
    Mary S. Van Winkle, Respondent, v. Elizabeth M. Van Winkle, Respondent, and Others, Defendants, Impleaded with Grace B. Ruggles and Others, Appellants.
    
      Covenant of seizin — it estops the covenantor from asserting that his interest is not as stated — recitals in a deed, how far binding—when a description operates to convey title to the middle ofahighway —legal presumption as to the grantor’s intent.
    
    A covenant in a deed, which specifies the undivided interests of the several grantors, that the grantors “are respectively seized in the parts or proportions hereinabove particularly specified of a sure, absolute and indefeasible estate of inheritance in fee simple of, in and to the said tract,” estops the grantors and all persons claiming under them from thereafter asserting that the grantors’ respective interests were,not as stated in the deed.
    The general rule is that a recital in a deed of a material fact is binding and conclusive upon the parties and those claiming under them as privies in blood, in estate, or in law.
    When land is described as running to and thence along a highway, the fee of which is in the grantor, the boundary of the land conveyed is the center of the highway.
    There is a legal presumption against the existence of an intention on the part of a grantor, who owns the fee of a highway on which the land conveyed abuts, to reserve the fee of the highway, and this presumption is overcome only by express words which show an intent to exclude the highway from the subject- ' matter of the grant.
    Charles Ward Apthorp died in 1797 seized of a tract of land through which extended the Bloomingdale road. From this road extended a public highway, the fee of which was in Apthorp, called cross road to Harlem, • or Apthorp lane or Jauncéy’s lane. In 1799 Apthorp’s heirs and one Williamson conveyed to one Jauncey by a deed with covenant of seizin a portion of the land abutting on the south side of the lane or cross road by a description reading as follows: “ Beginning at' the corner of a field at the junction of the Bloomingdale road with a cross road that leads to Harlem; thence running along the Bloomingdale road south * * *; then * * * east * * *; then north * * *; then * * * east * * *■ then north * * *; then * * * west * * * to the beginning.”
    In 1801 a map of the lands of which the said Charles Ward Apthorp died seized was made which designated lot No. 6 as abutting on the north side of the lane and lot No. 8 as abutting on the south side thereof.
    In 1802 Williamson and all the Apthorp heirs, with the exception of Charlotte Vandenheuvel, conveyed to the said Charlotte Yandenheuvel lot No. 6 as designated on the map, by a deed describing the premises as follows: “Beginning at,a stake by the fence on the cross road leading to Harlem, * * *; thence * * * north * * * to lot number five; thence along the southern boundary of lot number five * * * to the eastern boundary of lot number four-, thence by lot number four south * - "■ to the public road; then * * * east along the road * * * to the place of beginning.”
    
      On the same days Williamson and the surviving. Apthorp heirs, with the exception of Ann Apthorp, conveyed to the said Ann Apthorp lot Fío. 8, as desig- . nated on the map by a deed describing the premises as follows: “ Beginning at a stake by the fence on the public cross road, the corner of Mr. Jauncey’s land; thence running south * * *; thence * * * west * * * thence south * * * along Mr. Jauncey’s land; then * * * east '* * * to a Stake * * * the corner of lot number seven; thence north * * * to the public road; then * . * * West along the public road * * * to the place of beginning.”
    The two latter deeds recited that they were made to carry into effect an agreement for the partition of the lands of which the said Charles Ward Apthorp died seized.
    
      Held, that each of the three deeds conveyed title to the center of the cross road or lane.
    O’Brien, J., dissented.
    Appeal by the defendants, Grace B. Buggies and others, from a final judgment of the Supreme Court in favor of the plaintiff and the defendant Elizabeth M. Van Winkle, entered in the office of the' clerk of the county of New York on the 27th day of April, 1903, upon the decision of the court, rendered after a trial at the New York Special Term in the. above-entitled partition action, with notice of an intention to bring up for review upon such appeal" an interlocutory judgment entered in said clerk’s office on the 17th day of. February, 1903, and also an order entered in said clerk’s office on the 17th day of February, 1903, denying a motion made by certain of the defendants for a new trial of the issues of fact preliminarily submitted to a jury.
    The parcel of land in dispute in this action is about 218 feet long and 37 feet wide. It is situate in a portion of what was formerly called Crossroad to Harlem, and is designated “A” on the following map:
    
