Person:Mary Brown (609)

San Francisco Bulletin, 2 May 1873 THE COURTS, Supreme Court Sacrament, May 2d Henderson vs. McTucker - Order reversed as to Barton Daniels and cause remanded, with directions to enter an order that he be restored to possession of premises.

San Francisco Bulletin, 19 July 1873 page 3 THE COURTS - Supreme Court Henderson vs. McTucker, rehearing denied.

San Fraancisco Bulletin, 9 January 1875 page 4 Supreme Court Decisions - October Term, 1874 (Filed January 9, 1875) Daniels vs. Henderson - No. 4471 This action was brought to recover the rents and profits of certain premises, for the period of time during which possession was held by the defendant, after the service of the writ of assistance, which was iss ued in the case of Henderson vs. McTucker. The defendant offered evidence to prove that Jacob and William Morse purchased the premises from the State (they being a portion of a thirty-sixth section); that they conveyed the same to Nathaniel McTucker; that the latter executed to Jacob Morse a mortgage of the premises to secure a part of the purchase money; that the mortgage and the note thereby secured were assigned to the defendant; that thereafter, the mortgage was foreclosed, the premises sold, and a deed was executed by the Sheriff to the defendant. The plaintiff objected to the evidence and it was excluded without regard to the question whether the answer states facts sufficient to entitle the defendant to affirmative relief, it is clear, we think, that the above-mentioned evidence was admissible and the denial in the answer that the plaintiff was entitled to the possession of the premises. It tended to show that all the right which was transferred by the State to Jacob and William Morse, by the certificates of purchase, had vested in the defendant, and that he thereby became entitled to the possession of the premises. It was determined in Henderson vs. McTucker, 45 Cal., 647, that the questions as to the right of Daniels to the possession, as against Henderson, could not properly be litigated in a motion for a writ of assistance. The judgement, therefore, in that case did not determine or estop the defendant from denying that Daniels was entitled to the possession of the premises. The plaintiff also attempts to justify the exclusion of the evidence on the ground that just before the foreclosure of the mortgage by Henderson, Nathaniel McTucker had assigned his certificates of purchase to John and Mary McTucker, who were not parties to the foreclosure suit, and that the plaintiff holding under them is therefore unaffected by the judgement in that suit. To this position - assuming that such an assignment of the certificates was shown - there are several answers; one of which is that the defendant, in addition to the facts which the offered evidence tended to prove, might have been able to prove that John and Mary McTucker by the filing of a lis pendens, or because of a failure on their part to record the assignments of the certificates of purchase, as provided for by Section 248 of the Practice Act, as amended by the Statute of 1866, p. 704, or by some other means or mode, were bound by the judgement of foreclosure. Judgment and order reversed, and cause remanded for a new trial. J. Rhodes We Concur: J. Crockett and J. McKinstry

San Francisco Bulletin, 5 November 1879 page 1 By the Court (Filed November 5, 1879) Henderson vs. Grammar - No. 6218 We are of the opinion that the finding by the Court below that the assignments of the certificates 1,778 and 1,779, to John McTucker in his life time, and of certificate No. 744 to Mary McTucker Grammar, since the death of said John, were made with intent to defeat plaintiff’s security is not supported by the evidence and the judgement must therefore be reversed for that reason. It is apparent from the record, however, that Nathaniel McTucker having been the actual holder of the certificate 744 at the time of the foreclosure of the plaintiffs mortgage and the assignments of the other certificates from Nathaniel to John McTucker not having been recorded, the foreclosure of the plaintiff’s mortgage and the sale thereunder, had, under the statute, the same effect upon the title as though the heirs of John McTucker had been parties to the foreclosure proceedings. In this view the only relief which the defendants can have in this action, if any, must proceed upon their rights as junior mortgages or for expenditures in perfecting the title; and in the present condition of the answer, such relief cannot be held.

