USA > New York > New York City > A history of the parish of Trinity Church in the city of New York, pt 2 > Part 25
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It will be noticed that the " farm " is identified by the reference to Gov. Nicolls's confirmatory grant. The price paid for the property is not stated. The purchase would appear to have been made by Lovelace on his private account (the grant runs to "his heirs and assigns"), but whether he bought for himself or as Governor is unimportant, as all his property-and he had been a large purchaser of land - was ultimately confiscated to the British Crown on account of his indebtedness as Governor.
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Immediately after his purchase, however, Lovelacc incorporated the "farm" with the parcel which bounded it on the south known as the "Company's" land, and by so doing would seem to have treated his purchase as being on account of the government. The Company's farm was the land of the West India Company, which upon the con- quest of the Colony by the British became part of the property of the Duke of York. In the Nicolls patent the southern boundary of the Anncke Jans farm is "the fence of the land belonging to the company."
The consolidation of the two farms is shown by a lease which Love- lace, after the purchase from the heirs, proceeded at once to make to one Dirck Seckers or Siecken for three years from the 25th March, 1671, to 25th March, 1674. This appears from a record of the lease lately found among the Dutch records at Albany, which is here given in full :
"Mr. Isack Bedloo, as attorncy and by order of the Honourable Governour Francis Lovelace, on one side, and Dirck Siecken, farmer, on the other side, have in friendship and good feeling made a contract concerning the lease of the below mentioned farms and dependencies thereof under these conditions, to wit :
"Said Isack Bedloo attorney as aforesaid declares to have let and said Dirck Siecken admits having rented for the term of three consecu- tive years, beginning on the 25th day of March, next and ending on the 25th day of March A. D. 1674, certain lands belonging to the Hon- ourable lessor outside of the land gate of this city, called the Old Com- panys Bouwerie and Dominies Bouwerie (farms), with all the pasture and woodland and half of the valley and other privileges thereto be- longing as the same has heretofore been held and used in lease by said Dirck Siecken, who shall have the right to cultivate, pasture and use the said lands according to his pleasure during the term of his lease, without the lessor having the power to prevent or molest and tax him with the pasturage of any horses or cattle, unless with the free will and permission of the lessec, Dirck Siecken aforcsaid.
" The lessee, Dirck Siecken, shall be allowed to live in and use the old dwelling house or to remove from it, when he thinks fit, without be- ing in anywise held or obliged to bear any risks for said house, but all the deterioration or decay of it shall be at the expense of the lessor.
"It is covenanted and agreed, that the lessee, Dirck Siecken, shall be allowed to move the hay and grainstacks now standing near the old house, to any place, where he thinks it fit, even beyond the boundaries of lessor's land.
" The lessee, Dirck Siecken, shall be held and obliged to deliver the
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land at the end of his term properly fenced, that is in the same way, as lessee is obliged to deliver these fences to lessor now at the expiration of his former lease.
"The lessee, Dirck Siecken, undertakes and promises to pay or cause to be paid to lessor as rent for these farms, the sum of six hundred guilders (240.00/00) in wampum or its value in good merchandise for each year before or at the end of each year of his term, which is as aforesaid on the 25th of March of these years of lease. For the carry- ing out of the foregoing conditions the parties of the first and of the second part bind their persons and property, real and personal, submit- ting to all laws and courts. In Testimony Whereof, the original record has been signed in my presence by lessor and lessee at New York, the 25th of February 1671/2. CHRISTOFFELL HOOGHLAND and PIETER JACOBSEN MARIUS, witness. "Attest :
"N. BAYARD, Secretary."