      
    
    
      The respondents claim that they are the ownez’s of said tract, having acquired the same by mesne conveyances from Hugh Williamson and the heirs at law of Charles Ward Apthorp, deceased, while the appellants claim an undivided interest therein as heirs at law of said Apthorp.
    Certain issues of fact raised by the pleadings were tried before a jury, by which a verdict was rendered in favor of the plaintiff and the respondent Van Winkle. Subsequently the case came on for trial at Special Term, where a judgment was rendered sustaining the claim of the plaintiff and the respondent Van Winkle, and adjudging that the appellants do not own and have no interest in said tract. The appeal is from that judgment, and involves also a review of the trial had before the jury and an order denying a motion for a new trial. . '
    
      James A. Deering, for the appellants Ruggles and others.
    
      Edward R. Vollmer, for the appellants Hamilton and others.
    
      Edward Mitchell, for the plaintiff, respondent.
    
      Henry F. Miller, for the defendant, respondent.
   McLaughlin, J.:

In and prior to 1785 Charles Ward Apthorp owned a tract of land of about 200 acres, through which, extending north and south, was a public thoroughfare called the Bloomingdale road, from which on the west to the Harlem Commons on the east extended a public way designated Crossroad to Harlem, or Apthorp’s lane, or Jauncey’s lane. The fee of this crossroad or lane was in Apthorp, and the parcel of land the title to which is the subject-matter of this litigation is a portion of that roadbed. In 1785 Apthorp mortgaged all of his land lying east of the Bloomingdale road to the Marine Society of the City of New York for $2,500, which at the time of his death (May, 1797) remained unpaid. He died intestate, leaving him. surviving nine children (among whom were two daughters, Ann and Charlotte, the latter having married John C. Vandenheuvel) and two grandchildren, the issue of a deceased daughter who had married Hugh Williamson. Subsequent to the death of Apthorp the Marine Society commenced an action to foreclose its mortgage, to which the administrator of Apthorp’s estate and Hugh Williamson, a.s guardian of the two grandchildren, were made parties. The action resulted in a sale of the land covered by the mortgage by the sheriff of the county of New York, at which Williamson became the purchaser, paying therefor $51,000. After deducting the amount due upon the mortgage, together with the costs and expenses of the sale, the balance was paid to the administrator and bv him distributed among those entitled thereto. In pursuance of the sale the sheriff, on the 23d of April, 1799, delivered to Williamson a deed, absolute in form, of .the entire tract sold. ■

It is contended by the appellants that the record title to the land in question 'became vested in Williamson under this deed, but .they assert he purchased it as trustee or agent of the Apthorp heirs, and in subsequently dealing with it acted in the same capacity. Upon this issue and another raised by the pleadings a jury trial was had, at the conclusion of which the court directed a verdict that Williamson in making the purchase did not act as the agent or trustee of the Apthorp heirs, nor did he in subsequently disposing of the land purchased or any part of it do so for their benefit. An exception was taken to the ruling, and this is one of the questions sought to be reviewed on the appeal. The conclusion at which we have arrived renders it unnecessary to determine whether the exception was well taken, because if it be assumed that it were, and that Williamson did in fact take title as the representative of or agent for the Apthorp heirs, it does not aid the appellants, and, therefore, they could not have been injured by it.

This brings us to the' consideration of the real question in the . case, and that is, whether the plaintiff and the respondent Van Winkle have, as the trial court held, acquired by mesne conveyances the title to the parcel in question. The fact is not disputed that in May, 1801, a map was made by .Benjamin Taylor, similar to the one set out in the statement preceding this opinion, of the lands of which Charles Ward Apthorp died seized, and that conveyances thereafter made of said land either by Williamson or the Apthorp heirs were with reference thereto. Nor do we think it can he seriously disputed that the plaintiff and the respondent Van Winkle have acquired in the parcel in question whatever interest ■Charlotte Vandenheuvel had as the owner of lot 6, Ann Apthorp ■as the owner of lot 8, and the Jaunceys as owners of the lot sold to them. Each of said lots is designated on the Taylor map referred to. If, therefore, Charlotte Vandenheuvel, Ann Apthorp and the ■Jaunceys acquired title to the parcel in question by virtue of the •conveyance to them of their respective lots, the plaintiff and the respondent Van Winkle now have such title, because the subsequent conveyances were sufficient to place in them whatever title the original parties had.

