Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug
Last revised March 8, 2007
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Duncan research files of |
1810 Schenectady Co. NY Census
Niskuma
Pg. 37 Richard Duncan 10011 - 02002
1820 Schenectady Co. NY Census
No Duncan indexed
1830 Schenectady Co. NY Census
Schenectady, Ward 1
Pg.207 John M. Duncan 0000,101 - 0011,101
1840 Schenectady Co. NY Census
Schenectady
Pg.383 John Duncan 0000,101 - 0001,101
(3 names)
George Duncan 2000,1 - 0000,1
1850 Schenectady Co. NY Census
Schenectady Ward 1
Pg.96, #--, Frederick DUNKAN 30 GERM laborer
George 27, Peter 24 GERM
Schenectady Ward 3
Pg.149, #197, John W. DUNCAN 66 NY grocer $1000
Maria 66 NY
Margaret 33
John 13 NY
Schenectady Ward 4
Pg.160, #313, Richard DUNCAN 41 NY laborer
Mary 30 NY
Mary J. 7, Janett 5 NY
Pg.198, #574, Charles DUNCAN 50 IRE farmer
Rachael 42 IRE
Glenville
Pg.205, #23, Wm. HONSE 48 ENG innkeeper
Mary A. DUNCAN 21 ENG
1860 Schenectady Co. NY Census
Schenectady Ward 3
Pg.173, #768-992, John M. DUNCAN 76 NY (blank) $2000-$100
Margaret 17 DE ("Delaware")
Julia MILES 32 DE
Duncan (m) 11 DE
Schenectady Ward 5
Pg.269, #1442-1808, George FOWLER 64 NY master carpenter $1000-$250
Nellie 76 NY
Richard DUNCAN 54 NY carpenter $1000-$100
Mary E. 45 NY
Jennie L. 14 NY
Mina WARD (m) 22 NY clerk mar/in/year
Anna M. 16 NY mar/in/year
Pg.279, #1504-1897, John THORNTON 25 NY painter $0-$20 mar/in/year
Catharine 22 NY
John H. DUNCAN 7 NY
William McANALL 3 NY
Eva J. DELONG 14 NY
1870 Schenectady Co. NY Census
Schenectady, Ward 3
Pg.396, #136-172, DUNCAN, Margaret 53 NY keeping house $1200-$100
MILES, Julia 50 NY keeping house
Duncan (m) 21 NY carpenter
Schenectady, Ward 5
Pg.471, #216-237, WARD, Mindert? (m) 32 NY R.R. flagman $0-$300
Mary 21 NY keeping house
Minnie 8, Maggie 7 NY attending school
Albert 3, Duncan (m) 1 NY
DUNCAN, Richard 60 NY laborer
Elizabeth 53 NY without occupation
"Reports of cases argued and determined in the Supreme Court and in the Court for the Correction of Errors of the State of New York" by Nicholas Hill; ("Hill's Reports") Vol.2, pgs.105 to 116 (California State Law Library, Sacramento, 1/2004)
KELLY v. THE DUTCH CHURCH OF SCHENECTADY; Supreme Court of Judicature of New York, 2 Hill 105; October, 1841, Decided.
Covenant, tried before Cushman, C. Judge, at the Schenectady Circuit, in October, 1839. The plaintiff declared on a covenant for quiet enjoyment, contained in a lease in fee, of 47 1/4 morgans of land in the County of Schenectady, made by the defendants Dec. 10, 1789, to Samuel Bond and Joseph Bond; and averred that the lessees entered and were seised in fee; that June 28, 1810, Joseph assigned all his interest to Samuel Bond, who thereupon became seised of the whole estate, and continued to seised until May 4, 1827, when he sold and assigned to the plaintiff, who thereupon entered and was seised until he was evicted as after mentioned. The plaintiff then averred that the defendants had no right or title to make the lease or convey the premises, and that the plaintiff had not been permitted, nor had he been able quietly to hold and enjoy the property; but, on the contrary thereof, Richard Bond, the elder, at the time of the making of the lease, had the lawful right and title to the property, and afterwards died seised thereof, when the title descended to his heirs at law. The declaration then proceeded to aver, that certain persons, who were named, were as such heirs seised of three undivided sixth parts of the property; and having such lawful right and title, they entered into the premises, and ejected, expelled, evicted and amoved the plaintiff by due process of law from the possession of the three undivided sixth parts of the property, and still kept him out, etc. The plaintiff also averred, that he gave notice to the defendants of the two ejectment suits brought against him by the heirs of Richard Bond, the elder, to recover the property, in order that the defendants might take charge of the defense of the same; but they neglected to do so. The defendants, after craving oyer and setting out the lease, pleaded seventeen pleas, taking issue on all the material allegations in the declaration.
