Duncan research files of
Washington Co. TN Court Minutes, Book 1852-1858, (from Bobbie McDowell; George Duncan's notes)
Pg.11: 2 Aug. 1852, ordered that letters of administration be issued to Jesse Duncan and Allen Duncan on the estate of Mary Duncan, decd.
Washington Co. TN "Clerk & Master" Minutes Books, Vol. H, 1878-1881 (FHL film 812,993)
Pg.75-76: Wm. M. Bayless et al vs. Frank Williams et al. Decree. This cause came on to be further heard before Chancellor Smith on this 8 June 1878 upon the record at large in the cause of Isaac Stephens & Geo. W. Stephens & other persons and the Masters Report made to the present term of this court and the exceptions of complt. and the respt. Jones thereto; and upon due consideration ... exception #4 of report is sustained but exceptions 2, 3 & 5 are disallowed ..., exception #1 having been withdrawn before the hearing; with these modifications said report is confirmed (MAD: report not given). Upon the settlement of said Isaac Stephens as the Admr. of said John Stephens decd. with the clerk of the Co. Court of Washington Co., on 10 July 1868, there remained an unexpended balance of $138.61 of assets of said John Stephens estate in the hands of said Isaac Stephens ...; John Stephens' estate was chargeable with ... balance due on note executed by Isaac and one John H. Stephens to a John Stephens on 27 Aug. 1847; that Russell Jones as admr. of Isaac Stevens is also chargeable with following sums which were payments made by John Stephens in his lifetime and for with Isaac Stephens improperly obtained credit in his settlement of said estate, viz, $550 paid to Francis Williams and wife; $110 paid to Henry Denton and wife; ... Thos. E. Jones as admr. of Isaac Stephens ...
Washington Co. TN Superior Court Minutes
1791-1804 Minutes, by WPA, incl. index (FHL film 24,851 item 1)
Pg.5: Tues., 22 Feb. 1791, Samuel Baughman vs. Vachel Dellingham & John Woods deft, in Equity; commissioners to take depositions of witnesses; John Dunkam and George Vincent be commissioners in Sullivan Co. TN, Henry Woods and George Sammons in Greenville Co. SC, and Thomas Payne and Benjamin Ekles in Washington Co. GA.
Pg.13: 15 Aug. 1891, Samuel Baughman (above) dismissed at cost of complainants.
1791-1804 Petitions - no Duncan (FHL film 24,851 item 2)
1793-1795 Minutes (FHL film 24,851 item 3 or 4)
Pg.74: 16 Sept. 1795, Joseph Duncan on jury in case of William Delaney vs. James Harris.
Vol.3, 1804-1815, typed, indexed - no Duncan (FHL film 24,852 item 3; looked at ca 1980)
1803-1806 Docket Minutes (FHL film 24,851 item 6)
Pg.12: 11 March 1803, Andrew Duncan on jury.
Indexed: Joseph Duncan, pg.202, 204, 206, 207, not looked at
1809 Minutes - no Duncan (FHL film 24,851 item 7)
Washington Co. TN Superior Court Minutes 1791-1817, originals, "incl. index," TN Archives (FHL film 825,520)
Aug. 1791 - Sept. 1803 - no index
Sept. 1793 - 1795 - no index
Quit; see WPA transcripts
Washington Co. TN Superior Court Minutes, Vol.3, 1804-1815, typed, indexed (FHL film 24,852 item 3)
"Superior Court of Law & Equity Minutes, Washington Co. TN" by Hist. Rec. Survey (WPA)
1791-1799, by WPA - no index (FHL film 24,857 item 1)
1800-1803, by WPA - no Duncan (FHL film 24,849 item 4)
Washington Co. TN Circuit Court Enrolling dockets, Books #1, Jan. 1819 to Nov. 1837 (FHL film 1,012,292)
Pg.200: Duncan vs. Mills. Joseph Duncan (Junr?) vs. Hurr Mills, summons, action in debt, Jan., 1820.
