Duncan research files of
1790 Montgomery Co. NY Census Palatine Town Pg.114 John Duncan Junr 112x? 1800 Montgomery Co. NY Census (stamped page #) Canajoharie Pg. 51 Nicholas Duncan 00001 - 10000 Johnstown Pg. 76 McVain Duncan 00100 - 20110 1810 Montgomery Co. NY Census Salsbury Pg.108 David Duncan 30110 - 12010 109 William Duncan 20010 - 10110 1820 Montgomery Co. NY Census Mayfield Pg.393 Samuel Duncan 000010 - 01000 (MAD: very faint & hard to identify name; this is first household on page; am not positive it is "Duncan") 1830 Montgomery Co. NY Census Amsterdam Pg.120 John H. Duncan 0002,2 - 0001,2 Northampton Pg.267 Samuel Duncan 1010,001 - 1220,001 (MAD: 1850 Fulton Co. NY census) 1840 Montgomery Co. NY Census Florida Pg.254 Charles Duncan 0100,001 - 0100,01 275 Michael Duncan 1000,11 - 1000,11 Amsterdam Pg.277 Patrick Duncan 0100,201 - 0001,01 299 James Duncin 0100,4101 - 0011,1001 Mohawk Pg.313 John Duncan 1000,01 - 1000,01 1850 Montgomery Co. NY Census No Duncan indexed
1860 Montgomery Co. NY Census
Town of Minden
Pg.282, #522-537, William BOWER 26 NY sheriff
& family & many men, including
John DUNCEAN 35 NY tanner
1870 Montgomery Co. NY Census
3rd E.D. in Town of Minden
Pg.288, #263-302, DUNCAN, John 48 SCT tanner & currier $19,000-$10,000, parents of foreign birth
Jane 43 SCT keeping house, parents of foreign birth
Joseph 23 SCT tanner & currier $0-$5,000, parents of foreign birth
Arthur (m) 16 NY, attends school, parents of foreign birth
James 12 NY, attends school, parents of foreign birth
Jennie 10 NY, attends school, parents of foreign birth
John 8 NY, attends school, parents of foreign birth
Lillie 3 NY at home, parents of foreign birth
LILLIE, Caty 23 SCT assists in domestic service, parents of foreign birth
"Reports of cases argued and determined in the supreme court of judicature : and in the Court for the Trial of Impeachments and the Corrections of Errors in the State of New York" by William Johnson; ("Johnson's Reports") Vol.3, pgs.375 to 388 (California State Law Library, Sacramento, 1/2004) (MAD: case citations omitted here)
JACKSON, ex dem. J. G. KLOCK and G. G. KLOCK et. al., v. HUDSON; Supreme Court of Judicature of New York; 3 Johns. 375; August, 1808, Decided.
This was an action of ejectment, for lands in Montgomery County. The cause was tried at the Montgomery Circuit, before Mr. Justice Van Ness, in October, 1807.
The plaintiff gave in evidence a lease from George Klock, the father of the lessors of the plaintiff, to Jacob Forbush and Bartholomew Forbush, dated the 6th of September, 1783, for a farm, known by lots No. 7 and 8, on the Mohawk River, at Canajoharie, "containing 600 acres of low and cribble bush lands," for the term of three years, at a yearly rent of 30 skipples of wheat, with clause of re-entry for the nonpayment of the rent, &c.
The plaintiff then proved by Peter P. Schuyler, aged 60 years, that the lessees were in possession of the premises in question under that lease, and lived there about eight years after, and that they lived on the land a year or two previous to the lease, before which they said that the land belonged to the Indians, and was called Indian land; that they recognized no particular title when they entered, and that they considered the land as vacant; that the Klocks claimed the land, and threatened to turn them out; that the Indians had been in the exclusive possession of the Canajoharie Castle tract (of which the premises in question are parcel) as long as the witness could remember, and so continued until they went to Canada, in the Revolutionary war; that after the Indians had so departed, John Peter Rovershang, who was married to an Indian squaw, claimed the whole tract, in right of his wife; that Jacob Forbush, one of the lessors of the plaintiff, first took possession of another piece of land in the Canajoharie Castle tract, and improved it for some time, when the Indians ousted him, and told him to go and take other lands; that Forbush then entered on part of the premises, and soon after took the lease above mentioned; that no person claimed any adverse interest in the Canajoharie Castle tract, during the possession thereof by the Indians; that George Klock lived about four miles from the said tract; that the Canajoharie Castle tract was very valuable, and contained a great portion of low land; that the Forbushes admitted that they paid rent to Klock under the lease; that Klock claimed the whole Canajoharie Castle tract, at the time of giving the lease, and died in 1789 or 1790; that the two lessors of the plaintiff named pretended to claim the whole tract after Klock's death, and that the lessors of the plaintiff are his heirs-at-law.
The plaintiff having here rested his cause, the defendant gave in evidence:
1. The letters patent, dated the 13th November, 1731, to A. Van Horne, W. Provost and C. Livingston (three of the colony council), and Mary Burnet, daughter of Governor Burnet, for 8,000 acres of land, including the Canajoharie Castle tract.
2. A release and quitclaim, dated 22d November, 1763, from P. Livingston, W. Livingston, G. Klock, and three others, styling themselves part owners of the tract mentioned in the said letters patent, in consideration of five shillings, to three Indians, by name, in fee, of a tract of land described by metes and bounds, in trust for them, and all the rest of the native Indians, belonging to the Canajoharie Castle, and their heirs.