On the trial, the plaintiff gave in evidence the lease to Samuel and Joseph Bond, and the assignments by which the plaintiff became the owner of the property, as mentioned in the declaration: and it was admitted, that the lessees and their assigns entered under those conveyances, and held the property. The plaintiff also proved a judgment in ejectment against him, docketed January 30, 1836, in favor of Daniel Bond, Richard Bond, Jr., and Susannah Van Antwerp, for two equal undivided sixth parts of the premises in question; also another judgment in ejectment against the plaintiff, docketed July 6, 1835, in favor of Frederick Ouderkirk and Elizabeth, his wife, for one sixth part of the premises in question. Writs of habere facias possessionem were issued on the judgments, and were executed in the one case July 29, 1835, and in the other, February 11, 1836. It also appeared that the plaintiff gave notice to the defendants of the pendency of those suits, and requested them to defend the same.
For the purpose of showing that the plaintiffs in the two ejectment suits claimed title by descent from Richard Bond, the elder, paramount to the title of the defendants, and not derived from the plaintiff or Samuel or Joseph Bond, or either of them, and not for any other purpose, the plaintiff gave in evidence two bills of exceptions which he took on the trial of the two ejectment suits in which he was defendant. The case, as it appeared by those bills of exceptions, was substantially as follows: Richard Bond, the elder, was in possession of the farm at the commencement of the Revolutionary War, claiming it as owner. On the breaking out of the War in 1775, he left his family on the farm, went to Canada, and never returned. He died, as the family understood, about the year 1795, leaving a widow, and leaving also six children, Richard the younger, Samuel, Joseph, Susannah, Elizabeth and Angelica, his heirs at law. Susannah married Peter Van Antwerp, who died prior to the bringing of the ejectment suits; and Elizabeth married Frederick Ouderkirk. Richard Bond, the younger, died, leaving two children, Daniel Bond and Richard Bond, Jr., his heirs at law. The two ejectment suits were brought by Susannah and Elizabeth, with her husband, two of the children of Richard Bond, the elder, and by Daniel and Richard Bond, Jr., who were the children and legal representatives of Richard, the younger, also one of the children of Richard, the elder; and these parties claimed and recovered three undivided sixth parts of the property as the heirs at law of Richard Bond, the elder.
It further appeared, from the bills of exceptions, that all the children of Richard, the elder, except Samuel, moved away, and left him and his mother in possession of the property. So far as appeared, none of the other children heard of the lease which Samuel and Joseph took from the Dutch Church in 1789, until the year 1814. A witness testified, that after hearing of the death of Richard, the elder, and in the year 1796. the children were called together by Samuel and the widow to sign off to Samuel. He offered them $40 each; but another of the heirs offered more, and nothing was done. Another witness testified to a meeting of the children in 1796, when Samuel requested them to sign off to their mother, but they refused. It was proved that Samuel had said, on several occasions after his father went away, that the farm belonged to his father; he said he wished his father would come back and take care of the property; he also said that if the farm was so that he could sell it, he would sell and move away. In 1814 he denied the right of his brothers and sisters, and said he had a sufficient title to hold the property. It was also proved that the widow of Richard, the elder, said that her husband owned the property; that he had a deed for 50 acres of the farm from Peter Plaats, and a deed for the remaining 50 acres from the Dutch Church. She said she had given the old deed to John Duncan for safe-keeping. Angelica Bond testified that Richard Bond, the elder, showed her the deed from Duncan, as he called it. After he went away, his wife took the papers to witness' house; and after the war, she took them back again. She said they were the deeds for her land.
It further appeared from the bills of exceptions, that the defendant in those actions (the now plaintiff) gave in evidence a patent from the Colonial Government of N. Y. to Arent Bradt and Jan Wemp, for a tract of land including the premises in question, which was granted October 16, 1737; also a deed from the patentees to the Dutch Church, dated December 27, 1737. The lease from the Church to Samuel and Joseph Bond in 1789, and the several assignments thereof until the title passed to Kelly, were also given in evidence.
