever since the case of Combs v. Young, 4 Yer. 218, it has been the settled law of this State, that an equitable interest in land is not subject to execution.
A widow was not dowable, in this State, of an equitable estate, until the common law was changed, by legislative enactment in 1823: Baker v. Heiskell, 1 Cold. 642. She had no interest, therefore, which an execution at common law could reach, nor was her interest leviable under any of the provisions of the Code: 3026 to 3037.
The deed of 19th September, 1851, from C. B. Duncan executor, to M. M. Brien and A. M. Savage for 500 acres, more or less, is equally unavailing as a defense. In the answer of Brien, sworn to and filed 3d September, 1850, to Colmes' bill, it was admitted, distinctly and explicitly, that he had no legal or equitable title to the land; that Browning had paid the purchase money; that he and Brien had agreed that the title should be made directly from Duncan to Browning, and that this was prevented by Browning's death. Moreover, Brien proposed in that answer to produce Duncan's bond on the hearing, if required, and a letter from Duncan was filed as an answer, in which he admitted that Brien had paid him the purchase money, and stated that he had been willing ever since to make the title. Under these circumstances, if Browning had lived, he could have filed a bill successfully to compel a specific performance of the contract. His widow, standing in his shoes, had the same right, and the decree in Colmes' case, of 27th March, 1861, vesting the title to 400 acres in Malone, and to 100 acres in Lucinda Rowe, was perfectly correct.
The Duncans, as well as Brien, were defendants to that suit, and bound by the decree. The deed, therefore, of 19th September, 1861, from Duncan to Brien and Savage, was executed lis pendens, in violation of the solemn admissions in Brien's answer. Brien and Duncan had actual, and Savage presumptive notice of the suit, and the deed was void. The answers to the twelve searching interrogatories propounded in the bill in this case, are vague and indefinite; the deed, ultimately made by Duncan, was merely a quit claim deed; and it does not appear from the record that the title bond from Brien to Duncan ever was filed; but it is needless to make any comment on the circumstances further than to observe that they place the correctness of the conclusion as to the invalidity of the deed to Brien and Savage, beyond any possible doubt.
In the progress of this cause, the deaths of complainants, Wroe and wife, and of the defendant A. M. Savage, were suggested and admitted, and the case was properly revived on both sides. It appears that, in the action of ejectment, Brien and Savage claim title to 4,000 acres of land granted to A. J. and Isaac Overall, on the 25th July, 1842, and by them conveyed to M. M. Brien by deed, bearing date 11th October, 1844. How much of the 500 acres purchased of Duncan, is embraced in said grant and deed, does not appear? but let the title to the 100 acres be vested in fee in Elizabeth Garritson, and let the defendants be perpetually enjoined from prosecuting any suit at law or in equity for the recovery of the said 500 acres, more or less, or any part thereof.
In all other respects, let the Chancellor's decree be affirmed, save only that the costs of this cause, in this court, and the court below, shall be paid by the defendants, as also the costs of the action of ejectment.
ELIJAH DUNCAN, Rev. Pension Application S-3309 (FHL film 970,863)
Born April 1757 in Fairfax Co. VA; died 14 Dec. 1840 Smith Co. TN. Lived in Caswell Co. NC in 1777. He was a pvt in the Continental Army commanded by Capt. Wilson of 10th Regt., under Co. Lytle, NC. Enlisted in Caswell Co. NC for 3 yrs served 18 mo's himself and the balance of time served by a substitute. Heirs, living in 1840: no widow, Elijah Duncan, Jane Kimbil, Nancy Ban, Catherine Oweing, Abby Davis, Richard Duncan. John Davis of Virginia had the family Bible giving age of Elijah Duncan. Elijah "lived in Caswell Co. NC when he enlisted in 1777, lived in Rutherford Co. NC for some time, thence to Smith Co. TN for about 26 yrs" statement 15 Oct. 1833. Witnesses Jacob Fite, Augustine Robinson, Rev. John J. Bennett, Thomas Terry. Jonathan Fuson adm. of estate.