It will be seen by this lease that it was a renewal to Dirck Siecken of a lease he already held, the description defining the property " as the same has heretofore been held and used in lease by said Dirck Siecken." He was probably in occupation as tenant when the "heirs " sold to Lovelace. And the land is described as fenced, the tenant undertaking to surrender the land " properly fenced, that is in the same way, as lessee is obliged to deliver these fences to lessor now at the expiration of his former lease." 1
Before this lease expired the Colony had been retaken from the English by the Dutch in 1673, and Lovelace disappeared both as Governor and as landlord of the farm. The occupation by the Dutch, however, was for a period of only about fifteen months, as the Colony reverted to the English on peace being made between England and Holland. During this short interregnum Dirck Siecken does not ap- pear to have been disturbed as tenant of the farm. He probably held over for a year or two after the termination of his lease from Lovelace, for we find that Governor Andros renewed the lease to Dirck Siecken for twenty years from March 25, 1677 (4 Sandf. Ch. Rep., 727). Siecken held under this lease until 1697, and he is accordingly shown in occu- pation of the entire farm as tenant of the English Governors, paying them rent from 1670 to 1697, twenty-seven years, without there having . been, so far as appears, any complaint or claim of title on the part of the Anneke Jans-Bogardus heirs.
1 Land being fenced is an important fact in all questions of adverse possession, a fence being a visible sign of ownership, of exclusion as against others.
fs.
:
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These facts establish conclusively that the popular error, made much of in the controversies of 1784, that the farm had been lost to the " heirs " by the aggressions of a rich and powerful ecclesiastical corpo- ration, has no basis whatever. The heirs sold the farm to the English Governor twenty-seven years before the movement to establish Trin- ity Church was set on foot, in 1697, and the entire tract, consisting, as the lease from Andros shows, of the Company's Bowerie and of the Dominie's Bowerie adjoining it on the north, was held in undisputed possession by the tenant of the English Governors during all this period, he paying rent to them.
Fletcher, who was then Governor, gave to the Church when incor- porated, in 1697, a lease of the farm dated Aug. 19, 1697, for seven years. Siecken's lease had expired, but he apparently remained in possession as sub-tenant of the Church. The lease to the Church was subsequently extended by Governor Cornbury for the term of his of- fice at a rental of sixty bushels of wheat. Cornbury remained Gov- ernor until 1708, when the lease would by its terms have come to an end, but before this date the grant from Queen Anne was obtained in 1705, one George Ryerse being then in possession as under-tenant of the Church. Ryerse was one of the family of Dirck Siecken, whose rights as lessee he had acquired, and so the continuous occupation of the farm for thirty-four years by tenants, at first of the English Governors, and then of the Church, an occupation never disturbed by any adverse claim, is brought down to the date of Queen Anne's grant, in which the farm is described, as already stated, " as formerly called the Duke's Farme and the King's Farme, now known by the name of the Queen's Farme . as the same are now in the occupation of George Ryerse."
There can be no doubt, as already shown, that the "Queen's Farme " so granted was composed of the same tract leased by Lovelace to Dirck Siecken in 1671 by the description of the "Old Companys Bouwerie and Dominies Bouwerie," occupied, cultivated, and kept in fence by him, and it is equally certain that the heirs of Anneke Jans Bogardus acquiesced during all this period in the sale to Lovelace as having ended all their rights in the property.
The acquiescence was still longer. There is no evidence of any assertion of right on the part of any claimant earlier than the minute of the Vestry of August, 1738, relating to the claim set up " by the heirs of one Bogardus." This was sixty-eight years after the cession to Lovelace. At this date there was certainly no one living of the parties to that grant.
The " claim " soon took the form of aggressive trespasses by the
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so-called heirs upon the tenants of the Church. In 1746 an indictment was found against Jacob Brower and others for a forcible entry upon the possession of one Vredenburg, who at this time held a portion of the farm under lease from the Church, and the defendants were con- victed on the 3d of August, 1746, the adjudication being that the tres- passers had no estate or right in the premises. As this proceeding, however, affected only the particular parcel intruded on, it was, of course, indecisive as to the rest of the farm. In 1749, however, a suit in ejectment was commenced by Cornelius Brower, which was dis- missed for want of prosecution in 1752. In 1758 another suit in eject- ment was commenced by the same or another Brower for sixty-three acres of land (the area of the Anneke Jans farm) against the Church tenants. This action was tried "at the bar" of the Supreme Court, a privilege granted on special application on the ground of the impor- tance of the controversy. The following notice of the trial appeared in the New - York Mercury of October 27, 1760 :
" Last Week a remarkable Tryal, which has been in the Law nearly 20 years, came on in the Supreme Court here, between The Rector and Inhabitants of the City of New- York of the Church of England, as by Law established, and the family of the Browers, who sued for 62 acres of the King's Farm ; when the jury, after being out about 20 Minutes, gave their Verdict in favour of the Defendants."