In one of the ejectment suits, the judge charged the jury, that as Richard Bond, the elder, had possession of the premises when he left the State, his wife and children while they remained on the land claiming title under him, must be regarded as holding possession under and for him, and after his death as holding possession under and for all his heirs, and could not legally purchase any other title; and that the lease from the Church to Samuel and Joseph Bond was void as to the other heirs of Richard, the elder, and the plaintiffs were entitled to recover. In the other action the judge charged the jury, in substance, that Samuel and Joseph having entered into or possessed the premises under their father, they could not afterwards deny his title, or set up the title under the lease from the Church, and that the plaintiffs were entitled to recover. Verdicts for the plaintiffs were rendered in both actions, on which judgments were afterwards perfected.
After reading the bills of exceptions, the plaintiff proved that the costs and counsel fees in the ejectment suits amounted, with interest, to $1,268.92; and that the annual rent of the premises for six years, with interest, amounted to $38.14. The defendants thereupon demurred to the evidence; the plaintiff joined in demurrer, and the jury assessed contingent damages in favor of the plaintiff to $1,307.06.
The plaintiff offered evidence and insisted, that in addition to costs, etc., he was entitled to recover the value of the premises at the date of the lease in 1789, with interest for six years, or in lieu of such interest, six years actual annual value of the premises; but the judge decided otherwise, and held that the plaintiff, in addition to costs, etc., was only entitled to recover the annual rent of one shilling and ten pence for every morgan of land reserved by the lease, for six years, with interest thereon, amounting to $38.14. The plaintiff, upon that point, tendered a bill of exceptions. The demurrer to evidence and the bill of exceptions were now brought on for argument.
(MAD: case citations omitted here)
(opinion) By the Court, Bronson, J. It was held at one time that a general covenant for quiet enjoyment extended to a tortious eviction. But it had been decided as early as the Year Book, 26 Hen. VIII., that a covenant of warranty was not broken by the entry of a wrong-doer, because no mischief arises to the lessee, inasmuch as he may have an action of trespass or ejectment against him who ousted him; but if the lessee be ousted by one who has a title paramount, against whom he has no remedy, he may bring covenant against the lessor. And it is now settled, that in an action upon a general covenant for quiet enjoyment, the plaintiff must aver and prove that the person by whom he was evicted had a lawful title to the property; and that he had such title before or at the time of the conveyance by the defendant. It must be both a lawful and a superior title. In the case at bar the plaintiff has properly averred, that Richard Bond, the elder, had a paramount title to the property at the time the defendants made the lease and covenant to Samuel and Joseph Bond in 1789; and that certain of the heirs at law of Richard, having lawful right and title as such heirs, have entered and evicted the plaintiff from three equal undivided sixth parts of the property by due process of law. The defendants have, by their pleas, put in issue the alleged superior title of Richard Bond, the elder, and those claiming under him; and the question is, whether the plaintiff has made out his case by proof.
The plaintiff, when he gave the bills of exceptions in the two ejectment suits in evidence, declared that he did so for the sole purpose of showing how the plaintiffs in those actions claimed title; and he insists now, that the defendants cannot use the evidence for any other purpose. I do not see how this position can be maintained. The bills of exceptions show. not only how Daniel Bond and others claimed title, but on what ground they recovered; and the bills are in their own nature as good evidence to prove the one fact as they are to prove the other. The whole of each of those documents was laid before the jury, and the plaintiff could not, by any preliminary declaration of his object, control the legal effect of the evidence, or prevent the defendants from using such parts of it as might answer their purpose. If the case is to be finally decided on the demurrer as it now stands, we must either reject the bills altogether -- and then the plaintiff has clearly failed to make out a right of action -- or else we must take the whole of the evidence and see how the matter will then stand.
If we look at the whole of the evidence, it appears that the plaintiff has been evicted by persons claiming title as heirs at law of Richard Bond, the elder, who was in possession of the property, claiming as owner before the lease was executed. But it does not appear that they recovered on the ground that Richard Bond, the elder, or those claiming under him, had a title superior to that of the defendants. On the contrary, it was proved in the ejectment suits, that the legal title to the property was in the defendants at the time they made the lease in 1789. This was established by the patent from the Colonial Government to Bradt and Wemp, in 1737, and the deed from the patentees to the defendants two months afterwards. No other paper title was shown. It was proved that the widow of Richard Bond, the elder, said her husband had deeds of the land from Plaats and the Dutch Church; but no such deeds were produced. If what the widow had said about her husband's title was competent evidence against anybody, it was, at the most, only evidence to characterize the possession, and show that her husband claimed as owner; and that fact was sufficiently established by other proof.