3. Authentic copies of the map and field book of the partition of the patent, made the 9th October, 1764, by which the Canajoharie Castle tract was set off into an allotment by itself, and the rest of the patent laid out into five allotments. The 1st, 2d, 3d and 4th allotments contained each about 800 acres, and were divided into eight lots each, and the 5th allotment divided into four lots of 200 acres each. The Canajoharie Castle tract formed the 6th allotment, and was laid out into four lots of 850 acres each, and is described in the field book as in the possession of the Mohawk Indians of the Canajoharie Castle, by virtue of of a deed to them in fee, executed by Philip Livingston, William Livingston, Walter Rutherford and John Duncan, being four of the six persons who executed the release of 1773. The field book refers generally to the deed. No other proceedings relative to the partition were produced.
4. A release from George Klock to Jellis Fonda, dated the 27th January, 1767, for several parcels of land in the first five allotments, and a specific fourth part of lot No. 1, in the 6th allotment. This release refers to the partition, and the map and field book thereof.
5. A release from George Klock to Johannes Luke, in 1784, for the residue of lot No. 1, in the first allotment.
The defendant further proved, by P. P. Schuyler, that in 1790 or 1791, the two lessors of the plaintiff named gave him and the Forbushes separate agreements, in writing, whereby they stipulated to give separate leases for 21 years, of their lands within the Canajoharie Castle tract, whenever they, the said lessors of the plaintiff, should obtain a grant or confirmation for the same from the State. These agreements were afterwards given up.
It was next proved by Christian Nellis, that shortly after the death of George Klock, the two lessors of the plaintiff named attempted to purchase of certain Indians the lands within the Canajoharie Castle tract, though informed that the Indians, with whom they were contracting, did not belong to the Canajoharie Castle.
The defendant then read a paper writing, signed and sealed by the two lessors named, and Michael Kirn, relative to a part of the Canajoharie Castle tract. It was dated the 28th September, 1790, and was a covenant with Kirn; that as soon as they, the Klocks, should obtain a patent or confirmation for the lands leased by them of the Indians in the Canajoharie Castle, they would execute a lease of the same to Kirn, for 21 years, at a rent of £5 a year.
Two other papers were read relative to other parts of the said tract, of a similar import, which were signed by the two lessors of the plaintiff named, the one dated the 29th September, 1790, and the other, the 10th January, 1791.
It was next proved by Christian Donstader, who was 90 years of age, that he had known the Canajoharie Castle from his youth; that the Indians always had the exclusive possession of the Canajoharie Castle tract, until they went away in the Revolutionary war; that several white persons, at different times, improved part of the tract under the Indians; that shortly after the French war, George Klock made a purchase of some squaws and Indian children of a part of the Canajoharie Castle tract, situated below the premises.
The defendant then gave in evidence a deed in fee, from the executors of Jellis Fonda to him, for a part of the premises, dated the 9th May, 1792, and a deed from C. P. Yates to him in fee, dated 2d January, 1792, for the residue of the premises, containing in the whole 102 acres.
Hendrick Frey testified that the lands in the first five allotments were held according to the partition of 1764, and that he, in 1762 or 1763, by agreement between the Canajoharie Indians and the proprietors under the said patent, ran a division between the Canajoharie Castle tract and the residue of the patent, corresponding with that adopted in the partition of 1764, which was uniformly adhered to by all parties, until the Indians went away; that when the commissioners commenced the survey of the Canajoharie Castle tract, they were opposed by the Indians.
The plaintiff then gave in evidence:
1. A release from Provost to P. Livingston, dated the 7th November, 1734, for one quarter of the patent, for the consideration of £100.
2. The will of P. Livingston, dated the 15th July, 1748, by which he devised the estate in this patent to his eight children, in fee.
3. A deed from the devisees to Jellis Fonda and George Klock, dated 3d February, 1761, for the consideration of £2,400, for one half of the said patent, excepting 1,000 acres before conveyed to David Schuyler.
4. A deed in fee, from D. Van Horne and S. Van Horne, the heirs of A. Van Horne, one of the patentees, to Jellis Fonda and George Klock, dated 3d February, 1761, for the consideration of £1,200, for one fourth of the patent, excepting 500 acres before conveyed to David Schuyler.
It was admitted that the premises were in lot No. 2, of the 6th allotment, as laid down in the map and field book above mentioned.
Wilhelmus Dillenback, aged 90 years, who was called on the part of the plaintiff, proved that soon after the French war he witnessed a deed executed by several Indians to Jellis Fonda and George Klock. The plaintiff's counsel refused to produce this deed, though it was called for, in pursuance of a notice to that purpose.
The jury, agreeably to the charge of the judge, gave a verdict for the plaintiff, for three eighths of the premises.
A motion was made, at the last February Term, to set aside the verdict, as against law and evidence.
(Counsel) Messrs. Cady and Van Vechten, for the defendant. The verdict in this case is for the undivided three eighth parts of the tract. If it can be shown that the plaintiff's right, if any, was divided, or that if he once had a title, he has parted with it, the verdict must be set aside. George Klock was not one of the original patentees in 1731. If he had any title, it must have been under the conveyance in 1761. But, at that time, the Indians were in the actual and exclusive possession of the tract. The testimony of Schuyler fully proves that they had the adverse and exclusive possession of the land. It was not a temporary possession, for the sake of hunting or the chase, but a permanent possession for the purpose of agriculture; they made leases and received rent. The deed, therefore, of 1761, was void, for a person out of possession cannot convey a valid title. The release in 1763, from Livingston, George Klock, and others, to three Indians only, could not give a title; and if it did, then Klock had parted with the title he held.
The conduct of the lessors of the plaintiff, from 1761 to the commencement of the present action, has been in direct hostility to the title now set up. For though Klock pretended to hold the whole tract under the deed, yet, after the French war, he purchased of some of the Indians.
In 1790, or 1791, two of the lessors of the plaintiff, sons of George Klock, agreed with M. Kirn, to give him a lease as soon as they obtained a grant or confirmation of their title from the State. If they had a title, by descent or purchase, why should they desire a grant from the State? So impressed were they with the defect of their title, that they endeavored to obtain deeds from any of the Indians who could be induced to execute a conveyance.