No Charles Duncan heirs
Washington Co. TN Circuit Court Records 1809-1968; incl. indexes to Complainants in most volumes, many years are mixed, others are missing
Enrolling dockets 3/1838-10/1843 - no Duncan (FHL film 1,012,293 item 1)
Enrolling dockets 2/1843-6/1846 - no Duncan (FHL film 1,012,293 item 2)
Enrolling dockets 1/1849-3/1853 - no Duncan (FHL film 1,012,294 item 1)
Enrolling dockets 8/1867-5/1875 - no Duncan (FHL film 1,012,294 item 2)
Washington Co. TN Chancery Court Records, 1836-1910, most volumes indiv. indexed by Complainant/Plaintiff only
Enrolling dockets v.1-3, 1870-1877 (FHL film 812,988)
Pg.12-14: (no Court Date): M.A. Duncan vs. J.W. Duncan; Complainant Martha A. Duncan res. of Green Co. TN complains against her husband in law James W. Duncan, res. of Washington Co. TN; that on 27 Oct. 1874 in Green Co., her name then being Royce, she married said Duncan then also a citizen of Green Co.; shortly thereafter they moved to Charlotte [MAD: Mecklenburg Co.], NC, where they began home-keeping and said Duncan engaged in merchandising for a few weeks when he returned to TN to visit his relatives in this county and remained here about 2 months, she remaining in charge of the house in Charlotte. In Jan. of this year he came again to Charlotte but after a stay of some 10 days returned again to this county where he has ever since remained. She accompanied him on his return and remained here with him about a month; he mentioned complaining of illness and declaring his inability to return to Carolina; in order to attend to their house & see to his business, she went again to Charlotte, resumed control of their house and remained there till July last. Her husband's store had been sold out just before their return to TN and she was driven by necessity to support herself by keeping boarders and by clerical labor. This she did till completely exhausted by her efforts and in July she closed their house and returned to the home of her father, Dr. Jas. F. Royce, her present residence, Duncan remaining meanwhile with his relatives. During their separation, sometime in May last she thinks, an alienation was caused by circumstances not now necessary to be detailed during which some unsigned? letters were passed and she was provoked to some utterances in her letters to her husband which she has since regretted and this regret she several times expressed in her letters to him even before her return and also often since. Before this their married life had been tolerably agreeable and no difficulty whatsoever of a serious nature had occurred; but since her return to TN he has treated her as a stranger. He has never been to visit her even when passing within a few miles; he has written her but a single letter in reply to her may kind ones to him and that is cold, formal and repulsive. She has sent a messenger to him to visit her, also met with silent repulse. She has even gone herself to see him in person and obtain a declaration of his intention for the future, but could obtain none; and to her various propositions for a return to amicable relatives and future living together, he replied with an evasive promise to answer by letter. She proposed to live with him in Washington or Green Co. near his relatives or her own, he to find a house for them or even she to find it, but could in no way effect her purpose. She has since this visit received the letter promised, which she understands to be a final farewell to her. For the past eight months he has done nothing whatever to provide for her and she has been left entirely to her own resources. She charges that he has abandoned her and refused or neglected to provide for her, and asks that said J.W. Duncan be made a party defendant, that process issue, and that a divorce or vincento? matromonie be granted her; that she be restored to her former name; and for general relief. She appeared in Greene Co. TN, and said she had not made the complaint out of collusion but in sincerity; Nov. 14, 1875, S.E. Snapp, JP; filed 15 Nov. 1875. (MAD: son of Joseph and Molly Duncan per 1869 deed 41-319)
Vol.2, 1872-1876 - no Duncan
Vol.3, 1872-1874 - no Duncan
Minute Books v.A1-A, 1836-1848 (FHL film 812,989)
Vol.A1, 1836-1843 - no Duncan pltf./complainant
Pg.438: 6 May 1847, Jesse Duncan vs. John Hodges and others, injunction disolved.
Pg.477: 3 Nov. 1847, Jesse Duncan vs. John Hodges and others, complt. not entitled to relief asked for, dismissed, complt. to pay costs.
Minute Books v.B-C, 1848-1856 (FHL film 812,990)
Vol.B, 1848-1852 - no Duncan
Vol.C, 1852-1856 - no Duncan
Minute Books v.D-E 1856-1869 (FHL film 812,991) & later
Vol.D, 1856-1865 - no Duncan
Vol.E, 1865-1869 - no index
"Tennessee Reports : Reports of cases argued and determined in the highest courts of law and equity of the State of Tennessee" by William Frierson Cooper (spine title: Tennessee Reports, Cooper's Edition - 2 - Overton V.2); Vol.2, pg.213 to 215 (California State Law Library, Sacramento, 1/2004) (MAD: see also Monroe Co. TN reference to Duncan and Blair in the 1843 court decision of Torbet's heirs vs. McReynolds et al, 23 Tenn. 215)
DUNCAN & MILLS vs. BLAIR; Supreme Court of Tennessee, Rogersville; 2 Tenn. 213; 2 Overt. 213; November, 1813, Decided.
Appeal in the nature of a writ of error, from Washington circuit court.
WHITE, J. delivered the following opinion.
This was an action of trespass quare clausum fregit, commenced by John Blair against Duncan and Mills; upon the trial in the circuit court, they wished to prove a title to the land (on which the trespass was supposed to have been committed) in Robison, under whom they claimed a right to do the acts complained of. With a view to establish the title, they offered in evidence a copy of Robison's grant from the register's office, a copy of the same grant from the secretary's office of North Carolina, a copy of the warrant on which the grant issued, a copy of the survey, and a copy of a book called an abstract of the entries of Carter's office.
