Wood ex dem. Elmendorf v. Livingston

Headnote

in ejectment, claimed title and^B*’ aHo claimed title under a deed from J. s. and trastee® of the settling* the boundary line tea premises, that'jTs h\vas indMduai lapacity, to the to and settled \milfee, and** which be had maintain; and deed of set“SSa claim of a.

THIS was an action of ejectment for land in the town of Neversink, in the county of Sullivan. The cause was tried at Ulster circuit, in November, 1812, before Mr. Justice Van Ness. .

. The plaintiff gave m evidence, 1. A patent dated the 25th of June, 1703, to Henry Bcelcman, Joachim Schoonmalcer, and Moses ®epuy, as trustees for the town of Rochester; 2. A patent to the trustees of Marbletown; 3. The records of the town of RoChester, by which it appeared that Jacob Hornbeclc, Andries Dewitt, and Jacobus Van Wagenen, were trustees of Rochester, and AZffls and Ephraim Depuy, freeholders, elected for one year, from the first Tuesday of June, IT67; and a conveyance to them from the trustees of the former year, of all lands within t*ie patent not sold; 4. A conveyance from the said Hornbeclc, Dewilt, and Van Wasrenen, as trustees of Rochester, with the advice and consent of Elias and Ephraim Depuy, to Joachim Schoonmalcer, jun. dated 19th of December, 1768; 5. A deed from Joachim Schoonmalcer, jun. the said grantee, to Lucas EL mendorf, the lessor of the plaintiff, for the same premises and other tracts, dated the 15th of January, 1805. The plaintiff then produced several witnesses to show the bounds of the lands so conveyed, Sec. but it is thought unnecessary to state their testimony.

The defendant gave in evidence a partition deed of the proprietors of the Hardenbergh patent, dated the 15th of November, 1749, whereby great lot No. 4. in the said patent was released to Robert Livingston and Gulian Verplanclc; and also a release of the said lot No. 4. to the said Livingston, dated the 12th of December, 1749. He also proved that he was the heir at law of the said Robert Livingston. He further gave in evi*

deuce á deed from Jacob Ilornbeck, Andries Dewitt, and Joar chim Schoonmaker, jun. styling themselves trustees of the lands, Sec. of the town of Rochester, and Benjamin Ilornbeck, Hendrick Hornbeck, and Johannes Ousterhoudt, jun. dated the 13th of February, 1778, reciting that doubts had arisen between the trustees of the town of Rochester and the proprietors of the Hardenbergh patent, relative to the true bounds of the town of Rochester, and in order to remove those doubts, &c. the parties of the first part released to the parties of the second part all the lands southwest and northwest of an agreed line then fixed, mutually concluded on, and run, &c. which line, it was admitted, was several miles to the southeast of the premises in question. The defendant also gave in evidence the records of the town of Rochester, by which it appeared that the parties of the first part named in the said deed of settlement, were the trustees and freeholders of the town at the date of the said deed, and that an entry of this settlement was made in the records, and a memorandum that the deed to Joachim Schoonmaker, jun. was void, and that the consideration money had been returned to him.

The judge being of opinion that the deed of settlement of the 13th of February, 1778, was a bar to the plaintiff’s recovery, he consented to a nonsuit, with liberty to move the court to set it aside, and for a new trial.