J. and B. Forbush never took possession under the title of 1761. They first entered into possession under the Indians; and, by their direction, left their first possession, and went to another part of the tract, thereby recognizing the Indian title. They afterwards took a lease from Klock; but it is evident that this was done merely to protect themselves from being again dispossessed by the Indians, and was, in fact, collusive. All the acts of Fonda and Klock are not only in disaffirmance of the title under which the plaintiff claims, but show that they uniformly claimed to hold under the Indians. They not only recognized the Indian title, but the Indians themselves asserted their right, by resisting the surveyors who attempted to run the lines of the tract.
The deed of partition in 1764 states that the Indians were in possession of the Castle tract, by virtue of a release from Livingston and three others. Though Klock is not there named, it must be presumed that he had released to Livingston, and it is admitted that a release from Fonda was to be presumed. This presumption is confirmed by the concurrent acts of Klock himself, and is strongly fortified by his long silence and acquiescence; for, living within three or four miles of the premises, he quietly permitted strangers to retain possession. He exercised no act of ownership until 1783, when he merely gave a lease for three years, and with covenants for quiet enjoyment, which lease was manifestly collusive and fraudulent.
This possession has been uninterrupted and undisturbed from 1763 to the present time. Courts, in many cases, have gone far in supporting the presumption arising from a long and undisturbed possession, or long recognition of right under a deed. It is true that the doctrine of presumption admits that it may be rebutted by evidence to the contrary. But here no such evidence appears.
Again, it appears that the representatives of P. Livingston conveyed one half of the tract, except 1,000 acres before conveyed to David Schuyler. And then, the heirs of Van Horne conveyed a fourth part, except 500 acres conveyed to Schuyler.
Now, how does it appear that the deed under which the plaintiff covers the residue, after deducting the two parcels belonging to Schuyler? Until these excepted parcels are first located, the deed cannot operate, or the land intended to be conveyed by it be located. The plaintiff claiming under the indenture ought to have produced the map to which it refers.
That there was a partition in 1764 is manifest from the evidence, and the deed from Klock to Fonda, in 1767, refers to and recognizes the partition. If Klock, then, had any title, it was in severalty, and ought to have been deduced under the deed of partition. An undivided three eighths could not be recovered.
(counsel) Mr. Hildreth, contra. Klock was in full possession from 1783 to 1789, when he died; any right of entry, which the defendant had, was, therefore, tolled, supposing Klock to be a mere disseisor. It is said that the deed of 1761 to Klock and Fonda was void, on account of the adverse possession of the Indians. But they were also in possession in 1731, when the letters patent were issued, and can it be admitted that such a possession, by the native Indians, is to defeat a patent issued by the government?
The wandering and unsettled life of the Indians is wholly inconsistent with the idea of a permanent and adverse possession. The manner in which they occupied the land cannot produce that kind of adverse possession which is intended by the common law, and which the statute relative to maintenance had in view. The plaintiffs have produced sufficient evidence of a possessory title to maintain the action. It is true, that if the defendant can show a subsisting title out of the lessors of the plaintiff, they cannot recover; but this must be an actual subsisting tittle, connected with a possession within 20 years. Merely to show that there has been a title once existing in some other person, is not sufficient. But the lessors of the plaintiff have produced a regular paper title sufficient to enable them to recover. If Fonda and Klock were tenants in common, the entry of one is the entry of both, and such entry will be according to the title. Klock had a right to locate the parcels conveyed to D. Schuyler as he pleased, since there was no specific location mentioned in the exception of them in the deeds. It is objected that there was no act of ownership from 1763 to 1783; but it is well known that the Indians were powerful, and it would have been the greatest rashness and folly for Klock to attempt to assert his rights against them. After the Indians had gone, and peace was restored, he entered and took possession, and remained in possession until his death.
(opinion) KENT, Ch. J. delivered the opinion of the court: The lessors of the plaintiff have made out the following paper title to the premises:
1. A patent from government, in the year 1731, for 8,000 acres of land, and which included the Canajoharie Castle tract, of which the premises in question are a part.
2. A release from one of the four patentees, in the year 1734, to Philip Livingston, another of the patentees, for his one fourth part of the tract. This release invested Livingston with a moiety of the lands.
3. The will of Livingston, in the year 1748, by which he devised his estate in the patent to his eight children, in fee.
4. A deed from the devisees, in the year 1761, to Jellis Fonda and George Klock, for a moiety of the same patent, excepting 1,000 acres before conveyed to David Schuyler.
5. A deed from the heirs of Van Horne, another of the patentees, in the same year (1761), to Fonda and Klock, for a fourth part of the patent, excepting 500 acres before conveyed to David Schuyler.
These several conveyances invested George Klock, the father of the lessors of the plaintiff, with the title to an undivided fourth part, and an undivided eighth part of lot No. 2, in the Canajoharie Castle tract (being the premises in dispute), provided the portions of land previously conveyed to Schuyler are located in some other part of the tract, and the fourth and the eighth parts amount to three eighths of the premises, or the quantity of land recovered by the verdict. The lessors of the plaintiff were proved to be the heirs-at-law of Klock; and this title, so deduced, is prima facie evidence of a good title to the premises, to the extent of the recovery. We are next to examine the several objections which the defendant has raised to its validity.
He has not set up any title in himself under the patent, except it being a deed from the executors of Fonda, in the year 1792, for a part of the premises, and a deed from C. P. Yates, in the same year, for the residue of the premises. These deeds were given only seven years before the commencement of the present suit. The deed from Yates conveyed no title, because there is no evidence that he had any title, or that he was ever in possession; and the deed from the executors of Fonda (admitting that they were authorized to convey) could have operated only on the undivided share of their testator in the lot in question, as the release from Klock to Fonda, in the year 1767, was for another part of the Castle tract.