The counsel for the plaintiff, Blair, admitted, that the entry book of Carter's office was lost or destroyed -- But still, objected to the reception of these documents as evidence. -- The circuit court supported the objection; the evidence was not received; to this opinion of the court exception was taken, and the jury having found a verdict for the plaintiff (Blair) the cause has been removed into this court; now the question is whether the circuit court erred in rejecting this evidence.
It is believed the law is clearly settled at the present day, that in an action like the present, a defendant can, under the plea of not guilty, prove a title to the land on which the trespass is supposed to have been committed, and thus prevent a recovery of damages against him. a But in the present case there is a special plea of justification.
It has been argued on behalf of Blair, that no evidence of the entry on which Robison's grant is founded, could be received in an action of trespass:
It is conceived that the law is now settled in this state, that either party may, in an action of ejectment, give in evidence a copy of the entry on which the grant is founded, provided the entry on its face is such a one as our laws denominate a special entry. No reason is discovered, why it should not with equal propriety be received in this action. They are each actions at law; in each, the title to land can be tried. It is true, that in one, the plaintiff recovers nominal damages and possession; in the other, he only recovers damages for the trespass -- But would it not be strange to permit a plaintiff to recover damages for a trespass on land, because the defendant cannot give in evidence a copy of his entry, and there refuse him a recovery of the land itself, because the defendant can give such copy in evidence? It is believed, the law, on this point would be the same in each case.
Again, it has been insisted, that the evidence offered was rightfully rejected; because the copy of the location would be better evidence of the entry than the evidence offered.
This is not our opinion. The location is the written description of the land intended to be entered. It is the party himself who gives this description, furnishes the entry taker with it, and from this description the entry is to be made on the record. The party might write this description and no entry be made. But the issuance of the warrant, presupposes the entry actually made by the public officer, whose duty it was, when issuing the warrant to put a copy of the entry in its face. To say the least of this point, we are of opinion that the evidence offered, was of equal dignity, with a copy of the location.
It has been further insisted, that no evidence whatever can be received to prove the existence of an entry, but a copy taken from the record itself, and certified by the entry taker.
It is certainly true, that while the record existed, a copy from it would have been requisite but when it is either lost or destroyed, we must either admit evidence in its nature interior to this, or the rights of individuals will be lost.
The rule of law is, that the party shall produce the best evidence in his power.
When the record is destroyed, a copy from it cannot be produced, unless the party had previous to its destruction, furnished himself with one; which is very seldom the case. Shall the party then, lose his right, on account of an accident, which was not occasioned by any act or neglect of his? It is conceived not. He must be allowed to use such evidence, as it is in his power to produce; if that evidence satisfies the court and jury of the truth of the fact he wishes to establish, he ought to have his right, as much as if he had made it evident, by a copy from the record. A contrary doctrine would destroy the right of every first enterer, unless he was likewise the first grantee; which is frequently not the case.
Upon these grounds, it seems to me, that the circuit court erred, and that its judgment ought to be reversed.
"Tennessee Reports : Reports of cases argued and determined in the highest courts of law and equity of the State of Tennessee" by William Frierson Cooper, Vol.III (spine title: Tennessee Reports - Cooper's Edition - 4-6 - Haywood Vol.3, 4 & 5); "Reports of Cases argued and adjudged in the Court of Errors and Appeals of the State of Tennessee from the year 1816 to 1817" by John Haywood, Esq., Vol.III; Vol.4, pg.1 to 14 (California State Law Library, Sacramento, 1/2004)
JOHN RUSSELL v. JAMES STINSON, SR., JAMES STINSON, JR., JOHN STINSON, SAMUEL STINSON, WILLIAM STINSON, and SAMUEL VANCE; Supreme Court of Tennessee, Rogersville; 4 Tenn. 1; 1  Hayw. 1; November, 1816, Decided.