The title of the defendants had not been barred by an adverse possession at the time the lease was made. No account is given of the possession prior to 1775, and only fourteen years from that time had elapsed before the lease to Samuel and Joseph Bond was executed. It is averred in the declaration, and was admitted on the trial, that the lessees immediately entered under the lease, and that the possession was continually held under that title until the plaintiff was evicted in 1835.
The plaintiff has neither shown that he was evicted on the ground of a superior title in Richard Bond, the elder, and those claiming under him, nor that there was in fact any such title. Daniel Bond and others recovered in the ejectment suits on the ground that Samuel and Joseph Bond and those claiming under them were not at liberty to set up the title which they acquired from the defendants. Having received the possession originally from their father, they were by that fact, and their subsequent acts and declarations, estopped from denying his title when asserted by the other heirs at law. Upon this state of facts, I am unable to see how the present action can be maintained. The defendants had a good title to convey when they made the lease, and it was either the fault or the misfortune of the lessees that they were not in a condition to protect themselves under that title.
The plaintiff has not been evicted on the ground that Richard Bond, the elder, had a superior title to the property; and although upon this demurrer to evidence, we are to draw every inference in favor of the plaintiff which the jury would have been warranted in making, and to turn doubtful points in his favor, I am unable to say that, in point of fact, Bond had any such superior title. His possession was adverse to the Church, because he claimed the property as his own; but he had not held long enough to bar an entry before the lease was executed and possession taken under it. If he had a paper title, that could only be established by producing the deeds or accounting for their absence.
But it is said that as the defendants had notice, and were requested to defend the ejectment suits, they are now estopped from setting up their title; and that question remains to be considered. Whether the defendants took part and aided the plaintiff in the defense of the suits brought against him, does not appear; but they must at least have furnished him with the means of setting up their title, for it was given in evidence on the trial. And this case is, I think, plainly distinguishable from those to which we have been referred in relation to the effect of notice, for the reason that the defendant's title was not only in evidence in the former suits, but it was virtually admitted to be a good title. The plaintiffs in those actions did not recover on the ground that their right was superior to that of the Dutch Church, but on the ground that the defendant in those suits was precluded by the acts and declarations of his immediate grantors from sheltering himself under the good title of the Church. If the defendants, on receiving notice of a suit upon a title apparently superior to theirs, had neglected to appear and defend, and their title had not been given in evidence, or if when in evidence it had been adjudged defective, they would probably be estopped from setting it up in answer to an action on the covenant. But that is not this case.
There is a short and, I think, conclusive view of this question. The plaintiff has necessarily averred that he was evicted by persons having a title paramount to that of the defendants. Upon that averment issue has been joined. The plaintiff holds the affirmative, and the burden of proof lies upon him. He has not only failed to prove the averment true, but in attempting to do so, he has proved it false. It was not enough for the plaintiff to show that he gave the defendants notice of the suits brought against him, for the obvious reason that the claimants may have recovered on a right or title subordinate that of the defendants. It was necessary, therefore, for the plaintiff to go further, and show on what ground the claimants succeeded. He did so; and the evidence has proved fatal to his cause.
Upon this view of the case the defendants are entitled to judgment. But I must recur once more to the circumstances under which the bills of exceptions were given in evidence. The plaintiff's counsel declared at the time, that the bills were given in evidence for the purpose of showing that the plaintiffs in the ejectment suits claimed title by descent from Richard Bond, the elder, paramount to the title of the defendants; and not for any other purpose. To this course no objection was taken on the part of the defendants, nor did they intimate the wish or intention of making any other use of the evidence. But by afterwards demurring to the evidence, they have spread the whole upon the record; and they now insist that the bills not only show how the plaintiffs in those actions claimed title, but on what ground they recovered. The present plaintiff complains, with some appearance of justice, that this course operates as a surprise upon him, and says he would have given further evidence on the trial if the defendants had taken their ground at the time the bills of exceptions were laid before the jury. We know from another case which has been before us, that the plaintiff could have given further evidence tending to show a paramount title in Richard Bond, the elder, if he had supposed it necessary to do so; and under the special circumstances of this case, I think the ends of justice will be better answered by ordering a new trial, than they would be by rendering judgment on the demurrer.