The first objection raised to the plaintiff's title is, that the Mohawk Indians of the Canajoharie Castle were in possession of the premises, as well as of the whole Canajoharie Castle tract, in the year 1761, and possessed it as their own, and, consequently, that here was an adverse possession, which rendered the deed of 1761 inoperative.
It appeared that the Mohawk Indians had the exclusive possession of the Canajoharie Castle tract, not only in 1761, but as far back as the memory of witnesses could reach, and one of the witnesses who testified to this effect was 90 years of age. The Indians must, then, have been in possession of the tract when the letters patent issued in 1731; but this possession can never be urged against the validity of the patent, or of any of the subsequent conveyances under it. The defendant did not object to the legality of the patent, for he introduced it, and yet it must be apparent, that if the possession of the Indians was sufficient to destroy the operation of the deeds in 1761, it would be equally effectual to destroy the grant from government in 1731. Such a suggestion, however, is inadmissible. The policy, or the abstract right of granting lands in the possession of the native Indians, without their previous consent, as original lords of the soil, is a political question with which we have at present nothing to do. It cannot arise or be discussed in a contest between two of our own citizens, neither of whom deduce any title from the Indians. What would be the effect of an Indian possession or title, in opposition to the grant under the patent, if they were to be brought into collision, is not a question before us. No such title is set up, and the Mohawk Indians have, from the time of the American war, ceased to claim or occupy the lands. The most decent presumption is, that the Canajoharie Castle lands had been previously purchased by government. At any rate, no Indian claim exists, nor does it appear that any controversy with the Indians, as to title, has ever existed. The competency of government to grant cannot be called in question. As to the subsequent alienations under the patent, the doctrine of the common law rendering void the sale of lands, while they are in adverse possession, does not apply. The evil of maintenance could not exist in the case. That evil consisted in selling contentions and law suits, "whereby right might be trodden down, and the weak oppressed." But the Mohawk Indians of the Canajoharie (or Upper Mohawk) Castle, existed and occupied the lands in question, as part of an independent tribe. This tribe inhabited what was formerly called the Upper and Lower Mohawk Castles, and was never held amenable to the jurisdiction of our courts of justice. They possessed their lands in common as belonging to the community, and they continued to be recognized in their independent or national character by the colony government, long after the date of the patent, in 1731, and even down to the time of the American war. This historical fact could be abundantly proved, if requisite, by a reference to the public documents of the country; but it may here be assumed as a fact of public notoriety. The conveyance from one individual to another of a title to these Indian Castles, was not, then, a conveyance of a right in action, since no action could have been sustained against the Mohawk tribe.
The next point raised to destroy the effect of the plaintiff's title, consisted in the allegation of an existing title out of the lessors of the plaintiff, and which was supposed to reside in these same Indians of the Canajoharie Castle, or in some part of them. The Indian title was deduced from the release of Livingston in the year 1763, to three Indians by name, in trust for them, and all the Indians of the Canajoharie Castle. Several objections occur to defeat the force of this objection. If a defendant sets up an outstanding title existing in a stranger, it must be a present subsisting title; it must be one that is living and operative, otherwise the presumption will be that it has become extinguished. Considering the nature of this obstacle, raised by a defendant who has no title, to defeat a plaintiff who shows a good title, the presumption as between them of an extinguishment of the outstanding title, ought to be pretty liberally indulged. It has, accordingly, been held, that the production of an old outstanding lease was not sufficient without showing a possession under it within 20 years, and that a mortgage deed would not be evidence of a subsisting title, if the mortgagee never entered, and no interest had been paid within 20 years.
In the present case, there is good ground to presume an extinction of the Mohawks as a separate tribe. From the time of the American war down to the trial, we hear nothing of the three trustees, or of their cestuis que trust. No person, during all that lapse of time, has appeared under that release, either as a party or a reversioner, to deduce any title or claim founded upon it. The presumption is, therefore, irresistible, that it is no longer a subsisting title. But a still more decisive objection to the release is, that it does not appear ever to have been executed by Klock, notwithing his name is mentioned in the body of it; and no subsisting title, under the patent, is shown to have existed at that time in the other grantors. The possession of the Indians from 1763 to the American war, was not of itself sufficient to justify an inference of a title derived from the releasors, because the Indian possession was merely a continuation of that which had existed from time immemorial. Nor can the presumption of a deed to the Indians be deduced from the note or memorandum in the field book of 1764, since the presumption is rebutted by the fact, that in 12 or 14 years after that time the Indians abandoned the premises and have never since returned. But it is evident that the field book memorandum alluded to the release of 1763, and it demonstrates that George Klock never was a party to the release, for it specifies the names of the actual releasors. There was, then, never any outstanding title as against him; and the other parties were, for aught that appears, strangers, who had no right to give a release; and if any title passed, it is not now a subsisting one, since the Mohawk Indians of the Canajoharie Castle have long since disappeared from the face of the country. Etiam periere ruinoe.
Another objection to the plaintiff's title is deduced from an exception in the deeds of 1761 of the 1,000 and of the 500 acres, previously conveyed to Schuyler. In what part of the tract, covered by the patent, these two portions of land had been previously located, does not appear. There was land sufficient to supply them, without touching any part of the premises; and as the deeds were not explicit, Klock, the grantee, was left at liberty to locate these excepted tracts in whatever part of the patent he pleased, as against every other person but Schuyler. Where a deed may enure in different ways, the grantee shall have his election which way to take it. An exception in a deed is always to be taken most favorably for the grantee; and if it be not set down and described with certainty, the grantee shall have the benefit of the defect.
There is, then, no weight in this objection, and upon a full consideration of the case, the court are of opinion that the motion, on the part of the defendant, for a new trial, must be denied. Rule refused.