This notice is erroneous so far as it implies that the particular case then tried had been in court for twenty years, but is true in view of the claims made under color of law, as shown by the Vestry minutes of 1738, and of the trespasses of 1746, already referred to.
The record of this trial, if still in existence, has eluded careful search, and the grounds of the decision cannot now be presented. It is probable that the long-continued and undisturbed possession of the farm by the Church was considered a conclusive answer to the plain- tiffs' pretensions. The grant by the "heirs" to Governor Lovelace in 1670 does not seem to have entered into the case. It had either been forgotten by them or was intentionally concealed. The officers of the Trinity Corporation never learned of this grant till 1785, when a Mr. De Hart (said to have been employed in the office of Alexander Ham- ilton) found the deed in the course of some antiquarian researches. It was at once communicated to representatives of the Bogardus claim by the following letter :
" NEW YORK, 2d December, 1785.
" GENTLEMEN - We take the earliest opportunity of communi- cating to you the enclosed copy of the record of a transfer to governor
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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 unin- terrupted 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 honor, made it known."
It will be noticed that in this letter the farm is erroneously called Dominie's Hook, as it is in the publications already referred to of the proceedings of the Bogardus heirs before the State Legislature in 1784. The discovery of this deed would appear to have convinced the " heirs " that their case was hopeless, for no suit in their behalf appears to have been commenced after the trial of 1760 until more than forty years later, when one Malcolm brought an action which was tried in 1807 and resulted in a verdict for the Church.
Without enumerating various actions which were subsequently com- menced, and either not prosecuted, or dismissed on indecisive grounds, it seems proper to explain the general position of the Church at that period. It relied, of course, upon its grant from Queen Anne, and in reply to the claim that the Anneke Jans title antedated that of Queen Anne, it was open to the Church to answer, either (1), assuming that to be so, you, the plaintiff, do not show that you have any title under An- neke Jans, or (2), but all the heirs of Anneke Jans had lost their rights, if they ever had any, for the lands were, at the time of the grant from Queen Anne, the property of the Crown, and under the grant from the Crown the Church acquired a good title which has been confirmed by continuous and undisturbed possession.
The first answer would have put the plaintiff or plaintiffs in any one suit to genealogical proof, and their failure to establish their pedi- gree would not have included any other of the so-called heirs. The second defence, therefore-the title under Queen Anne with long pos- session -- was the one adopted by the Church, and so the descent of the claimants was either not involved, or was shown in a loose and general way. The Browers, who were prominent in the controversies of 1740- 84, could never have made a case which would have put the Church on its defence if the deed to Lovelace had been known, for the Browers were descended from William Bogardus, who joined in the deed to Lovelace ; and besides, the Brower claim was by descent from a daugh- ter of William Bogardus, who under the law of descent prevailing in
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the Colony at the time of his death could not have inherited as against his oldest son.1
We come now to an action commenced in or about 1830, on behalf of John Bogardus, claiming to be a lineal descendant of Cornelius, the second Bogardus, son of Anneke Jans, as named in her will. It will be seen by inspection of the grant of 1670-71 to Governor Lovelace, that it does not purport to be executed by or on behalf of this Cornelius, and, accordingly, the astute counsel who at this period had charge of the claims, took the plausible position that as Cornelius became on his mother's death tenant-in-common with his brothers and sisters of the farm, owning an undivided eighth, and had not joined in the deed, Trinity Church held the shares acquired from his brothers and sisters as tenant-in-common with him, and that, therefore, the long-continued possession of Trinity Church was not adverse to him or his descendants, or, in other words, that the statutes of limitation did not bar the claim of those descendants. The action sought an account of the rents and profits of the share so claimed.
The plea on the part of the Church was to the effect that it never took its title under the grant to Lovelace, but under the patent of Queen Anne thirty-five years later, which purported to grant the entire estate and not any undivided shares in it, and so that the possession of the Church had always been adverse, and not that of a tenant-in- common.