Should the plaintiff ultimately fail in this action, he will not be without the means of redress. The title which he derived through Samuel and Joseph Bond from the Dutch Church has not failed. The point decided in the ejectment suits was, that as Samuel and Joseph Bond had received the possession from their father, neither they, nor their grantee, could set up a title subsequently acquired from a stranger, until the possession had been restored. When the heirs of Richard Bond, the elder, regained the possession, the estoppel was at an end, and the plaintiff was at liberty to bring a new action founded upon his title. Whether the statute relating to the action of ejectment will present any obstacle to a recovery, is a question not now before us.
The bill of exceptions presents but a single question. I think the judge was right in following the rule of damages which was laid down in Kinney v. Watts, 14 Wend. 38. It is there said by Sutherland, J., that as the lessee paid no purchase money, he can recover none back upon eviction; and in respect to the improvements he may have made upon the premises, and the money expended upon them, he stands precisely upon the same footing with a purchaser, who recovers nothing for improvements or expenditures. Under a general covenant for quiet enjoyment, the rule of damages is settled in relation to a purchaser who has been evicted. He recovers back the consideration money paid for the land, with interest on the amount for a period not exceeding six years. The price agreed upon by the parties is taken as the true value of the land without any reference to the actual value. Following that analogy, the rents reserved in a lease, where no other consideration is paid, must be regarded as a just equivalent for the use of the demised premises. The parties have agreed so to consider it. In case of eviction, the rent ceases; and the lessee is relieved from a burden which must be deemed equal to the benefit which he would have derived from the continued enjoyment of the property. Having lost nothing, he can recover no damages. He is, however, entitled to the costs he has been put to; and as he is answerable to the true owner for the mesne profits of the land for a period not exceeding six years, he may recover back the rent he has paid during that time with the interest thereon. If this rule will not always afford a sufficient indemnity to the lessee, I can only say, as has often been said in relation to a purchaser, he should protect himself by requiring other covenants.
New trial granted, on the payment of costs by the plaintiff. If the costs are not paid, then judgment for the defendants. Rule accordingly.
"Reports of cases argued and determined in the Supreme Court of Judicature : and in the Court for the Trial of Impeachments and the Correction of Errors of the State of New York" by John L. Wendell; ("Wendell's Reports") Vol.8, pgs.426 to 434 (California State Law Library, Sacramento, 1/2004)
JACKSON, ex dem. BRADT and others v. BROOKS; Supreme Court of Judicature of New York; 8 Wend. 426; January, 1832, Decided.
This was an action of ejectment, tried at the Schenectady Circuit in Sep., 1827, before the Hon. William A. Duer, then one of the Circuit Judges.
On the trial the following documentary testimony was exhibited: 1. Leters patent of the Schenectady patent, granted Nov. 17, 1684, unto Ryert Schermerhorn, and four others, in behalf of the inhabitants of the Town of Schenectady, their associates, heirs, successors and assigns. 2. A deed from Ryert Schermerhorn, surviving patentee, to William Appel, dated Oct. 23, 1714, conveying the whole tract in trust that the grantee should reconvey the same to the grantor and four others, viz.: Jan Wemp, Johannes Teller, Arent Bradt and Barent Wemp, so that the land should be held according to the true intent of the letters patent. 3. A deed to the five persons last named from William Appel, in execution of the trust, dated Oct. 26, 1714, by which the whole tract was conveyed to the grantees, in trust for themselves and the other inhabitants and freeholders of the Town of Schenectady, their heirs and assigns forever. 4. Letters patent of confirmation, under date of Nov. 6, 1814, by which the same tract was granted, ratified and confirmed unto the grantees in the deed of William Appel named, in trust for themselves and the other inhabitants and freeholders of the Town of Schenectady, their heirs and assigns forever. 5. A deed from Jan Wemp and Arent Bradt, as patentees in trust for the then Township of Schenectady, to Jacob Glen, bearing date Mar. 1, 1733, conveying 60 acres of land in fee simple to the grantee for the consideration of £30. 6. A deed from Jacob Glen to Arent Bradt, of the same premises, for the same consideration, bearing date Mar. 3, 1733. The last two deeds were thus proved: L. Vrooman, a son-in-law of Harmanus Bradt, and executor of his will, testified that they were found by him amongst the deeds, evidences and muniments of title of the estate of his testator; that the grantors and witnesses to the deed from Wemp and Bradt to Glen had been dead many years, and for too long a period of time for any person living to swear to their handwriting from having seen them write; that the witnesses to the deed were Abraham Mabee and Nicholas Schuyler; that he had in his possession several deeds to which were subscribed the names of Wemp and Bradt as grantors, and of Mabee and Schuyler as witnesses, some of which were the title deeds to his own property; that he had acquired a knowledge of the handwriting of those grantors and witnesses by inspecting the deed in his possession, and that from the knowledge thus acquired he could swear that the signatures of the grantors and witnesses to the deed from Wemp and Bradt to Glen were the genuine handwriting of the grantors and witnesses. This evidence was objected to, as well on the ground of the alleged incompetency of the witness, he being a tenant by the curtesy as to part of the premises claimed, as on account of the insufficiency of the evidence, but the judge overruled the objection. The deed from Glen to Bradt was proved by like evidence. 