The facts to be collected from the bill, answer, depositions, and other evidence, are these:--
The State of North Carolina granted a tract of land, of which the lands in question are part, to Robert Carr, 1st November, 1786. He conveyed to Goodwin, 4th of May, 1789. He conveyed to Beard part of these lands, to the amount of 250 acres; to Vance 249 1/4 acres, 5th April, 1795. Vance sold to Stinson, the elder, in 1797, or in the beginning of 1798, and gave him a bond for title as the defendants state, but as the witness, Beard, states, and as Vance also states, by deed executed and witnessed by Carmick. Hynes also says, that Stinson, afterwards, on the 8th of August, 1798, gave up the deed to himself; and Vance, by his directions, made another deed of these lands to the other Stinsons who are defendants to this bill, which was registered the 25th of December, 1798. The witnesses state that Stinson, at the time of this conveyance to his children, was indebted more than he was worth, and also when he executed this deed, he said now he had done what he had some time wished, for he could not hold the lands himself long, but he hoped he had got it so fixed that his children could enjoy them after him. Records showed divers recoveries against him in the year 1798, and before and after. The evidence shows he was in insolvent circumstances. In 1795 he became surety for Isaac Collit for the costs of a suit prosecuted by Collit against Erwin in ejectment; in which Collit was nonsuited in April, 1796. A sci. fa. issued against him in October, 1798. Judgment was given against him in March term, 1799, by confession. A fi. fa. issued in September, 1799, which was returned, levied on three cows and one yearling; sold for eight dollars. An alias fi. fa. reciting it, issued in March term, 1800, and was returned to September term, 1800, levied on a tract of land of James Stinson, and to be sold on the 28th of October. A venditioni exponas issued September, 1800, returnable 1801, and was returned levied on a house and tract of land adjoining Greeneville, and not sold for the want of bidders. An alias venditioni exponas issued March, 1801, returned satisfied and money ready to be returned into the office. Stinson left the house in question and Russell took possession; the young Stinsons sued Russell in ejectment and recovered; and Russell filed this bill 12th of September, 1809. Stinson continued in possession after the date of the deed to his children and from the time he purchased in 1798 to the time of the sale under the execution; he sold two acres, part of this land, to Holt, 1st February, 1799; and to Duncan and Duffield one and a half acres 31st August, 1798, and offered to sell 100 acres, part of the residue, and he and the person he offered to sell to, agreed on the price, but when it was discovered that he had conveyed to his children, Holt, the intended purchaser, declined proceeding. (MAD: Abner Duncan, Greene Co. TN)
On the day of sale the bidding was opened and the land was cried by the deputy, the principal sheriff being present; but on Stinson's insisting on the sheriff to go with him to get the money of Balch, the sale was suspended, and the sheriff went with him, but not procuring the money, the sale was continued, and was ended after dark. The bidding commenced early in the afternoon. Balch was prevailed upon by Stinson to bid, and asked the sheriff before he began to bid, if he would receive Stinson's receipt for all the money above what would satisfy the execution, and was answered yes, but after he had bid as far as two hundred and nine dollars, the sheriff told Balch that he must retract his promise as to the surplus, and that Balch must pay all the money, if it should be even to the amount of two thousand dollars. Whereupon Balch declined, but would have bid any sum needful to accomplish the purchase if he could have been permitted to pay the surplus by Stinson's receipt. Not long before the conveyance to the children, Stinson advised with Perry, and wanted to know whether he could not, as he was so much embarrassed with debts, convey to his children, so as to secure the property to them. Being answered no, for that it would be considered fraudulent, he replied, he would try it anyhow. The children were all under age when the conveyance was made to them; the eldest not being more than sixteen years of age. In July, 1798, Stinson conveyed a tract of land called Young's place, about three miles from the lands in question, to William Wilson, for money advanced to pay off executions levied on the same at the instance of Deaderick; and also at the instance of King and Dixon. That deed is yet in the possession of Wilson, and is endorsed thus, "This deed to be in the office till called for by me, W. Wilson."
Upon these facts, divers main questions have been made at the bar, and divers subordinate and previous ones have arisen.
First, had Stinson any legal estate in the premises after the deed made to him by Vance, and before and at the time of the deed made to his children? The answer is furnished by the act of 1715, ch. 38, Sec. 5. The decisions in North Carolina uniformly, and those in this State latterly, have been that no legal estate does pass until registration actually takes place. The construction upon this section, with respect to all deeds, is the same as upon the statute 27th Henry VIII. ch. 16, directing the registration of deeds of bargain and sale. The estate is to pass by deed executed, and proved, and registered. The latter requisite is equally essential as any of the former. The estate by both acts does not pass till it be complied with. The reason of directing registration is not only for the benefit of creditors and subsequent purchasers, but to supply the place of livery of seisin, the object of which is notoriety, that the lord might know on whom to call for his services; and the plaintiff in actions for the freehold, then in use, to know against whom, as the tenant, such actions were to be commenced. The act of 1784, ch. 10, Sec. 7, directing bills of sales for slaves, and the registration thereof, is solely for the benefit of creditors and subsequent purchasers. The title vests immediately, and becomes subsequently void if not registered. But the term void here means at the instance of creditors and subsequent purchasers. This act proceeds upon the same principles as that in 1777, which directs grants to issue and to be recorded in twelve months, or to be void. This is for the benefit of the State, is good as to all others, and can only be avoided by the State taking the necessary legal steps for the avoidance.
The second question is, if no legal estate passed to James Stinson, then had he any estate liable to the satisfaction of creditors? for if he had not, then it was no injury to them to have caused it to be conveyed to his children.