"Reports of cases argued and determined in the supreme court of judicature : and in the Court for the Trial of Impeachments and the Corrections of Errors in the State of New York" by William Johnson; ("Johnson's Reports") Vol.13, pgs.367 to 377 (California State Law Library, Sacramento, 1/2004)
JACKSON, ex dem. KLOCK et al., v. RICHTMYER; Supreme Court of Judicature of New York; 13 Johns. 367; August, 1816, Decided.
This was an action of ejectment to recover part of lot No. 4, in the 6th allotment of a tract of land in the town of Minden, and County of Montgomery; granted by letters patent, dated the 13th of November, 1731, to Abraham Van Horne, William Prevost, Philip Livingston and Mary Burnet. The cause was tried before Mr. Justice Platt, at the Montgomery Circuit, in August, 1813.
At the trial the plaintiff gave in evidence an exemplification of the letters patent to Van Horne and others, for eight thousand acres of land; also a release from William Prevost, one of the patentees, to Philip Livingston, another of the patentees, dated the 1st of November, 1734, of his undivided fourth part of the eight thousand acres or tract described in the patent. Philip Livingston, by his will dated the 15th of July, 1748, devised his interest in the tract of eight thousand acres to John Livingston and others, who by deed dated the 3d of February, 1761, conveyed to George Klock and Jellis Fonda, in fee, an undivided moiety of the land contained in the patent, except one thousand acres conveyed to David Schuyler. The plaintiff further gave in evidence a deed from David and Samuel Van Horne, heirs at law of Abraham Van Horne,the patentee, dated the 3d of February, 1761, to Jellis Fonda and George Klock, of an undivided fourth part of the lands in the patent, except five hundred acres conveyed to David Schuyler. It was admitted that George Klock died in 1787. and that the lessors of the plaintiff are his heirs at law; and that the defendant was in possession of part of lot No. 4, in the sixth allotment of the above-mentioned tract.
The defendant then gave in evidence a release dated the 22d of November, 1763, of the sixth allotment, from Philip Livingston, William Livingston, Walter Rutherford, John Duncan, and William Burnet Brown, styling themselves part owners of the land in the said patent, to three Indians and their heirs, in trust for themselves and all the rest of the native Indians belonging to the Canajoharie Castle, and their heirs forever. The defendant next gave in evidence a bill of discovery, filed in chancery by John Lansing, Jr., and others, including the present defendant, against the lessors of the plaintiffs, and their answers thereto. Jacob G. and George G. Klock, two of the lessors, in their answer, admit that lands of certain Indians of the Mohawk tribe were included in the sixth allotment of the said patent, and that the Indians were greatly discontented on account of this grant; but they deny that their father, George Klock, at any time, ever assented to the release to those Indians, but refused to execute it. They admit that proceedings in partition, were had some time about the year 1764, and that Isaac Vroman, Rynier Mynderse, and Joseph R. Yates, were appointed commissioners for that purpose, who divided the tract into six allotments, and distinguished them numerically, and completed the map and field book on or about the 9th of October, 1764. The defendants say that they are ignorant from what motives or opinions the commissioners acted, nor do they believe that any particular instructions were given by the proprietors of the patent, or by any of them, to the commissioners, to proceed to a subdivision of the sixth allotment, differing from those given for the partition of the other parts of the tract; but believe that they proceeded to a subdivision of the sixth allotment only from motives of duty. They admit that a draft of the lots into which the sixth allotment was subdivided, was duly made by the commissioners; and that, on such drawing, lot No. 1, in the said sixth allotment, was drawn to the share of the patentee, Philip Livingston; lot No. 2 to the share of the patentee, Abraham Van Horne; No 3 to the share of the patentee, Mary Burnet; and No. 4 to the share of the other patentee, William Prevost. They deny that lot No. 1 was assigned to their ancestor, George, Klock, as his full portion in the sixth allotment; but that, the opposition of the native Indians having ceased, Jellis Fonda and George Klock took possession of lot No. 1 as part of their share in the sixth allotment; and in conformity to an adjustment between themselves, George Klock released to Jellis Fonda one fourth of lot No 1, and Fonda released to Klock three fourths; and Klock, having possessed himself of lot No. 1, sold and conveyed his three fourths thereof to Johannes Luke. They admit that the Indians continued on the land until 1779; and that, after they removed, some of the tenants and others, residing on the lands, at the request of the defendants, entered into some agreements in writing for leases to be given whenever the defendants should obtain a patent for the land, or have their titles confirmed by the State; and they say that the reason of the last-mentioned stipulation in the agreement, was because they were ignorant of the extent of their rights in the sixth allotment. They say that they have heard, but whether true or not they are unable to tell, that Jellis Fonda did obtain an instrument, or deed (dated, as charged in the bill, the 6th of July, 1789), from some of the Indians of the Upper Mohawk Castle, for the sixth allotment, which instrument they insist to be invalid. They admit that Jellis Fonda, and the following persons, to each of whom, as was charged in the bill, Fonda conveyed an undivided fifth part to John Lansing, Jr., Abraham Van Vechten, Abraham G. Lansing, and Christopher P. Yates, commenced actions of ejectment against them, and recovered possession, of which suits the defendants had notice, but judgment was obtained by default therein, by the negligence of the attorney. The defendants say that they claim, in the ejectment suits now pending, the half of lots Nos. 2 and 4 in the sixth allotment, and admit that their father, George Klock, was a party to the partition before mentioned. They state that no part of the one thousand acres excepted in the deed from the devisees of Philip Livingston to Fonda and Klock, and the five hundred acres excepted in the deed from Abraham Van Horne, were contained in the sixth allotment. From the field book of the partition referred to in the answer, it appeared that the first, second, third, and fourth allotments were subdivided into eight lots each; and the fifth and sixth allotments into four lots each; that, on the balloting, lots Nos. 1 and 2 of the first allotment, lots Nos. 1 and 8 of the second allotment, Nos. 1 and 5 in the third allotment, Nos. 1 and 3 in the fourth allotment, No. 3 in the fifth allotment, and No. 1 in the sixth allotment, fell to the share of Philip Livingston. Lots Nos. 3 and 7 in the first allotment, Nos. 3 and 4 in the second allotment, Nos. 2 and 3 in the third allotment, lots Nos. 2 and 6 in the fourth allotment, No. 2 in the fifth allotment, and No. 4 in the sixth allotment, fell to the share of William Prevost. Lots Nos. 4 and 8 in the first allotment, lots Nos. 1 and 2 in the second allotment, Nos. 6 and 8 in the third allotment, Nos. 4 and 7 in the fourth allotment, and No. 2 in the sixth allotment, fell to the share of Abraham Van Horne. Lots Nos. 5 and 6 in the first allotment, Nos. 5 and 6 in the second allotment, Nos. 4 and 7 in the third allotment, Nos. 5 and 8 in the fourth allotment, No. 4 in the fifth allotment, and No. 3 in the sixth allotment, fell to the share of Mary Burnet.