■ The first conveyance in point of time is the one to the Jaunceys. It bears date the 1st of August, 1799. The grantors therein named are Hugh Williamson and all of the heirs of Charles W. Apthorp, except one, whose interest had apparently been acquired by one of the others. The land conveyed is described as follows: Beginning at the corner of a field at the junction of the Bloomingdale road with a cross road that leads to Harlem ; thence running along the Bloomingdale road south * * *; then * * * east * * *; then north; * * *; then * * * east * * *; then north * * *; then * * * west * * * to the beginning.” In this conveyance a covenant is inserted to the ■effect that each grantor is the owner of an undivided one-tenth part, except one, who is the owner of two undivided tenth parts, having apparently acquired one-tenth from one of the other Apthorp heirs; and a further covenant that they, the said parties of the first part, are respectively seized in the parts or proportions hereinabove particularly specified of a sure, absolute and indefeasible estate of inheritance in fee simple of, in and to the said tract.” This covenant unquestionably estopped all of the grantors and all persons claiming under them from thereafter claiming that their respective interests were not as therein stated. The general rule is that a recital in a deed of a material fact is binding and conclusive upon the parties and those claiming under them as privies in blood, in estate or in law. (Demeyer v. Legg, 18 Barb. 14; Jackson v. Parkhurst, 9 Wend. 209; 24 Am. & Eng. Ency. of Law [2d ed.], 60.)

The other two conveyances, one to Charlotte Vandenheuvel and the other to Ann Apthor.p, hear date the ,3.0th of November, 1802. ■ In the. former the land conveyed is lot 6 on the Taylor map, and described, as follows: “Beginning at a stake í>y tile fence on the cross road leading to Harlem, * *' * ; thence A * . * north “ * * to. lot number fivethence along the southern, boundary of lot. number five * * * to the eastern boundary of lot number, four; thence by lot number' four, south * - * * to the public toad ;• then * * * east along the road * * *■ to the place of beginning.”: The grantors were Williamson and all the Apthorpv' heirs, except Charlotte and one other who. had - apparently died Without issue. In the latter the land conveyed is- lot 8 on said map . and described as follows: “ Beginning at a stake by the fence on . the public.cross road, the corfier of Mr. Jauncey’s land ;. thence run-, ning south, * * *; thence * * *: west * * thence south * * * along Mr. Jauncey’s land; then *' * * east *' * * to a stake * * * the corner Of lot number seven; thence north, * * * to the public road; then * * * west along the public road * * * to the place, of beginning.” The grantors are .the same as in the conveyance to. Charlotte, with the exception of Ann, who took Charlotte’s place. •

• z It will' be observed that in none .of the descriptions is the starting > point or-boundary: of the land conveyed “on the side” of the lane, ;, and,, therefore., even an inference that the grantors intendéd to; exclude the fee therein is not justified. When land is described as running to and thence along a highway, the boundary of the land, conveyed.— the grantor owning the fee of the roadbed — is the center,: This, is the general, rule. (Matter of Ladue, 118 N. Y. 213; Matter of Mayor, 20 App. Div. 404; S. C. affd., 155 N. Y. 638.) There is.a.legal presumption against a grantor, who owns, the fee of a highway on. which, the land conveyed abuts, intending to reserve such fee to himself (Holloway v. Southmayd, 139 N. Y. 400), and such-presumption is only. overcome by express words which show an intent to exclude the highway from, the subjectTmatter of. the grant. . (Potter v. Boyce, 73 App. Div. 383; S. C. affd., 176 N. Y. 551.)