Answer: he had by the payment of the purchase money and the purchase of the lands an use or trust. 2 Bl. Com. 338. The bargain and payment of the purchase money first vests the use, and the statute of uses, the possession. But no right to the possession passes till registration. Before registration and after the payment of the purchase money, the use or trust arises, and vests in the purchaser. It is then immaterial whether Stinson had a deed unregistered, or only a bond for title, for in either case he had the use. It is needless therefore to decide whether the execution of the deed to him ought to have been proved by Carmick, and the other subscribing witnesses, or by any of them; for the bond is admitted in the answer. Then, is this use or trust which he had, liable to execution? A trust estate is liable to execution by statute of 29th Charles II. ch. 3, Sec. 10; vide 2 Saund. 11. "It shall be lawful for any sheriff or other officer, to whom any writ or precept is directed at the suit of any person, if for and upon any judgment, statute, or recognizance, to do, make, and deliver execution unto the party in that behalf suing, of all such lands, tenements, rectories, tithes, rents, and hereditaments, as any other person or persons are in any manner of wise seized or possessed in trust for him against whom execution is so sued, like as the sheriff or other officer might, or ought to have done, if the said party against whom execution was sued had been seized of such lands, &c., of such estate, as they are seized of in trust, for him at the time of the said execution sued, which land, &c., by virtue and force of such execution, shall accordingly be held and enjoyed free, and discharged from all incumbrances of such person or persons as shall be seized or possessed in trust for the person against whom such execution shall be sued, and if any cestui que trust shall die, leaving a trust in fee simple to descend to his heir, then, and in every such case, such trust shall be deemed and taken, and is hereby declared to be assets by descent, and the heir shall be liable to and chargeable with the obligation of his ancestor, for and by reason of such assets, as fully and amply as he might or ought to have been, if the estate in law had descended to him in possession, in like manner as the trust descended."
If this section of the act of Charles II. be in force in this State, a trust estate is liable to execution. And if Stinson had the use or trust continuing in him on the day when the first fi. fa. issued against him, in September, 1799, that trust was liable. By this act the trust is bound, not by the judgment as other real estates are by the statute of Westminster the 2d, ch. 18, which introduced the elegit, but only by the issuing of the fi. fa. and from the date of the teste thereof. Had Stinson this trust on the day when the fi. fa. issued against him in September, 1799? He caused the lands in question to be conveyed to his children on the 8th of August, 1798. This conveyance, however, was made to defraud creditors; it was made when he was indebted, and insolvent. The sci. fa. issued October, 1798, and judgment was entered September, 1799. It was made to his children without valuable consideration paid by them; he continued in possession, and sold parts of the same land to Holt and Duncan and Duffield, and it was made for the express purpose of defeating creditors. These circumstances are proof sufficient of the fraud intended; the fraud in this instance would be accomplished, if the conveyance to the children were deemed valid. It does not appear that he had any other property upon which the execution could have been levied. Being fraudulent it was void as to creditors, both by the common law, by the statute of 13th Elizabeth, ch. 5, and by our act of 1715, ch. 33, Sec. 8. It is an alienation of lands to which in equity he is entitled, as much as he is entitled at law, by a conveyance made as required by the same act, Sec. 5. Indeed, the common law would produce the same effect as these acts do, had they never been made. They are not additional to, but declarative of the common law, which extends to all the cases mentioned in these acts, and to all other cases not mentioned in them, which if not invalidated would produce the loss of a just debt to a creditor, by fraudulent alienation of property liable to the satisfaction of his debt. This deed to the children being void as to creditors, is void as to the creditor in this fi. fa., and of course, as between him and Stinson, the property continued in Stinson on the day when the fi. fa. issued.
The question then comes forward, is such a trust liable to fi. fa. by our law, as it was by the law of England liable to execution in consequence of the 29th Charles II. ch. 3, Sec. 10? That section, as well as the act of 3d and 4th William and Mary, ch. 14, reenacted by North Carolina, 1798, ch. 39, Sec. 2, though both of them passed after the 4th of James I., are in force here as the court conceives; though not within the general rule for determining what statutes in England are in force in this country. The act 5th George II. ch. 7, is in these words, Sec. 4: "And be it further enacted, by the authority aforesaid, that from and after the said 29th day of September, 1732, the houses, lands, negroes, and other hereditaments and real estates, situate or being within any of the said plantations belonging to any person indebted, shall be liable to, and chargeable with all just debts, duties, and demands of what nature or kind soever, owing by any such person to his Majesty, or any of his subjects, and shall and may be assets, for the satisfaction thereof, in like manner as real estates are by the law of England liable to the satisfaction of debts, due by bond or other specialty, and shall be subject to the like remedies, proceedings, and process in any court of law or equity, in any of the said plantations respectively, for seizing, extending, selling, or disposing of any such houses, lands, negroes, and other hereditaments and real estates towards the satisfaction of such debts, duties, and demands, and in like manner as personal estates in any of the said plantations respectively are seized, extended, sold, or disposed of for the satisfaction of debts."
