Bi-centennial history of Albany. History of the county of Albany, N. Y., from 1609 to 1886. With portraits, biographies and illustrations, Part 68

Author: Howell, George Rogers, 1833-1899; Tenney, Jonathan, 1817-1888
Publication date: 1886
Publisher: New York, W. W. Munsell & Co.
Number of Pages: 1452

USA > New York > Albany County > Albany > Bi-centennial history of Albany. History of the county of Albany, N. Y., from 1609 to 1886. With portraits, biographies and illustrations > Part 68

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Judge Selden, after relying on the statute of 1846, as Judge Denio had done on the statute of 1805, to sustain the actions, undertakes to uphold them on the strength of an opinion expressed by Sugden in his work on "Vendors and Purchasers," and on two or three controverted English cases. But neither Sugden nor the disputed cases ad- vance the idea, or even hint at it, that there can be any forfeiture of land for non-payment of rent, out- side the relation of landlord and tenant; and it may be asserted, without fear of contradiction, that no case can be found, English or American, where re-entry, or ejectment for default in the payment of rent, has been had or allowed, except where the relation of landlord and tenant existed, or was supposed to exist.

It has been shown that the decision in the case of Ball, in 1859, in which Judge Denio wrote the opinion-is no exception to this rule- for the judgment in that case was ex- pressly affirmed, by help of the statute of 1805, upon the statutes of landlord and tenant. And Judge Selden, in his opinion in the Reid case, written in 1863, is forced finally to admit and de- clare that the actions are not maintainable, except the relation of landlord and tenant exists between the parties. His very language is here copied, and is as follows : " In many cases in our courts, between parties similarly situated, they have been spoken of and treated as landlords and tenants, and the decisions in the cases of Van Rensselaer v. Snyder (13 N. Y., 299) and Van Rensselaer v. Ball (19 N. Y., 100) can be sustained on no other ground, as they depended entirely upon a statute applicable only to parties hold- ing that relation (2 R. S., p. 505, § 30)."

Of the eight judges who composed the Court of Appeals in 1863, when Judge Selden wrote his opinion, it is notable that two of the most distin- guished Judges of the Court, Wright and Rosekranz, who heard the arguments, refused to take part in the decision. They could not be brought to as- sent to the remarkable doctrines announced by Judge Selden.

283

ANTI-RENTISM.

Upon this indefensible assumption by Judge Selden of the relationship of landlord and tenant between the parties to this controversy (where such relationship does not exists), hangs the enormous exactions thereafter, and even now, bit- terly wrung from the cultivators of lands absolutely owned by themselves.

The workings of the system, thus naugurated by the Court of Appeals, may be illustrated by a few out of many examples :

On the 17th day of February, 1860, one of the coldest days of the winter, the principal adven- turer in the claims, accompanied by the Sheriff and his posse, some fourteen or fifteen in num- ber, armed with pistols and clubs, and handcuffs to bind any that might be found to oppose, made a sudden descent upon the farm and premises of Peter Ball, situated on the Helderbergs, near the village of Berne. The farm had been his and his forefathers for generations, but then and there, in the midst of a furious mountain snow-storm, they cast him, with his family, consisting of his wife, a sick daughter and an aged colored servant, from the dwelling, out upon the public highway.

The value of this farm, within the very limits of the village, with its new, convenient and handsome dwelling-house, and other improve- ments, made by Peter Ball himself, was very con- siderable. It was one of the most desirable and picturesque places on the Helderbergs ; and as the poor old people, the sick daughter and the aged servant were forced to leave, their cries and their tears touched many a tender heart.

It may be truthfully asserted that when the Pa- / troon sold his lands on the Helderbergs, there was not probably an acre that was worth more than twenty-five cents. The value was given afterward by the buildings and other improvements put upon the lands by the purchasers.

It was necessary, it was said, to make an exam- ple of Peter Ball, because he had been a leading and persistent anti-renter, for the influence it might exert at the time upon other anti-renters to come forward and settle exacted claims.