The pedigree of the plaintiff in this case is traced, with some un- important inaccuracies, from Cornelius, the son of Anneke Jans Bo- gardus, to a Cornelius of the fourth generation who is stated in the plaintiff's Bill of Complaint to have been born in 1726 and to have died intestate in 1794, sixty-eight years old. On this statement, he lived forty-seven years after attaining his majority, so that the statute of lim- itations was available to the Church on the plaintiff's own showing. In 1794 the law of primogeniture had been abolished and estates. descended to children in equal shares. Accordingly, the plaintiff in that action, John Bogardus, alleged that there were four other children of his father besides himself, and so he claimed one-fifth of the share of his ancestor.
This suit of John Bogardus was thoroughly tried and his claims presented and urged by counsel of great ability. It was the only case ever brought into court in which the claimant could show a plausible pedigree by direct descent from one of the male heirs of Anneke Jans.
1 Jan. 8, 1682, Jacobus Brower married Annetje Bogardus, daughter of William Bogardus (N. Y. Gen. and Biog. Soc. Coll., vol. i., p. 50). VOL. 11 .- 20
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The sufficiency of the plea by the Church of long possession under the grant from Queen Anne was first objected to by the complainants, but the plea was held good, if true in fact, by a decision of Chancellor Walworth in favor of the Church in 1833.' An appeal was taken, but before it was argued John Bogardus died and his children revived the suit. The appeal from the Chancellor's decision was to the Court for the Correction of Errors. In that Court the decision of the Chan- cellor was affirmed in 1835.2
The decision as to the sufficiency of the plea permitted the com- plainants to reply to it. This reply gave both parties the right to give evidence as well to support as to refute the facts alleged in the plea. Testimony on both sides was thereupon taken at great length, and the action came finally to a hearing before Vice-Chancellor Sandford in New York, in 1845. The argument occupied five days. The decision was rendered in June, 1847. The report of the case occupies 129 pages of the official volume.3 The opinion of the Court contains a thorough ex- amination of every point upon which the plaintiffs relied, as well as a painstaking study of the evidence, and concludes as follows :
" And now that I have been enabled to examine it carefully, and with due reflection, I feel bound to say, that a plainer case has never been presented to me as a judge. Were it not for the uncommon mag- nitude of the claim, the apparent sincerity and zeal of the counsel who supported it, and the fact (of which I have been oftentimes admon- ished, by personal applications on their behalf) that the descendants of Anneke Jans, at this day, are hundreds, if not thousands, in number ; I should not have deemed it necessary to deliver a written judgment on deciding the cause. But the law on these claims is well settled ; and it must be sustained in favor of religious corporations as well as private individuals. Indeed, it would be monstrous, if, after a possession such as has been proved in this case, for a period of nearly a century and a half, open, notorious, and within sight of the temple of justice ; the successive claimants, save one, being men of full age, and the courts open to them all the time, (except for seven years of war and revolution ;) the title to lands were to be litigated successfully, upon a claim which has been suspended for five generations. Few titles in this country would be secure under such an administration of the law ; and its adoption would lead to scenes of fraud, corruption, foul injustice and legal rapine, far worse in their consequences upon the peace,
1 4 Paige's Rep., 178. 2 15 Wend. Rep., III.
3 4 Sandf. Ch. Rep., pp. 633-762.
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good order and happiness of society, than external war or domestic insurrection."
No appeal was ever taken from this decision. The case had been in court some seventeen years. None of the heirs could in respect to their pedigree have shown a more direct descent - a descent from the only heir who did not join in the deed to Lovelace. All available evidence was produced, and the judgment of the Court placed the title of the Church upon an impregnable basis. There were some other mutterings after the storm, but the sky was cleared. The later suits will be referred to only to show the surpassing ingenuity of the counsel who had charge of the claims against the Church, in varying the mode of attack.
A few years after the commencement of the Bogardus suit (1834) one Jonas Humbert united with other heirs in bringing an action for " the farm " upon the ingenious theory that though the Church might have title to that portion of the King's Farm so called which did not include the Anneke Jans tract, it had by fraud caused a confusion of boundaries, so that under color of the grant from Queen Anne it had obtained a larger tract of land than this grant, construed with due re- gard to the rights of the heirs, would have given. In order to sustain this view the plaintiffs set out the Dominie Hook patent for 130 acres, and charged that the Church had under its grant from Queen Anne fraudulently taken possession of the land described in this patent, as well as of the farm of sixty-two acres.