7. On the part of the plaintiff there was also read in evidence a deed from Arent Bradt, the elder, to his two sons, Harmanus and John, bearing date Dec. 9, 1754, by which the grantor conveyed to the grantees in fee in joint tenancy, the whole tract included in the original letters patent, to hold in trust for themselves and the other inhabitants and freeholders of the Town of Schenectady, their heirs and assigns forever. This deed was proved in like manner as the deeds to and from Glen were proved. 8. A bond from Harmanus Bradt, John A. Bradt and Arent Andries Bradt to Arent Bradt the elder, bearing date Dec. 21, 1758, which, after reciting that Arent Bradt the elder had by deed of conveyance of that date, granted and conveyed unto John A. Bradt and Arent Andries Bradt all his estate real and personal of which he was possessed, was conditioned that the obligors should permit the obligee to hold and possess all his lands and tenements, goods and chattels, during the term of his natural life. This bond was probably found among the papers of Harmanus Bradt, one of the obligors. In addition to the documentary evidence, it was proved that Arent Bradt, the elder, died about 50 years before the trial; that he had three sons, Andries, the eldest, Harmanus and John; that Andries died in the lifetime of his father, leaving two sons, Arent and John; that Arent, the son of Andries, died about 20 years before the trial, leaving five children; that Harmanus died since 1800, leaving a number of children and grandchildren, and that John, the son of Arent the elder, died without issue, leaving his brother Harmanus him surviving. The premises in question are about 30 acres; part of the premises conveyed by Glen to Arent Bradt the elder, and the lessors of the plaintiff are the children of Arent the younger, and the children and grandchildren of Harmanus.
On the part of the defendant, to defeat the title as set up as derived by descent from Arent Bradt, the elder, to Arent Bradt, the younger, and from him to his descendants, there was read in evidence a deed from Arent Bradt, the younger, to John Duncan, bearing date Sep. 6, 1785, conveying a full and equal undivided moiety of all the estate, right and title of the grantor to the town lands comprehended within the limits of the original patent of the Township of Schenectady; and there was also read in evidence an agreement in writing, under seal, executed by Arent Bradt, the younger, bearing date on the same day with the deed to Duncan, in which, after reciting that he (Arent Bradt, the younger) had on that day conveyed all his share of the town lands of Schenectady to Ryert Schermerhorn and John Duncan, to each of them one full and equal undivided half, the whole so conveyed as to comprehend at least one proprietor's full share, Arent Bradt, the younger, covenanted that should it appear at any future day that all, or any part of the premises so conveyed, had been before conveyed by him, or any of his ancestors, so that the conveyance to Schermerhorn and Duncan should be defeated, and they not be enabled to enjoy the premises conveyed to them, that he would, on due notice, pay to Duncan, his heirs, etc., the sum of £30, being the sum paid for the half conveyed to him, or a proportionate sum, according to the quantity of land lost by such previous conveyances. And to defeat the title set up under Harmanus Bradt, the defendant read in evidence: 1. An exemplification of the last will and testament of Arent Bradt, the elder, bearing date Mar. 11, 1735, by which the testator devised all the right which he had to the lands granted by the Schenectady patent, as surviving patentee in trust for the Township of Schenectady, unto his son Harmanus Bradt and 19 other persons, and to their heirs and assigns forever, in trust for themselves and the other inhabitants and freeholders of the Town of Schenectady. The sufficiency of this evidence was objected to, because it appeared that the will had been proved in the C. P. of Albany by only one of three subscribing witnesses. With the exemplification of the will, there was also an exemplification of a certificate of the surrogate of Albany, bearing date Nov. 19, 1770, stating that the will had been duly proved before him by all three of the witnesses. The objection was overruled. 