Martinus Lansing, whose extensive farm lay on the east or Greenbush side of the river, in view, prob- ably, from the pinnacles ofthe Capitol, beneath which, in august dignity, now sits the Court of Appeals, is a more recent and flagrant case of dispossession. On this farm, worth not less than twenty-five thou- sand dollars, it has been estimated there was an un- paid rent claim of about eight hundred dollars. Mr. Lansing was required to pay six thousand dol- lars to be reinstated. He paid four thousand dol-

lars, and because he did not promptly pay the other two thousand, although he subsequently offered to pay it, and the payment was refused, he and his family were removed from their dwelling-house by an armed body of officers and men. The great farm, with all its buildings and other improve- ments, put on it by Mr. Lansing's forefathers, with extensive additions and betterments by Mr. Lan- sing himself, was immediately taken possession of by the chief speculator ; and he is to-day occupying the fine dwellings and large barns, and planting and reaping the broad acres, and pocketing the fruits, rejoicing in the great acquisition, and mak- ing exhibitions of it to admiring friends.

The reader will not be surprised to learn that Mr. Lansing died of a broken heart, poor and pen- niless, and that his unmarried daughters, forced to support themselves as best they may, or dependent upon the liberality of relatives, have suffered a desolation, distress and mortification over which sympathetic neighbors and friends have dropped many a tear of charity.

Another case of dispossession was that of Will- iam Witbeck, of Greenbush, whose farm lay west of Mr. Lansing's, and nearer the river. The Olcott place, which occupies a site commanding a view of all Albany, forms in part its western boundary.

As a grass and stock farm, with its buildings and other improvements put on by the Witbeck family, it was very valuable-worth not less, probably, than fifteen thousand dollars.

Witbeck had paid all assumed rent claims against this farm, but there was yet unpaid, it seemed, the costs of the ejectment suit, amounting perhaps to one hundred and fifty dollars. These, by some over- sight, had not been paid. They might have been col- lected at any moment upon execution, if Witbeck had refused to pay, as he had much cattle and other property on this and other farms in the same neigh- borhood. But this was not what the principal specu- lator in fee-farm rents was seeking. Witbeck, he in- sisted had been contumacious, and had forfeited his right to retain the farm, and he declared his inten- tion, therefore, to take possession. For this purpose Hiram Griggs, a deputy of the Sheriff of Rensselaer County, with an armed posse, was dispatched to take possession. Witbeck, as he had given out he would do, resisted, and in the encounter which followed Griggs was shot, and subsequently died. Witbeck and his two sons were arrested and in- dicted for Griggs' murder. They were tried in Saratoga County, and were acquitted. In the meantime, secured against further resistance, the speculator obtained peaceable possession of the

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HISTORY OF THE COUNTY OF ALBANY.

farm, and he retains it to this day, with its bounti- ful ingathering of harvests and fruits.

Such are some of the results of landlord and tenant statutes, where such statutes do not apply. It is the merciless taking and appropriation of land (by judicial accomplishment), with all the buildings and other improvements, put on it by the owners themselves, which never belonged to the manor or proprietors nor to the purchasing speculators ; here in the State of New York, near the close of the nineteenth century, in a manner equal to anything in atrocity that could have occurred in the bar- barous ages of the ninth century, when feudalism was first forced on allodial soil and on free men.

The system of swooping in farms, with the buildings and other improvements, now practiced, under the same incongruous statutes, (made pos- sible by the like judicial action) may be illustrated by the method in which it is done:

Ejectment suits are brought to recover one year's rent claimed to be due-generally the last year- and recovery of possession of the farm for non-pay- ment. The landholder, on prosecution, goes to the office in Albany to pay the year's rent sued for, and the costs of the action. Payment will not be ac- cepted unless he will also pay all rents claimed to be in arrear ; it may be for fifteen or twenty, perhaps thirty years. The landholder remonstrates, on the ground, as often happens, that he has only owned the farm a few years, and should not be asked to pay longer than he has owned. He is told that that makes no difference ; the farm is liable, who- ever may have been the owner, and he must pay all rents claimed or lose the farm. On inquiry as to the amount claimed, he is startled to learn that it exceeds the value of the farm, perhaps, with all the buildings and other improvements. That result is brought about by charging the fullest prices for the wheat, the fat fowls and the days' service with carriage and horses, with annual accumulations of interest on each. It is the old story ; the succes- sors of the old Patroon chastised the landholders with whips ; the adventurers chastise them with scorpions.

The distressed farmer, sued for one year's rent, goes home and communicates to his astonished family the ruin that impends over their peaceful habitation ; and ruin promptly comes in the person of the speculator, with the sheriff and posse at his back, who speedily close the scene upon the wretched family by pitiless dispossession unless every claim be paid.