San Francisco Bulletin, 14 January 1885 In Bank (Filed January 12, 1885) Henderson vs. Grammar No.. 7,692 Jacob and William Morse paid one-fifth of the purchase price of certain swamp lands receiving three certificates of purchase from the proper officer, and then conveyed the lands to Nathaniel McTucker. The latter mortgaged them to Jacob Morse (by whom such mortgage and the note it was given to secure were transferred to plaintiff), and subsequently mortgaged the same lands to John McTucker. Nathaniel McTucker assigned, and delivered two of the certificates of purchase to John, and after the latter’s death, assigned and delivered the third certificate to his widow, now Mary Grammar, defendant. Afterwards plaintiff commenced an action to foreclose his mortgages, but failed to make the heirs or representatives of John McTucker parties, although the mortgage to John McTucker had previously been recorded. The assignments of the certificates of purchase had not been recorded, and the Court found plaintiff had no notice of them, when he commenced his action to foreclose his mortgage. In that action a decree, in the usual form, was entered May 18, 1871. On the 13th of September, 1871, defendants herein, alleged heirs of John McTucker, paid to the State the balance of the purchase money, surrendered the certificates of purchase and received patents for the lands. Under the foreclosure decree the Sheriff sold all the right, title and interest of Nathaniel McTucker to the plaintiff herein, and no redemption having been had, executed to said purchaser a deed of the lands, bearing the date October 1, 1872. On the former appeal the Supreme Court said: “Nathaniel McTucker having been the actual holder of the certificate No. 744 at the time of the foreclosure of plaintiff’s mortgage, and the assignments of the other certificates from Nathaniel to John McTucker not having been recorded, the foreclosure of plaintiff’s mortgage, and the sale thereunder had, uner the statute, the same effect upon the title as though the heirs of John McTucker had been parties to the foreclosure proceedings. In this view the only relief which the defendants can have in this action, if any, must proceed upon their rights as junior mortgagees or for expenditures in perfecting the title; and in the present condition of the answer, such relief cannot be had” (52 Cal. 652) The record now here discloses the same facts with reference to the certificates and their non-registration as were before the Court on the former appeal. After the cause went back to the trial court the defendants ammended their answers, and upon the new allegations and proofs in support of them, appellants now claim the Court should by its decree have provided for a redemption by them, as junior mortgages. The answers were demurred to by plaintiff on the ground that the facts therein stated did not constitute a defense. There is no averment in the answers that the estate of John McTucker has ever been settled or distributed; there is no averment that the defendants or any of them are the owners or holders of the notes of Nathaniel McTucker to secure which the mortgage to John McTucker was made; there is no averment that John McTucker by his last will and testament bequesthed the said notes, or the claim by them represented, to defendants or any of them, nor is there any averment that John McTucker died intestate. The answers do not show that the defendants had succeeded to any interest in the notes or mortgage, or that they had the right to redeem the land from the prior mortgage. It is contended, however, by appellants, that, upon equitable principles, the decree should not have commanded a conveyance of the legal title acquired from the State (on payment of the amount by them advanced), but should have provided for such conveyance only in case the defendats did not - within a reasonable time fixed therein - pay to plaintiff the amount of his lien. But in the eye of a court of equity plaintiff is the real owner of the State title. The rights of the mortgager under the contracts with the State passed to plaintiff by his purchase at the foreclosure sale and the Sheriff’s deed in pursuance thereof. By his purchase and deed he became vested with the title of the mortgager as against all the world except the successors in interest of John McTucker, and as against them, he became vested with the title of the mortgager, subject to the lien of his own and the John McTucker mortgage. (Carpentier vs. Brenham, 40 Cal. 221.) As we have seen, defendants failed to allege they had succeeded to the rights of John McTucker as mortagee. It cannot be said the mere assignments of the certificates of purchase created liens on the estate of Nathaniel McTucker, but if they did, such liens were foreclosed by the decree in the mortgage suit, because the assignments were not recorded. (C. C. P. 726) Plaintiff became the owner fo the title of which such certificates were evidence, and from the time he did so became the owner it was the manifest duty of defendants to assign the certificates to him. And so, when they acquired the State title, by and through the certificates it was their duty to convey it to plaintiff. The Court required, as a condition to such conveyance, that plaintiff should pay to them the 80 per cent of the price paid to the State, which they had advanced, expenses, etc., because, if the certificates had been in his possession, he would have been obliged to pay the 80 per cent to secure the State title. But it was not the duty of the Court to permit the defendants to redeem plaintiff’s mortgage, since they had not shown that they had the right of redemption.