This act speaks, first, of the liability of lands in America, and, secondly, of the judicial process to be used against them, for the effectuation of that liability. Lands, &c., and real estates are made liable, &c., as real estates are in England; how is that? A trust estate in England was then a real estate, descendible, devisable, alienable, and extendible for the satisfaction of debts. Lands devised were then liable in England in the hands of the devisee by the 3d and 4th of William and Mary, ch. 14, though by the common law none but lands descended were. Immediately upon the passage of this act of George II., all statutes for the subjection of real estates to the satisfaction of debts, as well as the common law upon the subject, which these statutes had amended or added to, were in force in the colonies. Is it to be believed that lands devised away from the heir were not liable to be sold for debts, from 1732 to 1789, a space of fifty-seven years, till the act of the 3d and 4th of William and Mary, ch. 14, was reenacted by the Assembly of North Carolina, 1789, ch. 36, Sec. 2? In all this time there is no instance within our knowledge of a debt lost by such devise. Had such been the law, it would have been altered and provided for, long before the year 1789. In consequence of this act of George II., lands and tenements were inserted in the fi. fa., which by the common law only issued against goods and chattels. These words were added for the purpose of reaching the real estate made liable by the act of George, including trusts of freehold estates made liable by the laws of England then existing, amongst which was this section of 29th Charles II. ch. 3, Sec. 10. Such was the form and effect of the fi. fa. as altered by the act of George II. when the act of 1777, ch. 2, Sec. 29, was enacted. It continued the fi. fa. against lands as it had been established by the act of George II., not at all impairing its form or extent, but rather enlarging it; for executions which before issued only against goods and chattels, were then directed to issue against lands and tenements also; which perhaps was meant for executions issued by justices of the peace; which in 1786, ch. 14, Sec. 10, are understood to extend to real estate by virtue of the words "lands and tenements," which, by the act of 1777, are directed to be inserted in them, overlooks the clause in the same act which directs execution from justices of the peace to issue against the goods and chattels, or body of the debtor. What is real estate, one of the terms used in the act of George II.? All the lands, tenements, and trusts which a man hath; for by these words, real estate, lands subject to trusts for the benefit of the devisor will pass to his devisee. The act of George II. is also enforced by the act 1778, ch. 5, and with it all the statutes that are referred to by it as forming the law of England upon this subject when it passed; of course this section of 29th of Charles II. ch. 3, Sec. 10, was enforced at the same time. These acts are all enforced, furthermore, by the Constitution of this State, and by the act of 1789, ch. 3, Sec. 8. The 10th article of the Constitution, Sec. 2, continues in force the same statutes and acts of Assembly as the State received from North Carolina. The result is, that the act of Charles II. is enforced by the latter provisions, and that trust estates are liable here, as spoken of in the case cited at the bar, 8 E. 486. From all these considerations the conclusion follows, that although it be true, in general, that equitable estates are not liable to fi. fa. because not known to the common law, yet an equitable estate, being also a trust dependent on a legal estate of freehold, is subject to this statutory provision.
And this is the reason why the Legislature of this State and of North Carolina have not made any law relative to this subject, as they would most certainly have done long ago had it been understood to be law, that a debtor might defeat all his creditors by purchasing and paying for land, and thereby raising a trust, which no creditor could affect, or by getting a deed and keeping it from registration. A debtor would then have nothing to do but turn all his estate into a trust or deed unregistered, and bid defiance to all his creditors.
Objections are made by Stinson's counsel, which have been considered, and deserve to be answered. The first is, that this land was sold by an alias venditioni exponas, without any seizure upon the second fi. fa., the same not being produced. Answer: we must consider the mode of transacting business in this country formerly, and conform to it, s in case of a verdict from North Carolina without any judgment, or a scroll for a seal. The practice has been to write alias on the second fi. fa. and to put that into the hands of the sheriff as a new writ. In such case, if the seizure be made on the second, the clerk can only state in his record the return to it, and that is done here. It is recited in the first venditioni exponas. We do not say that a fi. fa. is not necessary to be produced; but we believe that what is shown ought to be received on this occasion as equivalent to a fi. fa. And here let us notice a difference between the sale of chattels and of lands; the former must be actually seized and shown to the bidder on the day of sale. Not so of the latter; for they are incapable of seizure and removal to the place of sale. A remainder or reversion may be sold, as well as a present possession, and these cannot be seized; therefore the sheriff need not enter upon them, nor make any actual seizure; he may return the lands which he has selected for advertisement and sale, and may sell them afterwards. It is true a seizure of personalty or a selection of realty, to the value of the debt, is a discharge of the debtor, and an exemption of his other property, unless the property seized be destroyed, without default of the sheriff.