The prices of rents claimed have been greatly in- creased by the speculators since the days of the

Patroons ; then the fat fowls and the days' service with carriage and horses, etc., were put at uniform rates of moderate character ; now they are ad- vanced to the extremest tension. It is this feature of the fee-farm rent system, among others, which makes it so bitter, harsh and unendurable. In cases between landlord and tenant, where that re- lationship actually exists, the landlord must specify in his petition or complaint the exact amount of rent claimed to be due, so that the tenant may know what he has to pay, and he pays it, or leaves the premises at his option, to which premises the tenant makes no claim, for he never owned them. He has added nothing to their value by buildings or other improvements, and he leaves them with- out loss or distress.

Very different from this is it with the fee-farm rent system. Here the courts do not require the specu- lators, on prosecution, to fix the amount of rent claimed to be due. That is left to their tender mercy after they have got their ejectment judg- ment ; and if the landholder don't then pay as required, he loses his farm, with all the build- ings and other improvements put upon it by himself. These buildings and other improve- ments, even more valuable, perhaps, than the land itself, the Court of Appeals declared in 1852, in the opinion delivered by Judge Ruggles in the quarter-sale suit, never belonged to the manor proprietors, and certainly, therefore, never belonged to the speculators in the manor claims. Yet these speculators are now allowed, under the statutes of landlord and tenant (with assistance of the courts), to take the buildings and other improvements as well as the land itself, which the Court of Appeals, in 1852, as above declared never belonged to the manor proprietors.

This category of the fee-farm rent system places it in a light of terrific injustice.

It may be asserted, boldly and unflinchingly, that the declaration of the Court of Appeals, before mentioned and transcribed, that because, in many cases, the parties to this controversy have been spoken of and treated as landlords and tenants, therefore, their status as such is forever fixed and cannot be changed, where that relationship does not exist, is ju- dicial legislation and tyranny .*

* This language is used advisedly. Writers on social science con- cede that the courts in this country have assumed legislative power. Lester F. Ward, A.M., of the Smithsonian Institution, in a recent work on "Dynamic Sociology," says : "There are two classes of law- making bodies-courts and legislatures. The growth of law through the courts is almost unrecognized by the people at large : yet its de- velopment by this agency is, perhaps, more rapid than by legislation." The author is inclined to approve this usurpation, unmindful that judi- cial legislation is insidious despotism, paving the way for imperialism ; destructive assuredly of our system of government described by Pres- ident Lincoln as the "government of the people, by the people, for the people,"

285

ANTI-RENTISM.

This judicial legislation on this rent question makes him who does not own the land, landlord, and him who does own it, tenant, and gives the former the latter's land, with all the buildings and other improvements, without compensation.

The question admits of no dispute, and is of ready solution : it is determined by inalienable law, and all the courts in the civilized world can- not controvert or change it.

Suppose a man, owning one of these manor farms, dies without will, and without heirs, lineal or col- lateral, to inherit, to whom does the farm escheat or revert, to the manor lord, or in this case to the speculator who has purchased his interest, or to the people of the State in their sovereign capacity ? Every tyro in the law knows that it goes to the peo- ple. Why? Because the reversion or escheat of all lands held in fee is in the State.

This point may be further illustrated by the man- ner in which the taxes upon these "anti-rent" lands are assessed and paid; which is matter of interest to distressed taxpayers generally, and to opponents of non-taxable Government bonds. The speculators have never been assessed for or paid any taxes on these lands which they claim to own as landlords over a peasant tenantry. If it be said that the manor proprietors, or the speculators who have purchased from them, are not bound to pay the taxes because of the original indentures by which the farms were acquired, that does not obviate the difficulty of the assessment of the taxes. If the speculators were the owners of the lands, the assessment would be levied against them as the owners ; whereas, it is a well-known fact that such taxes have always been assessed to and paid by the farmers, as the owners in fee of the lands, and not as tenants either of the manor proprietors or of the speculators. The speculators have not only paid no tax or assessment of any kind on these "anti-rent " farms, but they have successfully resisted the payment of any tax on the vast amounts of rents which they have collected from the owners of these lands, as the tax receivers in the towns will testify. Hence it has now come to be understood that the specu- lators have here, under the ægis of the courts, a bonanza; a property superior to any other in the country ; far better than non-taxable United States bonds, for they have a limit of existence, while this rent exaction is claimed to be indestructible ; assuming always that the de-

cisions of the courts are never to be reversed on this question.