The answer in chancery of other of the lessors of the plaintiff, was read, containing the same allegations as the answer of Jacob G. and George G. Klock, and further insisting that there had been no subdivision of the sixth allotment, previous to the Revolutionary War, except on paper, and that, subsequent to the war, only lot No. 1 had been run out, by actual survey.
The defendants gave in evidence a release from George Klock to Jellis Fonda, dated the 27th of February, 1767, by which he released to him his interest in certain lots in the patent, among which was lot No. 1 of the sixth allotment, describing the lands, as having been divided and laid into lots, in September, 1764, by Isaac Vroman, Esq., one of the commissioners appointed to make partition, as appeared by his map and field book, filed in the clerk's office of the County of Albany; also an agreement, dated the 26th of January, 1763, between George Klock, of the one part, and John Duncan and Walter Rutherford, of the other, that Klock should convey to Duncan and Rutherford one half of all his share in the Canajoharie patent, which he bought in company with Jellis Fonda, at the same rate, and with the same warranty it was conveyed to him.
The defendant further gave in evidence the following agreement : "The proprietors in the Canajoharie patent having agreed to divide the said patent amongst them into patentees' shares, the following persons met at New York, the 27th day of November, in the year 1764, to wit : Jacob G. Klock, in behalf of the father, George Klock; Isaac Vroman, in behalf of Jellis Fonda, the first holding three fourths, and the other one fourth of patentees' shares; Philip Livingston, who holds three eighths of a share; Isaac Vroman, for John Duncan, who holds five eighths of a share; William Livingston, who holds three eighths of a share, and Walter Rutherford, who holds five eighths of a share. They accordingly drew for the different shares, when Philip Livingston and John Duncan drew the patentee share that belonged to Abraham Van Horne; William Livingston and Walter Rutherford, the share that belonged to W. Prevost; and George Klock and Jellis Fonda, the share that belonged to Philip Livingston. They have, accordingly, agreed that whatever lands shall be drawn by the commissioners to the patentee rights above mentioned shall belong to and be the property of the subscribers, in the shares above specified, and mutually agree to sign releases accordingly." This agreement was signed with the other parties by "Jacob G. Klock for George Klock."
The original map and field book of the partition were produced in evidence, and it was proved that neither the balloting book, nor any other papers relating to the partition, could be found in the proper offices. By the map and field book it appeared that partition of the tract was made by Isaac Vroman, Rynier Mynderse, and Joseph R. Yates, commissioners appointed by virtue of the Act of the late Colony of New York, passed January 3d, 1762, and that the map and field book had been filed, as the law required, on the 9th of October, 1764; and that, by the partition, the tract was, pursuant to the directions of the Act, divided into six allotments, and each of those allotments subdivided into four or eight lots, the sixth allotment being subdivided into four lots, each containing eight hundred and fifty acres, and numerically distinguished in such map and field book from one progressively; and that the whole of the tract was balloted for to the patentees named in the patent. It was thereupon admitted, on the part of the plaintiff, that No. 1 of the sixth allotment was drawn as and for the share of Philip Livingston, and No. 3 of the same allotment, as and for the share of Mary Burnet, to which latter lot the plaintiff disclaimed all title; and also admitted that all the lots drawn on the ballot to the share of the patentee, Philip Livingston, were held under title derived from Klock and Fonda.
The defendant then gave in evidence a release from William Burnet Brown, describing him as the son and heir of Mary Burnet, to Adam Garlock, Solomon Moyer, and John Pickard (who, or persons claiming under whom, still had possession), dated 19th of April, 1765, for the lots drawn to the share of Mary Burnet, in the first five allotments; also, a partition deed between the last-named grantees, dated October, 24th, 1766; and a release from John Duncan and Walter Rutherford, to Jellis Fonda, dated the 28th of June, 1765, which recited that George Klock and Jellis Fonda were seised of an undivided sixth eighth part of the lands contained in the said patent, as tenants in common; and that Jellis Fonda, being so seised, conveyed an undivided moiety of his share to Philip Livingston, of the City of New York, merchant, and William Livingston, of the same place, attorney at law; and the other moiety to Walter Rutherford and John Duncan; that partition of the tract was made in 1764, and that it was agreed by the owners of the patent or their attorneys, in the presence of the commissioners, before the allotment of the land, that the part and shares thereunder described for Jellis Fonda should fall in with the part and share of lots drawn for Jellis Fonda and George Klock, and then conveyed to the said Jellis, in fee, in his actual possession then being, by virtue of a bargain and sale, for one year, bearing date the preceding day, and by force of the Statute of Uses, one full third part of all that land conveyed to Walter Rutherford and John Duncan, by Jellis Fonda, lying partly in lots Nos. 1 and 2 of the first allotment, partly in lots Nos. 7 and 8 of the second allotment, partly in lots Nos. 1 and 5 of the third allotment, partly in lots Nos. 1 and 3 of the fourth allotment, and partly in lot No. 3 of the fifth allotment, all which lots were drawn in behalf of the said Jellis Fonda and George Klock.