The averments of the Bill of Complaint in this case placed the date when the Church first took possession, and since which it had been in continuous occupation as owner, so far back that the suit could properly be met by a demurrer, that is, by the position that conceding all the allegations of the Bill, the long adverse possession by the de- fendant barred the claim.
The case first came on for hearing before Vice-Chancellor McCoun in New York, who held the Bill defective in form and sustained the de- murrer. He appears, however, to have been of the opinion that if the al- leged confusion of boundaries could be shown, the plaintiffs might be entitled to relief notwithstanding the statutes of limitation, and ac- cordingly gave the plaintiffs leave to amend their Bill by stating more definitely what lands claimed by them were in possession of Trinity Church. They did not avail themselves of this permission, but ap- pealed to the Chancellor, who affirmed the decision, and then finally to the Court for the Correction of Errors, where the case was decided in favor of the Church, in December, 1840.1
1 Humbert vs. Trinity Church, 7 Paige, 195 ; 24 Wend., 587.
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In this case the plaintiffs made no reference to the grant from the heirs to Lovelace. In the Bogardus suit that grant was brought for- ward and the omission of Cornelius Bogardus to join in it made the basis of the claim on the part of his descendants. But in the Humbert suit the plaintiffs claimed by descent, some of them from Anna, a daughter of William Bogardus, the others, from Sarah Kiersted, a daugh- ter of Anneke Jans. But William Bogardus, and Sarah Kiersted by her then husband Cornelius Van Borsum, had joined in the deed to Lovelace, and accordingly the claimants did not produce that grant. The position was substantially this : Assuming you have some sort of a title to the 62 acres, you have none to the 130, and under color of the grant of the King's Farm you have confused the boundaries and got possession of the lands covered by both patents.
As already stated, the term Dominie's Hook had in early times frequently been applied to the farm on New York Island. That it was so applied erroneously is now beyond question. Chancellor Walworth, in his opinion in the Bogardus case, spoke of "the error of supposing that Dominie's Hook and the Dominie's Bowerie were but different names for the same premises," but Senator Furman, who was a member of the Court that decided the Humbert case, seems to have been the first to make it clear that the tract of 130 acres called in the patent " Dominie's Hook," was on Long Island, not on Manhattan Island.1 The description in the patent of the land as " lying on the north side of Maspats Kills " settled the question. There was no such stream on Manhattan Island. The property is now a part of Hunter's Point and belongs to Union College. It was conveyed in 1697 to one Pieter Praa, by Johannis Van Brugh and Johannis Kip, acting " for themselves and in behalf of the rest of the children and heirs of Anneke Bogardus, deceased," and has come down from Pieter Praa by a complete chain of title to the present owners. Trinity Church never occupied, never had any interest in, and never made any claim to, this land.
Whether the "heirs" or the managers of their case knew the facts in reference to this grant during the fifty years (1784-1834) in which they were claiming that Trinity Church had possession of Dominie's Hook, it is not safe to aver. There are indications that the Bogardus suit and the Humbert suit were prosecuted by a committee acting in the same interest. Each of them was based on false statements, but made in separate actions, upon the idea that if one failed the other might possibly succeed.
Some notice ought not to be omitted of the curious case of Van 1 24 Wend. Rep., 619, 620.
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Giesen vs. Bridgford, in which one Van Giesen, claiming to be a de- scendant of Anneke Jans, and having in possession some articles of personal property, applied to the Surrogate of Albany in July, 1877, for letters of administration upon her estate upon the allegation that the records did not show that her estate had been administered and settled. The theory of the proceeding seems to have been that as the will of Mrs. Bogardus directed her property to be disposed of, this direction operated as an equitable conversion of it into personal property, and so an administrator could hold all parties who had got possession of it, or its proceeds, to account therefor. The Surrogate denied the application. Van Giesen then appealed to the Supreme Court. That Court in 1879 affirmed the judgment of the Surrogate, and a final appeal being taken to the Court of Appeals, the decisions of the Surrogate and of the Supreme Court were there affirmed, in 1881.'
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