Jackson ex dem. Bradt v. Brooks

8 Wend. 426 | N.Y. Sup. Ct. | 1832

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, io whom a patent of confirmation was granted by Lieut. Governor Hunter, in November, 1714. To shew 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 Harman us 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. 5 Johns. R. 158. 4 Johns. R. 230. He was, therefore, a competent witness. Vrooman proved the deeds by stating that he was acquainted with the hand writing 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 the lands. Frominspectingsuch deeds he had acquiredaknowledge of the hand writing 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 framed a standard in his mind, from an examination of writings deemed authentic, and with that standard to compare the writings in question. 1 Phil. Ev. 428, Gould’s ed. 1823. 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 has 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 an- “ cient Writings have been treated and regularly preserved ad “ authentic documents.” 7 East, 282, n. and 14 id. 328, 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 Arént 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, dr 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 sixty acres purchased from Glen, he must have done so by the deed of December, 1754, to Harmanus and John; or by theldeed of December, 1758, recited in the bond of Harmanus, John and Arent Andrics 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 common pleas, and recorded in the clerk’s office in 1795. On the 12th January» 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 1854, 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 in 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 a conveyance.

The result of my opinions 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 enclosed 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 divested 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.