Click here for more from the pension application file.
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, James H., widow Duncan, Sarah J.; D 11 KY Inf.; 1863 May 29, Widow Appl. #22914, Cert. #29942. (MAD: mustered in at Calhoon, McLean Co. KY; d. 1/20/1862 at Calhoon, KY; 1850 DeKalb Co. TN, 1860 Butler Co. KY)
Maury Co. TN Deeds (FHL film 549,250; SLC 5/7/2013)
2A-214: 15 Nov. 1843, William J. Dale for love of my mother Elizabeth H. Duncan, convey to said Elizabeth H. Duncan my interest to a lot in the town of Liberty, Decalb Co. TN, containing 1 or 2 acres, which was occupied as a tavern by my step father Thomas W. Duncan in his lifetime for 20 or 30 years and now in the possession of the said Elizabeth H. Duncan and which was willed to said Elizabeth H. Duncan by Thomas Dale my father to be held by her during her lifetime and at her death to myself and my brother Thomas S. Dale, bounded on the west by the turnpike road or main street, on the south by a lane, on the east by the margin of said town and on the north by a lot purchased of John Phillips by said Thomas W. Duncan, I have a good right to convey as afsd. /s/ William J. Dale. Wit. C.B. Duncan, Thos. B. Smith. Ack. 18 Nov. 1843. Registered Jany. 30, 1844. (FHL film 549,250)
2A-215: 5 Dec. 1843, Thomas S. Dale for love of my mother Elizabeth H. Duncan, convey to said Elizabeth H. Duncan my interest to a lot in the town of Liberty, Decalb Co. TN, containing 1 or 2 acres, which was occupied as a tavern by my step father Thomas W. Duncan in his lifetime for 20 or 30 years and now in the possession of the said Elizabeth H. Duncan and which was willed to her by my father Thomas Dale to be held by her during her lifetime and at her death to myself and my brother William L. Dale, bounded on the west by the turnpike road or main street, on the south by a lane, on the east by the margin of said town and on the north by a lot purchased of John Phillips by said Thomas W. Duncan, I have a good right to convey as afsd. /s/ Thos. Smith Dale. Wit. D.L. Rickards, Jos. B. Marks. Ack. 5 Dec. 1843 before Joseph Benjakin Marks, Notary Public, New Orleans, LA. Registered Jany. 30, 1844. (FHL film 549,250)
AA-229/230: 29 Jan. 1844, Elizabeth H. Duncan of Maury Co. TN to Cicero B. Duncan executor, of county and state afsd, for $800 paid, convey to said Cicero B. Duncan executor of the estate of Thos. W. Duncan decd all my interest to a lot or parcel of ground in town of Liberty, DeKalb Co. TN, known as the late residence of said Thos. W. Duncan, occupied by him as a tavern stand, beg. on the corner of Main Street and Taning? alley, ... line of Lot No.33 and 24 to Main Street, ... containing by estimation one acre more or less, known as Lots 32 and 35, warrant title. /s/ Elizabeth H. Duncan. Wit. Thos. Smith Dale, Wm. S? Dale. Ack. by Thos. Smith Dale and Wm. L. Dale, witnesses, 8 Feb. 1844. Registered Feb. 12, 1844. (FHL film 549,250)
Smith Co. TN Chancery Court Minutes, Vol.5, 1837-1842 (FHL film 319,184)
5-416 to 422: Allen vs. Duncan, et al; the bill of complaint of Wm. H. Allen, a creditor of Decalb Co. TN, vs. Susannah Duncan, widow and relict of John Duncan decd, Lylborn Chandler & wife Nancy (formerly Nancy Duncan) citizens of Smith Co. TN, George Gregston and his wife Catherine (formerly Catherine Duncan), Richard M. Duncan, Elizabeth Duncan, Joseph E. Duncan, Jesse A. Duncan, John L. Duncan, Winney Duncan, Sarah H. Duncan, Licetty Duncan, Cary R. Duncan, Sarah Moore, William R. Moore, citizens of Smith Co. TN, Martha Moore, John Moore, citizens of Sumner Co. TN; that sometime in 1839 John Duncan purchased land in Decalb Co. TN, from