Bogardus v. Trinity Church.

NATHANIEL BOGARDUS and others v. THE RECTOR, CHURCHWARDENS AND VESTRYMEN OF TRINITY CHURCH IN THE CITY OF NEW YORK, WILLIAM BERRIAN, AND WILLIAM JOHNSON. (a)

In ascertaining facts relative to the possession and claim of lands, which occurred more than a century prior to the inquiry, courts receive evidence, which would be inadmissible, if offered to prove events occurring within the period of the memory of living witnesses.

In such cases, the statements of historians of established merit, (as to facts of a public and general nature;) the recitals in public records, in statutes and legislative journals; the proceedings in courts of justice, and their averments and results; and the depositions of witnesses in suits or legal controversies; are received as evidence of facts to which they relate; but always with great caution, and with due allowance for its imperfection and its capability of misleading.

On this principle, the parties were allowed to read in evidence, the clerk's minutes of a trial had eighty-five years previous, affecting the possession of the same land; depositions or affidavits taken before a judge, ninety-four years previous, also sixty years previous, apparently for use in a judicial proceeding respecting the possession; recitals, boundaries and designations, touching the same land, contained in statutes and public grants and charters; other proofs of a name or designation, commonly and notoriously applied to the land in question; ancient maps and the descriptions and delineations thereon; and an authentic history of the province at large.

In proving an ancient possession and its character, the counterparts of leases executed by tenants to the party claiming to have been in possession, produced from the proper custody; are admissible in evidence, without any proof of the execution of the corresponding lease executed by the landlord.

Letters patent of land, are emanations from the sovereign power, the evidences of the pleasure or bounty of the government, and are attested by the governmental authorities, as public acts.

Being alienations by matter of record, letters patent do not require the signature of the sovereign or the governor to render them valid. The grant is of record in the government offices; the letters patent are a transcript of the grant, authenticated by the great seal.

In grants of lands by the colonial governors, they did not act as mere private attorneys or agents of the sovereign. They were executing the sovereign power, as viceroys or representatives, in the name of the king, and in the same forms as if they had been executed by hin.

In the colonial legislation, statutes enacted by the assembly and approved by the

(a) For a table of contents of this voluminous case, see note at the end of the

Bogardus v. Trinity Church.

governor and council, were valid and operative immediately; they continued in force unless they were disapproved by the king; and upon that happening, they became annulled.

Rights which were acquired under a colonial statute, after its passage, and before it was disapproved by the sovereign, were not abrogated or impaired by such disapproval,

Where one enters upon land, under a deed in terms conveying the whole in fee' executed by several persons described as heirs of the party last seised; the presumption of law is that he entered in severalty, claiming the whole land in fee adversely to all the world; although it should be made to appear, that there were other heirs, tenants in common with his grantors, who did not execute such deed.

To found the defence of adverse enjoyment under a claim of title, it is immaterial whether the claim be made under a deed valid in form, or under one wanting in all the essentials of a proper conveyance.

An actual occupancy by one claiming the title, is a good adverse possession, without any written evidence of title.

Where land has been held in possession for eighty years under a grant of the whole, claiming the whole title; the title thus acquired, cannot be shaken or impaired by an admission made by its then owner, that the grantor in such original grant, was only a tenant in common; nor by proof of the fact that he was such tenant in common.

A title, which has become perfect by an adverse possession extending beyond the period of limitation, is not affected by an entry made by one who by descent is the owner of the true title which is thereby barred.

The latter, if he maintained his entry, would be turned out in an ejectment, on proof of the title by adverse possession.

Such an entry, differs in no respect from that of a stranger to the title. If made upon a tenement temporarily vacant, the party is an intruder; if by the consent or yielding up of a tenant, the possession of the landlord is not disturbed. An entry into land, is not valid as a claim, unless an action be commenced thereon within one year after it is made, and within twenty years from the time when the right to make such entry accrued or descended. Such has been the rule of law for two hundred years, and it is now a statutory provision.

Where a corporation, whose income is limited by its charter, receives a grant of land of an annual value below such limit; its title to the same is not affected by the subsequent increase of the income therefrom to a point beyond the chartered

limitation.

If the income exceed the prescribed limit at the time of the grant, it is a question between the corporation and the sovereign power, in which individuals have no concern, and of which they cannot avail themselves in any mode against the corporation.

Where there are negative averments, in a plea of adverse possession claiming title in severalty, to the effect that the defendant has never paid or accounted for any rents or profits; and has never held or possessed the land in common, or undivided, &c.; the principal burthen of proof is upon the complainants. The defendants are only bound to raise a presumption from their acts in respect of

Bogardus v Trinity Church.

the property, its use and disposal, that no such facts exist; which presumption must be rebutted by proof on the other side.

In support of a plea in equity, the defendants are bound to prove only its substance, and to such an extent as will maintain the bar which it interposes to the suit. Where the defence stated in the plea, was an adverse possession under a claim of title exclusive of any other right, for a period of one hundred and twenty-five years, before the suit; the legal point of the defence is, that the defendant has maintained such possession long enough to bar a writ of right; and proof of such a possession and claim for sixty years anterior to the revolution, was held to support the plea. And the like proof for forty-four years next preceding the suit, was held to support the plea, irrespective of the prior possession.

Argued, Dec 26, 27, 29, 30, 31, 1845; January 3; February 2, 3, 4, 5, 6, 7 and 9, 1816; and January 20, 1847; Decided June 23, 1817.