The people of the State, therefore, are land- lords of all these manor lands, as well as of all other lands held in fee, and no individual grantor, be he whom he may, has the slightest interest or possibility of interest in any land after he has made a deed of conveyance thereof.

Servitude to the soil in perpetuity, or involun- tary servitude (better known to early ages as feudal servitude, the lords in which were known as lords superior, and the cultivators of the land as vassals, feuds or bondsmen), was imposed upon France by despotic rulers in the ninth century. It was brought from Normandy and planted on the allodial soil of England in the eleventh century by William the Conqueror. It was extirpated thence, in 1290, by the statute of quia emplores.

That statute was the law of the colony of New York, and it and tantamount statutes have always been the law of the State. Yet the degrading sys- tem, attempted to be fastened upon the eastern counties of New York by pseudo-Patroons and manor lords, has been actually fastened upon them by judicial legislation, under anomolous statutes of landlord and tenant, where such statutes do not and cannot be made to apply, even by legislative enactment; for our Legislature is not omnipotent, like the British Parliament, but is controlled in its action by both national and State constitutions.

Whether the system is to be perpetuated for the benefit of the speculators and their assigns, or their posterity, by judicial fiat, remains to be seen.

However that may be, candid and generous men will acknowledge that to the derided " anti-renters " must be accorded the honor of arresting the progress over the continent of this revival of me- diæval despotism ; for there is no telling to what length it might have extended over land in vast tracts, comprising millions of acres, held by cor- porations and wealthy capitalists, had it not been for the determined and world-wide known resolute resistance to the enslaving system by anti-renters of the State of New York.

Through their sturdy resistance, the constitutional convention of 1846 put the system under ban for all future time throughout this commonwealth, whence it is not likely ever to have further resurrec- tion.

286

HISTORY OF THE COUNTY OF ALBANY.

THE MANOR AND THE VAN RENSSELAERS.

By Prof. J. TENNEY.

A HISTORY ought to be fair and unprejudiced; and on a question which has caused so much political and legal strife as was made by the con- test between the opposing claimants upon the ma- norial estates in Albany County, under the Van Rensselaer leases or deeds, both sides should be permitted to make the amplest statements. With this view, I had early and frequent conversations with Mr. A. J. Colvin and Mr. C. M. Jenkins, lawyers upon opposite sides of the controversy when it was in the courts; both eminent for learn- ing and ability; both natives of the county, and now among the few still living, at a venerable age, who knew the whole matter from their personal and local relations to it. I invited both to present, in writing, the historical and legal points in a con- troversy that, in its day, in this locality, was hardly excelled by that of anti-slavery in intensity of in- terest. Mr. Colvin only has responded to my re- quest, giving, from his view-point, the only consec- utive and detailed account of the contest in its historical and legal aspects, and in its progressive steps and present status, that has ever been given. The preceding article commends itself by its clear statements of both sides of the question, by its forcible arguments, and its evident desire to be fair to all parties and true to history.

The student of history will be interested in the facts which we give below, gathered as reminiscen- ces from some of the oldest living lawyers, and from other reliable sources.

Alexander Hamilton, brother-in-law of Gen. Stephen Van Rensselaer, the "old Patroon," is said to have been his early legal counsel after he came in possession of the manor, in 1785. After the death of Hamilton, in 1804, if not before that event, John V. Henry, who died in 1829, and Abraham Van Vechten, who died in 1837, among the most eminent lawyers of their time, were em- ployed as his counsel. It is said he paid them each a salary of $1,000 per annum. The following anecdote has been given: About 1815, Mr. Van Rensselaer notified Mr. Henry that he could no longer pay his salary. "Very well," replied Mr. H., " then I shall be at liberty to accept a retainer

from your tenants, and I will then show you that they are no longer your tenants, but the owners of the lands." The stipend was continued to the close of Mr. Henry's life.

Teunis Van Vechten succeeded Abraham Van Vechten as the Patroon's counsel. Then Teunis Van Vechten formed a copartnership with Daniel Cady, the distinguished lawyer, and they became the counsel of the new manor proprietors on the Albany side of the river, and David Buel, of Troy, on the east side of the river. Jonathan Jen- kins, of Rensselaerville, father of Charles M. Jen- kins, acted as counsel for the "old Patroon," and later for the "young Patroon," in the country, while the Van Vechtens were acting as such in Albany.

After the decision in 1852, in the quarter-sale suit, it was David Buel, of Troy, one of the most able real estate lawyers in the State, who publicly declared that that decision put an end to the rent controversy, and he would never after that defend further any of the manor cases.