one Reuben Brown for $610 and paid $200 and gave notes for the balance, due said Brown on 1 Aug. 1849 (1841?), one for $110, the other for $300 payable to said Brown or Bird Billings?, the orator [Wm. Allen] became security for said Duncan for the payment of $400; Brown made a deed in fee simple for the land to John Duncan, who shortly afterwards took possession by remaining upon the land. Some time in October 1839 Duncan died intestate, leaving said Susannah his widow and Nancy who had married Lilbourn Chandler, Catherine who had married Geo. Gregston, Rich. M., Elizabeth, Joseph E., Jesse A., John L., Winney, Sarah H., Licetty, and Cary R. Duncan his children, and Sarah, Martha, John and William R. Moore, 4 grandchildren, the offspring of Mary Moore a deceased dau. of intestate, his heirs at law, in whom your orator is informed the title to the land vested upon the death of said John Duncan ... the land on the bank of the Cany Fork below the mouth of mine, ... creek, then up the river south east, crossing the creek, then ... north up the bluff with the fence, adj. ?Isham Davis?, containing 380 acres (too faint) John Duncan, and widow Susannah (was administrator). John Duncan has no other assets to pay the debt; request that the tract of land be made liable for payment of the balance of the purchase price; that the minors by their guardians ... that subpoenas be issued for them to answer the complaint; that a lien be attached to the land for payment of the balance. That ten of the defendants are minors within 21 years of age and have no guardian, viz, Jesse A., John L., Winney, Licetty, Sarah H., and Cary R. Duncan and also Martha and Sarah, John and William R. Moore, petition to court to appoint a guardian or guardian at litum. Answer filed Aug. 1840, by Susana Duncan, Lilborn Chandler, Nancy Chandler, George Gregston and Catharine, Richard M. Duncan, Elizabeth Duncan, Joseph E. Duncan, Licetty Duncan, Cary R. Duncan, Jesse A. Duncan, John L. Duncan, Winney Duncan, Sarah Duncan, Sarah Moore, William R. Moore, Martha A. Moore and John Moore; it is true that John Duncan purchased the land as charged and made the payment and executed his notes, which notes they also admit are due, and admit that the personal estate will not be sufficient to pay the debts; Susannah admits that she is the widow of said John Duncan, and the other defendants admit they are the chidren and heirs at law; wit. Hosea Stamp, Jeremiah Freeland?; that the admission will promote the interest of the minors to dispose of the land. Bond of William Allen, security Henry B. McDonald?, to Susanah Duncan, that William Allen will prosecute the suit, 4 Aug. 1840; Power of attorney 31 July 1840 by Wm. Allen to Henry B. McDonald? to sign his name on the suit. Decree by court, the case heard 10 Feb. 1841, that the Clerk & Master pay to complainant William H. Allen the amount of his debt ....
1915 "History of DeKalb Co. TN" by Will T. Hale (from Evelyn Sigler 11/1983 and Bette Sue McElroy 8/1986)
Pg.22: 1797: Adam Dale came from Maryland; he arrived soon after Josiah and T.W. Duncan came.
Pg.25: Thomas Dale's probable sons were Adam and William Dale. Josiah Duncan m. a daughter of Thomas Dale; Thomas Dale a Revolutionary Soldier from Maryland. Josiah Duncan owned land one mile south of Liberty. Thomas Dale, b. March 5, 1755, d. June 6, 1812.
Pg.110: Taverns at Liberty ca 1815: The pioneer, Josiah Duncan, had the Duncan Tavern built. It was conducted by his son T.W. Duncan. Some of the Duncans came from Maryland, moved to Nashville. Of the Duncans who left Liberty, I believe, the one to become best known was Cicero.