2. A deed from Harmanus Bradt and 7 others, describing themselves as surviving trustees of the Township of Schenectady, to Michael Tyms, bearing date Jan. 12, 1795, conveying the lands granted by the Schenectady patent, excepting so much thereof as had been in anywise disposed of, or conveyed by them or their predecessors, upon trust that he should convey the same premises to 11 persons named in the deed, and to the survivor and survivors of them, his and their heirs and assigns forever, in trust for themselves and the other inhabitants and freeholders of the Town of Schenectady. And 3. The Act of Incorporation of the City of Schenectady passed in 1798, whereby the Legislature declared that the property held in trust by the Trustees of the Town of Schenectady should vest in the Corporation of the city. The defendants also gave in evidence two other deeds: 1. A deed from Arent Bradt, the elder, to Klaas Van Patten, bearing date July 18, 1738, whereby, after reciting the conveyance of 1733 from Van Wemp and Bradt to Glen, and the reconveyance by Glen to Bradt the grantor, conveyed 5 morgans and 560 rods of land, part of the premises described in those deeds, to the grantee; and it was proved that the heirs of the grantee, and the defendant in this cause who derives his title from them, for 30 years preceding the trial had possessed the same; and 2. A deed from the Trustees of the Town of Schenectady to Aaron R. Schermerhorn, bearing date Dec. 4, 1797, conveying to the grantee 7 acres and 3 roods of land, part of the premises claimed by the lessors of the plaintiff, and proved that the same had been possessed under such conveyance from its date, the grantee having transferred the land to the defendant about six years before the trial. It was further proved that the premises claimed by the lessors of the plaintiff, with the exception of the last two described parcels, were always called and reputed as common lands, and that the inhabitants of Schenectady cut wood upon them as common lands belonging to Schenectady until 1821, when the common lands of the city were sold; at which time the defendant bought the premises in question, and entered into possession thereof. On these facts a verdict was entered for the plaintiff, subject to the opinion of the court on a case made. (MAD: more omitted here)
(opinion) By the Court, Savage, Ch. J. By the documentary evidence produced, the title to the patent of Schenectady is traced to Jan Wemp, Johannes Teller, Arent Bradt and Barent Wemp, to whom a patent of confirmation was granted by Lieut.-Governor Hunter, in Nov., 1714. To show title in Arent Bradt, the deeds from Wempt and Bradt, surviving trustees, to Glen, and from Glen to Bradt, were offered as ancient deeds. It does not appear that they were received as such, and they clearly were not entitled to be so received, as there was no possession under them of the premises in question. It became necessary, therefore, to prove them. For this purpose Lawrence Vrooman was introduced as a witness, who was objected to on the ground of interest, having married one of the daughters of Harmanus Bradt, and his children by her being some of the lessors of the plaintiff. He was entitled to an estate for life in the property of his wife, and so long as he lives, his children cannot recover the property in an action of ejectment -- they have no right of possession till the death of their father. If the plaintiff recovers in this suit, the verdict cannot be evidence for the witness in any suit which he may bring; his interest is, therefore, an interest in the question, and not in the event of this suit. It is like the interest of a widow in an action for her husband's estate, and she is competent. He was, therefore a competent witness. Vrooman proved the deeds by stating that he was acquainted with the handwriting of the grantors and witnesses, not by having seen them or either of them write, but from the examination of deeds executed by them, and in his possession, as the evidences of title to the lands of Harmanus Bradt, of which since his death he has had the custody; that the deeds in question were found among the papers of Harmanus Bradt; that he has many deeds signed by the same grantors in the presence of the same witnesses, some of which are the evidence of his own title to lands. From inspecting such deeds he had acquired a knowledge of the handwriting of the grantors and witnesses, and from such knowledge he testified to the genuineness of the signatures. The parties were all dead so long ago that no person living could have seen them write. On this testimony they were received in evidence, though objected to.
Evidence of this description has been distinguished from comparison of hands. The witness is supposed to have formed a standard in his mind, from an examination of writings deemed authentic, and with that standard to compare the writings in question. It is added: "When the antiquity of a writing purporting to bear a person's signature, makes it impossible for a witness to swear that he had ever seen the party write, it has been held sufficient that the witness should have become acquainted with his manner of signing his name, by inspecting other ancient writings which bear the same signature, provided those ancient writings have been treated and regularly preserved as authentic documents." The documents in this case, from an examination of which the witness formed his opinion, have been preserved as muniments of title, and constitute the evidence of the title of the defendant himself to a small piece of land included in the same deed with the premises in dispute. The deeds, therefore, from Jan Wemp and Arent Bradt to Jacob Glen, and from the latter to Arent Bradt, must be considered as sufficiently proved, and they show title in Arent Bradt.
