Gertrude Hartman Pickard

http://genforum.genealogy.com/windecker/messages/19.html

Proof that Gertrude Windecker who married Jacobus Pickard was the daughter of immigrant Captain Johann Hartman Windecker is found in the following land dispute case before the New York Supreme Court in 1803:

===========================================================================================================

Albany, August 1808

Jackson, ex dem. WRIGHT and others, against DIEFENDORF and ZOLLER.

THIS was and action of ejectment, for 25 acres of land. The case stated that the patent of Hartman Windecker and others was dated the 12th of November, 1731, and that, in 1743, it was divided into eleven lots, and numbered from to eleven, inclusive; that partition deeds were executed in 1744 by the proprietors, by which lot No. 2 was released to Windecker; that he, on the 28th of March, 1754, conveyed 25 acres of the south end of lot No. 2 to his daughter Gertrude, who married Jacobus Pickard, the 28th of October 1765; that Pickard and his wife conveyed the 25 acres to Frederic Blank, who devised the same to House and Wright, two of the lessors of the plaintiff; that in 1765, Blank took possession of the premises under the deed, and such possession continued in him, and in others claiming under him, until May 1803, when Wright, the tenant, was turned out of possession, by a writ of possession, under a judgment by default, in an action of ejectment, in favor of the present defendants, against Wright.

It was admited that the defendants are owners and possessors of lot No. 3, in the said patent, which, according to the testimony of Cornelius C. Beekman, a surveyor, and the partition deeds, included the premises

The question on the case was, whether the plaintiff was entitled to recover.

Van Vechten, for the plaintiff.

Cady, for the defendant.

Van Ness, J., delivered the opinionof the court. Shall a possession of 38 years be disturbed, because, from a recent survey, it appears not to correspond with the partition deeds executed 60 years before? Shall not the parties to that partition, and all those who claim under them, be concluded by so long an acquiescence? It is unquestionably the true rule, and every legal presumption, every consideration of policy requires, that this evidence of right should be taken to be conclusive. A locaction made in 1765, and probably, in exact conformity to the survey made on the partition in 1744, and quietly suffered to be continued by the proprietors of the adjoining lot, until 1803, is, and ought to be, final and conclusive. These circumstances furnish the best and most satisfactory evidence of the true line of division between the two lots. This general doctrine will not be denied, and the only question is, as to the application of it to the present case. What is to be the effect upon this title, on the recovery in ejectment by default, and an entry pursuant thereto, in 1803? This is the real point in dispute between the parties.

The recovery, in 1803, against the lessors of the plaintiff, does not conclude them from setting up this evidence of title. The amount of a recovery in ejectment is accurately and forcibly stated, by Lord Mansfield, in the case of Atkyns v. Horde. (1 Burr. 114) It is a recovery of the possession (not of the seisin or freehold) without prejudice to the right, as it may afterwards appear, even between the same parties. He who enters under it, in truth and substance, can only be possessed according to right. If he has a freehold, he is in as a freeholder. If he has a chattel interest, he is in as a termor. If he has no title, he is in as a trespasser. If he had no right to the possession, then he takes only a naked possession. This is the obvious and established construction of the nature and effect of a judgment in the action of ejectment. It follows, therefore, that Wright, one of the present lessors of the plaintiff, lost the possession only, without prejudice to the right. The right under the location, after the possession and acquiescence therein, remains in the lessors of the plaintiff, and is not impaired by the recovery in 1803.

The plaintiff must, therefore, have judgment.

Yates, J., and Thompson, J., not having heard the argument in the cause, declined giving any opinion.

Judgment for the plaintiff.

Source: Reports of Cases Argued and Determined in the Supreme Court of Judicature and in the Court for the Trial of Impeachments and the Correction of Errors in the State of New-York

by William Johnson, New York (State). Supreme Court, New York (State). Court for the Trial and Impeachments and Correction of Errors