The defendant also gave in evidence a contract under the hands and seals of Jacob G. Klock, one of the lessors of the plaintiff, and Moses and Abraham Van Campen, dated the 17th of March, 1788, by which the former agreed to sell the latter No. 1 of the fourth allotment of the said patent, in fee. Also, a conveyance, in fee, from George Klock to Johannes Luke, dated the 21st of July, 1784, for his three fourths of lot No. 1 in the fourth allotment. Also, a partition deed between Jellis Fonda, John Lansing, Jr., Abraham G. Lansing, Christopher P. Yates, and Abraham Van Vechten, of the whole sixth allotment, except lot No. 1, dated the 1st of September, 1790. Also, the will of Jellis Fonda, dated the 27th of May, 1791, empowering his executors to sell and convey his real estate; and a conveyance from the executors to the defendant and John Richtmyer, dated the 9th of May, 1792, for one hundred acres of land released to Fonda in the sixth allotment, pursuant to the partition of 1790, being the premises in question. Also, two agreements executed by the lessors, Jacob G. Klock and George G. Klock, the one to David A. Schuyler, dated the 10th of January, 1791, and the other to Robert Gardner, dated the 29th of September, 1790, by which they promised to give leases of two parcels of land in the sixth allotment, when they should obtain a title or confirmation from the State.
Parol evidence was also offered by the defendant, further to show a possession, in conformity to the original partition of the patent, and by the lessors of the plaintiff to show a possessory title in themselves. The jury, under the direction of the judge, found a verdict for the plaintiff for three eighths of the premises, subject to the opinion of the court on a case containing the above facts.
(opinion) VAN NESS, J., delivered the opinion of the court: The lessors of the plaintiff, having deduced a title to an undivided portion of the lands granted to Van Horne and others, by the letters patent of 1763, are entitled to recover, unless a valid partition has been made of these lands among the proprietors; and the principal question presented by the case is, whether sufficient evidence of such partition has been shown on the part of the defendant. It seems to be admitted that a partition has been duly made of all the lands described in the letters patent, except those contained in the sixth allotment, comprehending the premises in question; but it is argued that this allotment is still to be considered as undivided. I am at a loss to discover any solid ground for this distinction. The partition was made under the Colonial Act of 1762, and all the proceedings to establish a perfect partition under that Act have been produced, except the ballot book, which cannot, at this day, be found. From the proceedings that have been discovered, and which are set forth in the case, the commissioners, as well as the parties, evidently intended to divide the whole patent; and that they did so divide it, is expressly set forth in their field book and map; and there is not a single fact or circumstance, that I have been able to discover, showing that the sixth allotment was not as much the subject of partition as any of the other allotments. That allotment, as well as the other five, was laid out into lots, and upon the balloting, No. 1 was drawn to the share of the patentee, Philip Livingston; No. 2 to that of Abraham Van Horne; No. 3 to that of Mary Burnet; and No. 4 (comprehending the premises in question) to that of William Prevost. After the commissioners had laid out the whole tract into six allotments, and subdivided the first four allotments into eight lots, and the remaining two into four lots, the parties to the partition met at the City of New York, to proceed to a ballot pursuant to the Act. By a written agreement between the proprietors and the parties to the partition, on that occasion, dated the 27th of November, 1764, it appears that their respective interests were ascertained and settled as follows, to wit : George Klock and Jellis Fonda owned one of the patentees' shares (Klock three fourths, and Fonda one fourth thereof), Philip Livingston three eighths of a share, John Duncan five eights, William Livingston three eighths, W. Rutherford five eighths, making three fourths of the whole tract; Mary Burnet, or her heirs, holding the remaining fourth. The proprietors having agreed "to divide the said patent amongst them, into patentee shares, they accordingly drew for the different shares, when Philip Livingston and John Duncan drew the patentee share that belonged to Abraham Van Horne, William Livingston and W. Rutherford the share that belonged to William Prevost, and George Klock and Jellis Fonda the share that belonged to Philip Livingston; and they accordingly agree, that whatever lands shall be drawn by the commissioners to the patentee rights above mentioned, shall belong to and be the property of the subscribers" (to the said agreement) "in the shares above specified, and mutually agreed to sign releases accordingly." It was objected to this agreement, in the course of the argument, that there was no evidence to show that Jacob G. Klock was authorized to sign the agreement in behalf of his father, George Klock. It is true there is no express evidence of this fact, but that he was duly empowered to represent his father, is most satisfactorily proved by his subsequent ratification of this act, to which I will presently advert. By the map and field book duly filed pursuant to the Colonial Partition Act, it appears that "partition of the said tract of land, granted by the letters patent aforesaid, was made by I. Vroman, R. Mynderse, and Joseph R. Yates, Commissioners appointed by virtue of the Act of the late Colony of New York, passed the 3d of January, 1762; and that the said map and field book had been filed as the law required, on the 9th of October, 1764; and that, by the said partition, the said tract was, pursuant to the directions of the said Act, divided into six allotments; and each of those allotments subdivided into four or eight lots, and the said sixth allotment, each containing eight hundred and fifty acres; and numerically distinguished in such map and field book from No. 1, progressively; and that the whole of the said tract was balloted for to the patentees named in the said letters patent." It further appears by the case that the plaintiff, at the trial, "admitted that lot No. 1, of the sixth allotment, was drawn as and for the share of the patentee, Philip Livingston; and lot No. 3, as and for the share of the patentee, Mary Burnet, to which latter lot the plaintiff disclaimed all title." It is thus clearly shown that a partition, in fact, was made of the whole tract contained in the letters patent; and that George Klock and Jellis Fonda owned, at the time, but one patentees' share, being one fourth of the whole tract; and I now proceed, as briefly as the subject will permit, to show that, whatever imperfection may exist in the evidence of a valid partition, under the Colonial Act, owing to the non-production of the ballot book (if, indeed, any such imperfection exists), is amply supplied by the subsequent acts of the parties, and particularly by those of George Klock.