It was contended upon the argument, that if Arent Bradt took under the deed from Glen, he must be deemed to have taken as trustee. I doubt whether such is to be the effect of the conveyances in this instance. The trustees no doubt had power to make a valid sale; the lands included in the patent were intended for cultivation; they were to be conveyed for a sufficient consideration, to such as wished to purchase; the consideration money is presumed to have been received by the trustees and accounted for by them to their cestuis que trust; the property being in Glen, there can be no objection to his selling to Bradt, or in Bradt's purchasing. Whatever remedies there may be in chancery, we are pursuing the legal title; that title was vested in Arent Bradt, the elder, as his individual property by the deed from Glen, and if he did not part with his interest by a valid conveyance, the title vested in his grandson, Arent Bradt, who was the eldest son of Andries, who was the eldest son of Arent Bradt, the elder, who died before 1770, and his real estate descended according to the rules of the common law.
If Arent Bradt, the elder, ever conveyed the 60 acres purchased from Glen, he must have done so by the deed of Dec. 1754, to Harmanus and John; or by the deed of Dec., 1758, recited in the bond of Harmanus, John and Arent Andries Bradt; or by his last will and testament, in 1765, by which he devised the whole patent to Harmanus and others.
The deed to Harmanus and John in joint tenancy, is broad enough in its terms to include the premises in question, but most probably the intention of the grantor was to convey his interest as surviving trustee. At John's death the whole estate vested in Harmanus.
The deed alluded to in the bond of 1758 is not produced, and all the evidence we have of its existence is a bond in which Arent Bradt, the elder, is obligee. There is no positive evidence as to where this bond was found, nor that it was ever in the possession of the obligee. The recital, therefore, proves nothing; it is not found in any deed executed by the grantor in the supposed deed, but in an instrument executed by the supposed grantees. It is nothing more than their assertion of the fact, which cannot be evidence in their own favor.
The will of Arent Bradt, the elder, was properly received in evidence; it contains a devise of the whole patent and all the interest of the testator, as surviving patentee, to Harmanus Bradt and others. It is dated in 1765, was proved before the surrogate in 1770, and again in the C. P., and recorded in the clerk's office in 1795. Jan. 12, 1795, Harmanus Bradt and the survivors of the trustees to whom the patent was devised by Arent Bradt, conveyed the patent in fee simple to Michael Tyms, except so much as had been previously conveyed by them or by their predecessors, upon trust that Tyms would reconvey the same to the same trustees and several other persons in trust for themselves and the inhabitants and freeholders of Schenectady.
If, as the plaintiff contends, the estate of Arent Bradt, the elder, in the premises in question, passed by the deed of 1754, to Harmanus and John, John having died before 1795, the date of the conveyance to Tyms, the estate conveyed by the deed of 1754, and that conveyed by the will, passed from Harmanus by the deed to Tyms; and if the presumption of law is, as it is contended, that Tyms must have reconveyed to the trustees named, then the title was in those trustees, of whom Harmanus Bradt was one in 1798, when the city was incorporated, and when the Legislature declared that the property thus held in trust should vest in the Corporation.
If the premises in question did not pass by the deed of 1754, or by the will in 1765, then it must have descended upon the death of Arent Bradt, the elder, to Arent Bradt, the younger, and he conveyed it to Ryer Schermerhorn and John Duncan, one half to each, in 1785. The conveyance to Duncan only is produced; but the accompanying instrument executed by Arent Bradt, the younger, recites a conveyance of the other half to Ryer Schermerhorn. This recital is a solemn instrument under seal, wherein the obligor states that he made the conveyance, seems to me to be sufficient evidence of the fact of such conveyance.
The result of my opinion is that the lessor cannot recover either under the title of Arent Bradt, the younger, or of Harmanus Bradt.
Had the plaintiff substantiated his right to recover any part of the premises conveyed to Glen, and by him to Arent Bradt, the elder, that part which the defendant claims under Klaas Van Patten would be protected by the title derived from Arent Bradt, the elder. As to the premises not inclosed before the sale of 1821, there could be no adverse possession; if the title was in the Bradts, the possession was also constructively in them, there being no actual possession; they would not be devested of the possession by the acts of others in cutting wood. These however, are questions not necessary to be discussed, as the lessor must fail on the ground that both Harmanus and Arent Bradt, the younger, conveyed away all the title they or either of them ever had.
Judgment for defendant.
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