In this view, it is unnecessary to inquire whether the statute of limitations had run against a bill to redeem by the owner of the second mortgage. Judgement affirmed, J. McKinstry We concur: J. Thornto, J. Harstein, C. J. Morrison, J. Ross CONCURRING OPINION When the heirs of John McTucker filed their cross-complaint to redeem from the sale under the senior mortgage, by which the title of the mortgagor to the mortgaged premises passed to the plaintiff, they had no right of redemption, because the time of the statute of limitations had run upon all the promissory notes whose payment had been secured by the junior mortgage to John McTucker; and as the rights arising out of said notes and mortgage were not kept alive by any action brought by the mortgagee in his lifetime, or his personal representative or heirs, after his death, the causes of action upon the notes and mortgage were barred, the morgage lien was extinguished (Section 2911. C. C.; Wells vs. Harter, 56 Cal., 343; Jeffers vs. Cook, 59 Id., 15; and the right to foreclose and the right to redeem were also barred. (Morris vs. Goodman, 18 Cal., 482; Coster vs. Brown, 23 Id., 142; McCarthy vs. White, 21 Id., 135; Espinosa vs. Gregory, 40 Id., 38; Taylor vs. McLone, 60 Id., 651; Arringston vs. Livscom, 34 Id., 365; Cunningham vs. Hawkins, 24 Id., 403; Siter vs. Jewett, 33 Id., 92; Grattan vs. Wiggin, 23 Id., 16) Therefore I concur in the judgement. J. McKee

Note: The case of Henderson vs. McTucker 45 Cal. 647 is widely cited as it ruled that where a party in possession was not a party to the foreclosure (Henderson), his possession will be protected upon motion to restrain the execution of the writ.

1870 US Census, Hadley Township, Pike County, Illinois, page 5, houshold 28, 15 June 1870 Mary McTucker, 40, female, white, keeping house, owns real estate worth $32,000, personal property worth $19,000, born in Vermont Nannie, 20, female, white, at home, born in Illinois James, 18, male, white, farmer, born in Illinois Effie, 16, female, white, at home, born in Illinois Jessie, 14, female, white, at home, born in Illinois Frances, 10 John, 3, Plus Elija Tilton (56), Mary Tilton (13), Dud Gramar (43 works on farm) and Susan McTucker, 70, female, white (Probably John McTucker’s mother). Since Eliza Tilton was 56 and born in Vermont, as was Mary McTucker, she might be Mary’s sister.

1880 US Census, Hadley Township, Pike County, Illinois, Enumeration District 186, page 8, household 71, June 1880 William Grammer, white, male, 58, married, farmer, born in Massachusetts, parents born in Massachusetts Mary M., white, female, 53, wife, married, keeping house, born in Vermont, parents born in Massachusetts Frances McTucker, Frances, white, female, 17, stepson, single, born in Illinois, father born in Pennsylvania, mother born in Massachusetts (Wrong) John B., white, male, 13, stepson, single born in Illinois, father born in Pennsylvania, mother born in Massachusetts (Wrong)Nathaniel, white, male, 8, stepson, single, born in Illinois, father born in Pennsylvania, mother born in Vermont Mary, white, female, 27, stepdaughter, married, boarding, born in Scotland, parents born in Scotland Frank, white, male, 7, step-grandson, single, at home, born in Illinois, father born in Illinois, mother born in Scotland Ellis, white, male, 5, step-grandson, single, at home, born in Illinois, father born in Illinois, mother born in Scotland Mary C, white, female, 1, step-grandaughter, single, at home, born in Illinois, father born in Illinois, mother born in Scotland Ed Cox, farm laborer and Joannah Behoem?, servant

1900 US Census, San Antonio, Bexar, Texas, 1012 North Flores Ave., household 153, Enumeration District 91, sheet 9, 9 June 1900 Living with her daughter Susanna McTucker Rowand Mary Grammar, mother-in-law, white, female, born May 1827, 73, widow, bore 8 children, 7 children living, born in Vermont, father born in New Hampshire, mother born in Massachusetts, can read write and speak English