The lawyers that argued the quarter-sale case for the so-called tenants, were Henry Hogeboom, of Hudson, and Azor Taber, of Albany, a native of Knox. Josiah Sutherland, of New York, after- ward a Supreme Court Judge, argued the case for the manor proprietors.

After the decision of this case, Andrew J. Colvin, of Albany, and Anson Bingham, of Nassau, Rens- selaer County, were employed in a number of cases arising out of these claims for rents; Mr. Colvin taking the Albany County cases, and Mr. Bingham those of Rensselaer County. They took the posi- tion that, if the quarter sales were invalid, so were the rents in bushels of wheat, fat fowls, days' ser- vice, and such like, on the same grounds, viz. : that the manor proprietors had sold their lands, not leased them. This led to acquaintance be- tween these gentlemen, and finally to a copartner- ship, with office in Albany. The first of their suits which went to the Court of Appeals were the Ball and Hayes cases, decided by that Court in 1859, Judge Denio writing the opinion. Associated as counsel with Colvin and Bingham, and present in

THE MANOR AND THE VAN RENSSELAERS.

287

Court at the argument, were William M. Evarts, of New York, and Nicholas Hill and John H. Rey- nolds, of Albany; Mr. Bingham and Mr. Reynolds making the argument for the farmers, and Mr. Charles M. Jenkins, of Albany, of the firm of Jenkins & Cooper, for the rent claimants.

Some years afterward, Mr. Peter Cagger became the lawyer for the rent claimants; then Samuel Hand, with Mr. Cagger; then Hand & Hale and Schwartz; then Mr. Rufus W. Peckham; then Peckham & Rosendale; and finally Rosendale and Hessberg, who now act as attorneys for Walter S. Church.

THE LEGAL POINTS.

The historical sketch of anti-rentism by Mr. Colvin, and the novel legal questions growing out of it, have induced me, at the suggestion of some legal friends, to look over the briefs or points of the counsel on the argument of the Ball and Hayes cases and the decision of the Court of Appeals in those cases, made in 1859. On examining these points on both sides, I found them elaborated by extensive arguments and citation of authorities. Deprived of the prolixity of legal technicality, the pith of the points appears to be as follows :

Mr. Jenkins, who made the argument for the manor proprietors, or those who purchased their interest, presented, in substance, the following propositions : 1. That, while by the Van Rens- selaer indentures, the grantees or purchasers took an estate in fee or of inheritance in the land con- veyed, yet taken and held under agreement expressed in the conveyances, to yield and pay rent, the fee was conditional and defeasible and not absolute. 2. That reversion, or the relation of landlord and tenant, was not necessary to sustain the actions, be- cause of the contract by which the grantees or pur- chasers agreed, for themselves and their assigns, to pay the rents, whereby such rents became annexed to the land and passed with it as part of the tenure by which it was held. 3. But if these positions were untenable, then Mr. Jenkins submitted that the relation of landlord and tenant existed between the manor proprietors and their grantees, and between the assigns of each, because the King, as lord par- amount, had here erected and granted to the orig- inal proprietor or patentee under the British Crown, a lordship and manor to all intents and purposes; and thereby licensed the Patroon to be chief lord of the fee or manor, with power to make tenants in fee or perpetuity, holding of him; and, therefore, 1.the statute of quia emptores never applied to this, the manor of Rensselaerwyck. .

The answer of the opposing counsel in sub- stance was, that the manor of Rensselaerwyck was not and never had been a lordship in fee, and was not excepted from the operation of the statute of quia emptores ; that Mr. Van Rensselaer was simply an individual and not a chief lord, and was, there- fore, like other individuals, subject to the opera- tions of the statute. That statute made it impos- sible for him on the sale of his lands, to make, or attach to tlie conveyances by agreement, condi- tions for the payment of rents of any description, .

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Bi-centennial history of Albany. History of the county of Albany, N. Y., from 1609 to 1886. With portraits, biographies and illustrations, Part 68

Author: Howell, George Rogers, 1833-1899; Tenney, Jonathan, 1817-1888 Publication date: 1886 Publisher: New York, W. W. Munsell & Co. Number of Pages: 1452

Author: Howell, George Rogers, 1833-1899; Tenney, Jonathan, 1817-1888
Publication date: 1886
Publisher: New York, W. W. Munsell & Co.
Number of Pages: 1452