But what is the proof here? That another tract was selected? Not so. A tract of land generally stated in the return, but not described to be a different tract from this. The sale of this tract of land is consistent with the return, and probably with the fact. Young's place was attached for Deaderick's debt; and King and Dixon's debt in July, 1798, or before. It is true a venditioni exponas gives no authority to the sheriff to sell; his power is derived from the fi. fa., and having once seized or selected, and becoming thereby the debtor, he must sell and raise the money, whether the venditioni exponas issue or not. When it issues, it is only to quicken the sheriff's proceeding, not to communicate any new authority. These remarks, however, need not be made as this case is circumstanced.
Another objection is, that this sale was made after sunset. Answer: that was at the instance of the defendant in the execution, and therefore cannot be argued by him as a fraud detrimental to his rights. The act of Assembly upon this subject was made for the benefit of defendants, and its provisions may be dispensed with to suit their convenience, if requested by them; and besides, not within the act of 1807, which was passed long after the sale.
Another objection is, that Russell has tried his cause at law, and ought to be bound by the judgment there given as he submitted to a trial there. Answer: in the case of an ejectment he may try his cause again at law, and why not also in equity, as well as law, where his case is originally equitable? Where the judgment is final at law, perhaps it would be a bar in equity if pleaded in bar; unless circumstances attended the trial at law, which required the aid of equity.
Another objection is, that Stinson was not a debtor till the judgment against him in March, 1799; until that time it could not be known that he would ever be liable. Answer: if he became subsequently indebted, and contemplated the same at the time of the conveyance to his children, he is within the law against fraudulent conveyances. Moreover, we believe a co-obligor who is only a surety, is as much prohibited by these laws from making a fraudulent conveyance to defeat creditors, as if he were the principal obligor; for the creditor, perhaps, would not have trusted the principal had it not been for the supposed sufficiency of the surety.
Another objection is that this court will not execute a contract concerning the realty, unless it be reasonable and just, and here the price is greatly inadequate to the value. Answer: that is true as to contracts between individuals, for the sale and purchase of lands, for there it is in the discretion of the court to interfere or not. Here is not such a contract but an execution sale, which is good both in law and equity. This court ought to enforce and aid the efficacy of a sale made by the law, for otherwise it would lose its effect. No one would purchase such an interest if the law could not aid him, and if at the same time equity was at liberty to withdraw its assistance. Inadequacy is the general consequence of execution sales. The loss is imputable to none but the defendant in the fi. fa.
Objection: if the estate in the children be void, the court cannot transfer the void estate to the plaintiff. Answer: a void estate in general need only be declared void by the rules of a court of equity, and need not be ordered to be transferred. Equity, however, is not bound down by the forms of the court, adopted for convenience, to adhere to a course which will not answer the purposes of substantial justice, but may, in all needful cases, adapt their directions to the matter before them. The court may direct all parties before them to join in conveyances or release; who, if they should not join, might hang a cloud over the title of him for whom they decree.
It is again objected, that the sheriff agreed to take the surplus in Stinson's receipt, and afterwards recalled his promise, and, by that means, stopped Balch from bidding. Answer: he acted prudently in recalling it, for he was commanded by his writ to pay it into court. The surplus belonged either to the children or creditors, and he would have been liable to them for any mispayment or misapplication of it.
It is objected further, that Sec. 10, of 1715, ch. 38, is restrictive of Sec. 5, and proves therefore that bona fide deeds need not be registered as between the parties, and shows, that deeds in the 5th section are only registered for the benefit of creditors and subsequent purchasers. Answer: Sec.Sec. 8 and 10 are copied from the 13th Elizabeth, in which is the same exception. It was intended here to answer the same purpose as in that statute, and has no connection with Sec. 5.
Decree the legal estate in the lands in question in this bill, that is to say, that all the lands conveyed to the defendants, the sons of James Stinson, by Samuel Vance, except such parts thereof as were sold to Holt or Duncan and Duffield before the sale made by the sheriff to the complainant, be divested out of all persons, defendants to this bill; and that the complainant from and after this decree shall have and hold the said lands to him, his heirs and assigns forever. That the injunction obtained by the complainant shall be and hereby is made perpetual, and that the defendants, the said James Stinson, senior, and his sons, shall pay the costs of this suit.
"Reports of cases argued and determined in the Supreme Court of Tennessee for the Eastern Division for the year 1870" by Joseph B. Heiskell, Vol.I; Tennessee Reports, Vol.48, pgs.145 to 150 (California State Law Library, Sacramento, 2/2004)
R.A. CONLEY, Adm'r, et al, v. Z.L. BURSON and JAS. H. DUNCAN, Ex'r; Supreme Court of Tennessee, Knoxville; 48 Tenn. 145; 1 Heisk. 145; September, 1870, Decided.
From the Chancery Court at Jonesboro. J.P. SWANN, Ch., presiding.