Anaconda Standard, Butte, Montana 12 January 1904 page 8 Prominent Woman is Dead Funeral of Mrs. Mary McTucker-Grammer Will Be Held This Afternoon at the Lisa Block Mrs.Mary McTucker-Grammer died Monday morning at the age of 76 years at the home of her daughter, Mrs. Elisa McDonald, 401 Colorado street. Mrs. McTucker-Grammer was the mother of 10 children, seven of whom survive her. These are Mrs. E. Dodge, Mrs. Elisa McDonald, Mrs. J. Davis and Miss Frances McTucker of this city, and Mrs. J. R. Rowland of San Antonio, Tex., and James and John McTucker of Barry, Ill. Her youngest son, Nat McTucker, a well known street railway employee, died in this city in April 1998. Mrs. McTucker-Grammer was born in Johnston, Vt., May 29, 1827, moving with her brother to Illinois in the early '40's. She was married to John McTucker at Barry, Ill., and there all her children were born. Her husband was killed in a railway accident in 1869. In 1875 she was married to William Grammer, who died in 1891, leaving her a widow the second time. Since the death of her second husband Mrs. McTucker-Grammer had lived with her daughters and for the past three years had been a resident of Butte. She was a lady of estimable qualities, of quiet and retiring disposition and was beloved by all who knew her. Funeral services will be held at 4 o'clock this afternoon at the Lisa block. The body will be taken to Barry, Ill. for burial.

Barry Adage Jan. 21, 1904 Mary Grammer Miss Mary Brown was born in Johnson, Vermont, May 29, 1827, and departed this life at the home of her daughter in Butte, Montana, Jan 11, 1904, aged 76 years 7 months 12 days. She came with her parents to Illinois in 1847 and settled in Pike county near this place. She was a sister to Benjamin Brown, so well and favorably known in this city as the donor of the funds that have so recently erected our beautiful public library. She was married to John McTucker in 1849, to whom she was a faithful and devoted wife until death removed him Oct. 27, 1869. She was the mother of ten children, seven of whom are still living, namely: Mrs. J.R. Rowand, San Antonio, Tex., James McTucker, Mrs. Effie Dodge, Mrs. Jennie Davis, Mrs. Eliza McDonald and Frances McTucker, all of Butte, Mont., and John McTucker of Barry, Ill. Mrs. Davis, Frances and John were the only children able to be at the funeral services. One son, Nathaniel, died only five years ago. The subject of our sketch was married a second time Wm. Grammer in 1875, who died in 1891, since which time Mrs. Grammer has made her home with her children, spending the most of the time in Butte, Mont. The sad news of her death was heard with profound sorrow by her many friends here, who had known her so long, and each and everyone has something to relate of her kindness and help to them in some hour of sorrow and need. She was a woman of sterling qualities of mind and character, always trusted and confided in by her friends. She grew old beautifully, and was cheerful and happy with her children. She was not to say sick at the last but "the weary wheels of life stood still" and she was not, for God had taken her to her home above. She believed in the Bible and religion and practiced the teaching of the word more than professing it. She subscribed to the principles taught by the Universalist faith. The remains arrived on the 7 a.m. train Saturday an were taken to the home of her son, John McTucker, where on Monday Jan 18, at 2 p.m., funeral services were conducted by Rev. W.M. Hailey A choir composed of Mrs. Hailey, Mrs. H.T. Jones, M.T. Stauffer and W.M. Hailey furnished appropriate music. The Women's Relief Corps, of which Mrs. Grammer was a member, had charge of the services at the grave. Interment was made by the side of her husband in Barry cemetery.

http://www.pikecoilgenweb.org/comments.php?id=13493 Barry Adage Wed Mar 19, 1930 John McTucker Prominent Citizen Died Last Thursday John McTucker, son of John and Mary Brown McTucker

1. ↑ John McTucker Obituary.
2. ↑ ^{2.0 2.1 2.2} Park Lawn Cemetery Gravestone Inscriptions, Barry, Pike County, Illinois.
3. ↑ 1850 Census
   Township 4S 5W, Pike County, Illinois, household 378, 10 Sept 1850.
4. ↑ 1860 United States Federal Census
   Barry, Pike County, Illinois, page 4, household 279, 5 July 1860.
5. ↑ 1900 United States Federal Census
   San Antonio, Bexar, Texas, 1012 North Flores Ave., household 153, Enumeration District 91, sheet 9, 9 June 1900.
6. ↑ Mary Grammar’s Obituary.