There are no .words in any of the conveyances sufficient to overcome the presumption, referred' to. Not only this, but there are recitals in the conveyances to Charlotte and Ann which, as it seems to us, conclusively establish an intent on the part of the grantors in each of the deeds to convey to the center of the lane. The recitals are: “ Whereas the said parties * * * are the proprietors as tenants in common of all the real estate whereof Charles Ward Apthorp * * * died seized, * * * And Whereas, the said parties * * * as proprietors of the said real estate did, in virtue of a written agreement bearing date the twenty-ninth day of Hay in the year one thousand eight hundred and one, proceed to make partition of the said real estate amongst themselves, And Whereas, upon such partition, the lot of land hereinafter particularly described fell to the share of the said party of the second part: Now, Therefore, this Indenture Witnesseth, that in order to carry the said partition into effect, * * This recital not only strengthens the presumption above alluded to, but we think establishes an intent to convey to the center of the lane. All of the land had been divided. The part included in the lane was not reserved ; hence it must follow that it was intended to be included in the respective conveyances of lots abutting thereon. The conclusion thus reached renders it unnecessary to take into consideration the deed from Williamson to Charlotte Vandenheuvel, dated November 16, 1802.

Other errors are alleged, but after an examination they do not seem to be of sufficient importance to be here" considered.

The judgment appealed front should be affirmed, with costs.

Patterson, Hatch and Laughlin, JJ., concurred; O’Brien, J., dissented.

O’Brien, J. (dissenting):

I dissent, and think that under the authorities the deeds in question cannot be said to convey to the center of the lane; that the descriptions of the deeds expressly limit the boundary to the side of the road, and that the surrounding circumstances show that in the partition the parties purposed to reserve to themselves the fee of the crossroad or lane.

The prevailing opinion concedes.the rule of law "that where a deed states that the starting point or boundary of the land conveyed is “ on the side ” of a road, the inference that the grantors intended to exclude the fee thereof is justified. Thus, in Kings County Fire Ins. Co. v. Stevens (87 N. Y. 287) it was said (p. 292): “In the case before us, the starting point of the description is on the southerly side. of the Walla,bout bridge road,, and the exact point of beginning is fixed by the reference to the lands of Skillman.. The other lines are described by courses and distances, and the third course gives the length of that line in feet to the road, which we think fairly imports that the measurement is to the side of the road,- and the fourth course is along the road, etc., to the place of beginning. We think the roadbed was excluded by the terms of the description, within the cases of Jackson v. Hathaway (15 Johns. 447); English v. Brennan (60 N. Y. 609); White's Bank of Buffalo v. Nichols (64 id. 65). In Jackson v. Hathaway the description was beginning at a certain stake by the side of the road ’ -x- * *. in English v. Brennan * * * the description was: Beginning at the southwesterly corner of Flushing and Clermont avenues * * In White's Bank, etc., v. Nichols * * * the grant * * * describes the granted premises as commencing at the intersection .of the exterior lines of two streets * * In the Nichols case the court said: “ The point thus established is as controlling as any monument would have been and must control the- other parts of the description; all the lines of the granted premises must conform to the starting point thus designated.”

When we examine the descriptions in the deeds • under consideration we find that each refers to a definite point which is by the side of the road.. Thus, in the conveyance to Charlotte Vandenheuvel, the words are: “ Beginning at a stake by the fence on the cross road leading to Harlem fifty links from the southeastern . corner of the fence, thence running north * * *‘ parallel to the boundary fence * * * to lot number five; thence * * * to the eastern boundary of lot number four; thence * * * south * * * ten chains sixty. links to the public road; then * * * along the road * * . * to the place of beginning.” This description is almost identical with that stated in the Stevens Case (supra); for although there the words used are “beginning at a point on the southerly side of the Wallabout bridge road,” and thus the side of the road is mentioned, here the point is by the fence on the crossroad, which fixes it none the less definitely on the side of the road. Here, as there, the third course is a measured distance “to the public road,” and the fourth, “ along the road * * * to the place of beginning.” It follows that the deed did not in terms convey to the center of the lane, but that the north half of the roadway was, by the description of the deed, expressly excluded, and hence the fee thereto did not pass to Charlotte Vandenheuvel. The plaintiff, therefore, acquired no title to the northern half, of the property here in dispute.