It was admitted at the trial, or is proved either by the answer to the bill in chancery or by other written or oral testimony:
1st. That the lands in the first five allotments always have been, and still continue to be held according to this petition.
2d. That all the lots drawn on the said ballot to the share of the patentee, Philip Livingston, now are, and for a long time have been held under a title derived from George Klock and Jellis Fonda.
3d. That William Burnet Brown, claiming to be heir at law of Mary Burnet, ratified the partition, by selling and conveying to Adam Garlock and others, in 1765, and within a few months after the partition was completed, "the lots drawn to the share of the patentee, Mary Burnet, in the aforesaid partition, in the first five allotments of said patent ;" and that Garlock and his co-grantees, the following year, made partition of these lots among themselves, all of which have ever since been held under a title derived from Garlock and his associates.
4th. That in April, 1766, George Klock and Jellis Fonda entered into a written agreement to divide all the lots drawn by them on the general partition, and in strict and exact conformity thereto. By this agreement, George Klock took, among other lots, precisely three fourths of lot No. 1, in the 6th allotment, and Fonda one fourth; and, at this time, no right or title to any other part of the sixth allotment was suggested or pretended by George Klock; nor, indeed, was any such claim made until after the time the Indians left it.
5th. That on the 27th of February, 1767, George Klock carried the last-mentioned agreement into effect, by releasing to Fonda his interest in the lots therein mentioned and designated; and describing the lands released as having been divided and laid out into lots, in September, 1764. by Isaac Vroman, Esq., one of the Commissioners, and the surveyor appointed to make partition of the land contained in the patent of Van Horne and others, as appears by his map and field book, filed in the clerk's office, in the County of Albany.
6th. That George Klock, in July, 1788, sold and conveyed three fourths of lot No. 1, in the sixth allotment, to Johannes Luke, under which deed it has been held ever since. These are some of the many equivocal acts by which the partition of 1764 is recognized and ratified, not only by George Klock, but by others of the parties to it. Many more might be added, equally explicit and important, were it necessary. From those which have been adverted to, the authority of Jacob G. Klock to sign his father's name to the agreement of November, 1767, is placed beyond all doubt. And it is equally clear that George Klock not only admitted the validity of the partition of 1764, of the first five allotments, but also, particularly that of the sixth allotment. A partition thus made, acted upon and ratified, and under which rights have been acquired by purchasers, from the parties to it, ought not to be disturbed. The court is bound to presume that everything has been done which was required to be done, to give it validity. The partition, then, being fully proved and established, the lessors of the plaintiff must fail, inasmuch as the defendant has shown a subsisting title to be out of them; and it is in this respect, chiefly, that the present case is distinguished from that of Jackson ex dem. Klock et al., v. Hudson, 3 Johns. 375.
The counsel for the plaintiff, however, claims that the lessors of the plaintiff are entitled to recover upon their possessory title; and it therefore becomes necessary to say a few words in relation to that point. The possession which has been attempted to be shown, commenced some time after the Revolutionary War. It was a mere naked entry, unaccompanied with any title, and, in fact, without the color of title. It may well be doubted whether this possession was of such a nature as would have conferred any right, even if it had endured twenty years, upon those who took it, or whether it would have taken away any right from the true owner. Within twenty years, however, an action of ejectment was commenced against the persons then in possession, under some of the heirs of George Klock; and the lessors of the plaintiff, in that action, having obtained a judgment by default, turned the possessors out, and entered into possession under a hab. fac. possessionem The defendant is a bona fide purchaser, for a valuable consideration, from the persons who thus obtain possession under that judgment. Although it is true, as was said by this court in the case of Jackson ex dem. Wright et al., v. Dieffendorf & Zoller, 3 Johns. 269, that no right is definitively determined by a judgment in ejectment, yet it is equally true, that when a party enters under such a judgment, and then conveys to a third person for a valuable consideration, who enters under his deed, that such an entry and possession afford as high and solemn prima facie evidence of right as can well be exhibited; and higher and better evidence of title than the mere naked occupancy of these lands, indisputably belonging to other persons, by the representatives of George Klock. The lessors of the plaintiff, in their answer to the bill in chancery, do not put their right to recover upon the ground of possession. They rely, exclusively, upon the title which they claim to be vested in them, under the letters patent, and that title having failed, they are not entitled to recover at all.
Judgment for the defendants.
"History of Montgomery County [New York] : embracing early discoveries, the advance of civilization, the labors and triumphs of Sir William Johnson, the inception and development of manufactures : with town and local records, also military achievements of Montgomery patriots" ed. by Washington Frothingham; pub. Syracuse, N.Y.: D. Mason & Co., 1892, 843 pgs. (LH4398, HeritageQuest images 4/2007; FHL book 974.746 H2f and film 851,121 item 1 and 934,839 item 2 and fiche 6,071,331)
Part II, pg.283-284: Klock, Dr. Arie V., Canajoharie, was born in Glen on the 28th of March 1862, and is a son of Reuben and Martha (Van Wie) Clock, natives of this county and born in Palatine. ... In April, 1890, he came to Ames and has had an extensive and lucrative practice. On the 6th of August, 1882, he married Hattie D.B., daughter of Charles D.B. and Delilah (Duncan) Freer of Palatine Bridge. Her father was drowned in the Johnstown flood in Fulton county in 1889.
Return to The Genealogy Bug's Home Page