Pg.93: Among the early citizens of Alexandria was Rizer Duncan.
Pg.113: 1846: A stock company built a large tavern at Smithville. In 1852 it incorporated among holders, who included Wm. A. Duncan.
1887 "History of TN; Coffee, DeKalb, Cannon Cos." by Goodspeed (TN Gen. Society Library #2933 from Evelyn Sigler 12/1983)
Pg.847, DeKalb Co.: Colony founded at Smith Fork in the Vicinity of the present (1887) town of Liberty, by Adam Dale in 1797. Two years later a colony of his friends and relatives left Maryland to settle there, including ... Thomas Duncan ... (about 40 families).
1888 "History of Southeast MO ... Counties of Ste. Genevieve, St. Francois, Perry, Cape Girardeau, Bollinger, Madison, New Madrid, Pemiscot, Dunklin, Scott, Mississippi, Stoddard, Butler, Wayne and Iron" by Goodspeed (from Sue Monaghan 2/1988)
Pg.1070, Butler Co. Byrd Duncan, of the firm of B. Duncan & Co., is a native of Wilson Co. TN, born July 20, 1846. His father, Richard M. Duncan, also a native of TN, was of NC ancestry, while his wife, Miss Alapher Breece, was a native of the same State but of British stock. Father was a stonecutter by trade, about 1859 engaged in the business near Bowling Green [Warren Co.], KY. With the opening of the war he moved to Shawneetown [Gallatin Co.], IL, where the mother died in 1870 at age 62. He still lives there at age 76. Now a Republican, earlier a Whig. Both parents Baptist. Byrd, youngest of seven children, common school education, age 16 began brick-layer's trade, for about 7 years. To Wayne Co. MO 1873, clerk, until to Poplar Bluff [Butler Co.] in 1878; then he became a member of the firm of B. Duncan & Co. with Pat Harmon. ... In 1879 he married Miss Mollie Spence, native of Butler Co. Have two sons and two daus. (not named). (MAD: Richard M. in DeKalb Co. TN 1850; son of John d. Smith Co. TN.)
1889 "Biographical & Historical Memoirs of Northeast AR" by Goodspeed (Memphis Public Library book 976.79 G615, extract from Evelyn Sigler 9/1983; also Carmichael, CA, Library)
Pg.738, Sharp Co.: James P. Cochran, of firm of J.P. Cochran & Son, general merchants & dealers in farming implements, born in DeKalb Co. TN in 1832. His parents were William T. and Jane K. (Duncan) Cochran of Smith and DeKalb Co. TN respectively, being married in the latter place. The parents moved to Dresden, Weakley Co. TN, when James was very young, and resided there until their decease, Mr. Cochran dying in 1862 and his wife several years after their arrival. The elder Cochran was a tailor and clothier, and later in life established general merchandise store. ... He fought in one of the Indian Wars and was a member of the IOOF. His father, Henry Cochran of Scotch-Irish descent, died in Smith Co. TN where he had resided for a great number of years. The mother of James P. Cochran was member of the Christian Church and died in that faith. Her father, Josiah Duncan, was an old resident of DeKalb Co. TN where he died. James P. Cochran is eldest of two sons and three daughters. He was educated at Dresden Academy (TN) ... married in 1857 to Julia, daughter of David and Harriet Shaver, natives of TN, where Mr. Shaver died when his daughter was very young. The mother afterward moved to Sharp Co. where she died a few years later. Mrs. Cochran's death occurred on 27 Dec. 1866, she was the mother of one son and one daughter. Mr. Cochran was again married on Jan. 10, 1870, to Miss Martha M. Shaver, sister of his first wife, this lady dying March 23, 1886. In 1861 moved to Salem, 1865 appointed clerk of Fulton Co., 1866 re-elected, held office 3 years; to Sharp Co. 1869, 1872 elected clerk of Sharp Co., 4 years.
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