The descriptions in the two deeds conveying land on the south side of the road are equally explicit in excluding the roadbed. The land conveyed to Ann Apthorp is described as “beginning at a stake by the fence on the public cross road, the corner of Hr. Jauncey’s land, thence running south; ” and, finally, “to the public road, then * * * west along the public road * * * to the place of beginning.” This deed not only shows the starting point of this land to have been on the side of the road, but it fixes “ the corner of Hr. Jauncey’s land” also at the stake by the side of the road, so that the following description in the Jauncey deed is made clear and certain: “ Beginning at the corner of a field at the junction of the Bloomingdale road with a cross road " * *; thence running along the Bloomingdale road south * * * then * * * east * * ■ * then north * * *; then * * * east # . * * *; then north * * * eight chains ninety-two links; then * * * to the beginning.” Evidently the “eight chains ninety-two links” terminated at the “stake by the fence on the public cross road ” mentioned in the Ann Apthorp deed.

In Holloway v. Delano (139 N. Y. 413) this Jauncey deed was under consideration with respect to rights acquired in the Bloomingdale road thereunder, and Judge Geay, writing the opinion, says: “ We are inclined to the view that the descriptive monuments or starting points for the boundary lines cannot be fixed in the center of the Bloomingdale road without straining too much the language used.” The case was decided, however, upon other grounds. The court was divided, four to three, and one of those who concurred was of the opinion that title to the center of the Bloomingdale road passed under the deed. In that case, however, the Jauncey deed with respect to the Bloomingdale road was not as clear in its meaning as it is with respect to the crossroad or lane, when examinéd in the light of the Ann Apthorp deed. As said in Potter v. Boyce (73 App. Div. 383; affd., 176 N. Y. 551) “ whether or not the fee of an adjacent' street passes by a conveyance of abutting property is a question of intention, and the courts are justified in looking at the situation of the property and the cotemporaneous acts of the parties, including the conveyances they have made of adjoining property, as well as the description contained in the conveyance in question, to determine the intention of the parties making the conveyance.”

With respect to the general situation as showing intention, the map in the statement which precedes the prevailing opinion is suggestive in showing that the parties to the partition purposed to reserve to themselves the fee of the crossroad or lane. Although ■the recitals in the conveyances state the intention to distribute all the estate, the location of the lots was such that there was an object in retaining the fee of the roadbed, and evidently the intention was to distribute all save that included therein. It will be seen from the map that, in addition to the lots of land herein directly involved, which were conveyed in the partition to the Jaunceys, to Ann Apthorp (No. 8) and to Charlotte Vandenheuvel (No. 6), there were other lots numbered 2, 3, 4 and 5, conveyed respectively to Charles, James, Rebecca and Eliza Apthorp; and that lots 2, 3 and 4 abut on the crossroad or lane; whereas lot No. 5, belonging to Eliza Apthorp, is north of lot No. 6, belonging to Charlotte Vandenheuvel. The map' shows a road leading from Eliza Apthorp’s lot past the Vandenheuvel lot to the crossroad or lane; and this road or way, forming a means of access to the lane, was provided for in the deed to Charlotte Vandenheuvel. It was essential to Eliza Apthorp that this right of way should be preserved, and to the other lot owners also it was important that the crossroad should remain always unobstructed.

In view, therefore, of the general situation and the location of the lots, the map in evidence and the descriptions in each of the deeds, which refer to the side and not to the center of the road, I think that the fee of the lane did not pass under the conveyances, and hence that the plaintiff has no title to the property in dispute.

From this conclusion, however, it does not follow that the defend ants have title to the land. That question would turn upon whether the heirs of Williamson or the heirs of Apthorp were the owners. This depends upon whether Williamson, when he gave the deeds, held title in his nwn name or as trustee* The trial court directed the jury to find that he was not the agent or trustee of the heirs of Apthorp; but, in view of all the evidence presented on the other side, there was, I think, in any event, a question of fact which the jury should decide.

For the reasons stated, I dissent and am in favor of reversal of the judgment and a new trial.

Judgment affirmed, with costs.  