THE bill in this cause was filed by John Bogardus, on the 11th day of December, 1830. William Berrian was made defendant, as the rector of the church, and William Johnson, as their comptroller. The defendants, in October, 1831, put in the plea and answer hereinafter set forth. The cause was brought to a hearing on the sufficiency of the plea, at the October term, 1831, before the chancellor, by whom it was allowed, on the sixth of August, 1833. (Bogardus v. Trinity Church, 4 Paige, 178.) In the mean time, on the 8th of March, 1833, the complainant died, and on the 23d of October, 1834, the suit was revived on a bill of revivor, in behalf of his heirs. The decree allowing the plea having been entered as of November 4 h, 1831, the complainants in the revived suit appealed to the court for the correction of errors, where the decree was affirmed in December, 1835. (15 Wend. 111.) The complainants then took issue upon the plea, by filing a replication. Proofs were taken on both sides, and the cause was finally brought to a hearing in December, 1815, and February, 1816, before Assistant Vice-Chancellor Sandford. His decision was suspended on the occasion mentioned in the report of the interlocutory application, ante page 359, until after he became vice-chancellor, and it was finally submitted to him in January, 1817. Besides the documentary evidence and proofs taken in the usual mode before the examiner, many witnesses were examined in open court during the progress of the hearing, which occupied thirteen days. The great magnitude of the claim made by the suit, and the histori

Bogardus v. Trinity Church.

cal interest of the case, furnish the reasons for reporting it somewhat at large.

THE BILL set forth that the complainant, John Bogardus, of the city of New York, is a descendant of the paternal line from Cornelius Bogardus, one of the sons of Everardus Bogardus and Anneke Jans his wife; and as such, is entitled in equity, to a portion of large sums received by the ecclesiastical corporation in that city, called Trinity Church, on leases and sales of real estate, as trustee for the complainant; and to be secured in respect of further receipts on such leases and grants.

That his ancestors, before named, were the same persons intended by the names "Dominie Everardus and Anneke Jans, the widow and relict of Dominie Everardus Bogardus," in a certain deed, executed by Richard Nicolls, governor of the province of New York, dated March 27, 1667, and duly recorded in the secretary's office; by which deed the governor, acting for the Duke of York, pursuant to the article in the Dutch capitulation of August 27, 1664, confirming and securing all existing titles to real estate, acknowledged the right and title of the children of Anneke Jans to have and to hold the lands therein described, in their demesne as of fee as tenants in common, and did grant and confirm such title to her children.

That Anneke Jans died in 1663, leaving seven children, and two grandchildren by a deceased child, all of whom were named in her will, as follows; Sarah Roeloffe, wife of Hans Kiersted, Catharine Roeloffe, wife of Johannes Van Brugh, Jannettee and Rachel Hartgers, children of Anneke's deceased daughter Sytie Roeloffe, wife of Peter Hartgers, Jans Roeloffe, and Wilhelm, Cornelius, Jonas and Peter Bogardus. That Anneke Jans devised the real estate before mentioned to those persons as her heirs, she having survived her first husband, Roeloffe Jans, as well as her second husband, E. Bogardus. That such real estate is the same as that described in a transfer or conveyance to Francis Lovelace, dated March 9, 1670-71, and recorded in book No. A. of transports, begun in 1665, at page 122, in the clerk's office of the city and county of New York, executed by certain of the heirs of Anneke therein named, under which instrument

Bogardus v. Trinity Church.

Trinity Church has claimed to hold by certain mesne conveyances after stated, all the rights, shares, and titles to the lands. by such instrument conveyed, intended, or described.

That the church made such their claims in writing, in the words following, viz. :

"New York, 2d December, 1785. Gentlemen, we take the earliest opportunity of communicating to you the enclosed copy of the record of a transfer to governor Lovelace of Dominie's Hook, from the heirs of Annetje Bogardus, and to which, though afterwards granted by government to Trinity Church, you now claim to have inherited from them. Time and long uninterrupted possession had, it seems, worn away the memory of this transfer, and the evidence of it would probably still have remained dormant, if Mr. De Hart (who is deeply interested in your claims,) had not accidentally discovered this record, and from a regard to justice, which does him great honour, made it known." That the written claim was addressed to certain agents for the heirs of Anneke Bogardus, and was signed by "Jas. Duane, John Jay, Wm. Duer, John Rutherford, James Farquhar," as "a committee of Trinity Church for managing their controversy with the heirs of Anneke Bogardus."

That the enclosed copy of the record of transfer to "Governor Lovelace," was in the words and figures following, viz.

"Anno 1670-71, March the 9th, Hare Johannes Van Brugh, in right of Catrina Roeloss his wife, and attorney of Pieter Hartgers, William Bogard us, for himself and his brothers Jan Roelosson and Jonas Bogardus and Cornelius Van Bursen, in right of Sara Roeloss his wife, and by assignment of Peter Bogardus, all children and lawful heirs of Annetie Roeloss, late widow of Dome Bogardus, deceased, for a valuable consideration, transported and made over unto the Right Honble Colonel Francis Lovelace, his heirs and assigns, their farm or bouwery, commonly called or known by the name of Domenee's Bouwery, lying and being on Manhattan's Island, towards the North River, the quantity of ye land amounting to about sixty-two acres, as in the former ground brief from Governor Stuyvesant, bearing date the 4th day of July, 1651, and the confirmation thereupon from Governor R. Nicolls, bearing date ye 27th of March, 1667, is more particularly