The powers of attorney mentioned in the opinion were executed in November, 1860, by Rachel and John B. Duncan, they being citizens of Iowa, where they continued to reside during the war. Conley, the attorney, made his deed to the lands, lying in Washington County, Tennessee, June 20, 1863.
TURNEY, J., delivered the opinion of the Court.
The Chancellor's decree declaring void the power of attorney of Rachel Duncan to Josiah Conley, of November, 1860, and the power of attorney of John B. Duncan to Josiah Conley, of November 7, 1860, and the deed of said Conley, as attorney in fact for the two above named parties, to Z.L. Burson, made June 20, 1863, is correct. The facts necessary to be noticed are: Richard and John B. Duncan were the children of Joseph and Molly Duncan, who, after making a joint will, appointing defendant, James W. Duncan, executor, died. By the will, certain lands were devised to their children, including Richard and John B., who lived in Iowa. At the times mentioned above, the powers of attorney were executed. Assuming to act under these powers, Josiah Conley, as attorney in fact, representing Rachel and John B., joined others in the deed of 20th of June, 1863, to Burson, conveying their interests in a tract of land of about 530 1/2 acres. After this, Rachel died, leaving her husband and the heirs at law mentioned in the bill, who joined in this suit, asking to have the deed, as to the two interests, declared void, and the cloud removed from the title. Josiah Conley resided in Tennessee, and is dead. The tract of land is in Washington County, Tennessee. Rachel lived in Iowa to the time of her death. John B. still lives there. (MAD: Richard and Rachel as given; see Louisa Co. IA)
Without expressing an opinion as to the validity or invalidity of the powers of attorney, or of the deed as to the two interests of John B. and Rachel, as appearing upon their facts or from their execution, but treating them as regular in these respects, we hold the deed void, for the reason that war existed at the time of the making of the deed, in which the two States of which the makers of the power of attorney and the attorney in fact, were respectively residents and citizens, were antagonistic. By the general law, a state of war puts an end to all executory contracts between the citizens of the different countries. Whatever contract remains then in fieri, is either suspended or dissolved, flagrante bello. 19 Johns. 138. The war between the States revoked the powers of attorney from John B. and Rachel Duncan to Conley; therefore, the deed was without authority.
Defendant Burson, in his answer, asks that it be filed as a cross bill; and if his title under the deed is not good as to the interests of John B. and Rachel, he asks that the administrator of Josiah Conley account for the money paid to him on the purchase of the two interests. Without deciding whether he is properly in court by his cross bill, we are of opinion the relief asked can not be granted.
The pleadings and proof satisfy us that the payment was in Confederate money. Under the rule, as declared by the Supreme Court of the United States, and by this Court during the present term, the defendant is not entitled to an account for the money paid by him. The fact that the Confederate States was a government de facto, or a government of paramount force, can not affect the rights of a citizen of a State at all times acknowledging the Government of the United States, and at no time interrupted in that acknowledgment by the Confederate Government or it armies; and while, as between citizens of States in secession, Confederate money did have a value, this was not so as between citizens of what were called the loyal States, nor as between citizens, on the one side, of the seceding States, and on the other of the loyal States not acting in sympathy with the cause of the South, and not trading upon terms of equality. During the civil war, all commercial intercourse with the enemy was prohibited by the Act of Congress of 1861. Revenue Cases, 66; Prize Cases, 291. In a State of war, the nations who are engaged in it, and all their citizens and subjects, are enemies to each other; hence, all intercourse and communication between them is unlawful. 18 How. 110. The tenor and meaning of the decisions of this Court, since its reorganization, are, that the States of the Union at war with each other were, in that war, as separate and distinct nations, and the citizens of each enemies of the other. It therefore follows, that their intercourse and communications was unlawful; and if citizens of Iowa were forbidden by the laws of war, or by the statutes of the General Government, of which they were citizens, to trade with a citizen of Tennessee, for the same reason they could not so trade through an agent or attorney in fact. And if, before the war, they constituted an attorney, and by the war the appointment was revoked, the action of the attorney in fact was a nullity, and communicated no title to the vendee. At the time of the conveyance, Conley, the attorney, and Burson, the purchaser from him, were bound to take notice of the existence of the war, and the political relations of themselves and John B. and Rachel Duncan thereto, and its legal effect. Burson had actual notice of the character in which Conley assumed to act; no fact was concealed from him. It results, therefore, that the payment of the purchase money by him to Conley was not for the benefit of John B. and Rachel, but was, in legal contemplation, no more than a deposit for his own use; he might have withdrawn it at any time; and if, when demanded, Conley had refused to return it, he could have made him liable for it or its value. Failing to do this, and the currency becoming valueless in the hands of Conley, without appropriation by him to his use, the loss falls upon Burson.
Affirm the decree.
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