
    Maurice Jacobs, Appellant, v. Joel Fowler and Frederick W. Dawson, Respondents.
    Second Department,
    December 3, 1909.
    Beal property—vendor and purchaser — marketable title—easement— evidence — death — intestacy — deed — covenants — subsequently acquired title of grantors inures to benefit of succeeding owners.
    An casement giving an adjoining owner the right to use a cesspool built on the rear and near the south line of a lot .creates no incumbrance upon the north part of the lot upon which neither the cesspool nor its connections are located.
    Where it appears that a man fifty years of age, of somewhat dissipated habits, was sent a sum each week by his family for his support; that the last letter received from him expressed a desire' to enter a hospital; that letters thereafter sent by his family remained unanswered; that the postmaster at the place of his residence, being communicated with, returned the letters and said that the man had died, and it further appears that since 1884 nothing has been heard of him by his family, and the fact that he was unmarried is established by general reputation in the family, a finding that he died intestate, unmarried and without issue is justified by'the evidence.
    
      In the absence of evidence to the contrary, the presumption is that the deceased died intestate. ■
    Where a deed contains express covenants of warranty or quiet enjoyment, if operates as-an estoppel against a claim of the grantor or his privies to a subsequently-acquired estate in the lands conveyed.
    As such covenants run with the land, and the rights of action ón them' are assignable, a conveyance of the land by bargain and sale or even by quitclaim deed, operates to transfer to the grantee the rights given by covenants in former deeds.
    Where, therefore, the grantors of certain land, who conveyed by warranty deed, subsequently acquired all the title, if any, of a person formerly having a claim thereto and their covenants of quiet possession and warranty have not been broken, the title, if any, acquired by them inure» to the benefit not only of their immediate grantee, but of each subsequent grantee. The title of present owners is not rendered unmarketable by reason of such subsequently-acquired title, although there is one deed which contains no warranties in the chain of title.
    Appeal by the plaintiff, Maurice Jacobs, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 30th day of October, 1908, upon the decision of the court rendered after a, trial at the Queens County Special Term.
    
      John W. Magee, for the appellant.
    
      Rawdon W. Kellogg, for the respondents.
   Burr, J.:

Plaintiff’s right to recover depends upon whether the title which the defendants offered to convey to him on the 14th day of April, 1907, was a marketable one. Two objections are urged against it. The first is based upon the claim that the premises are subject to an easement in favor of the adjoining, property. The said premises consists of the northerly twenty feet of a lot known as lot 109 on a map entitled Map of Morris Park,” etc., and the southerly twenty feet of lot 110 on the same map. In 1903 H. Florence Hackett, who then claimed to be the owner of said lot 109, conveyed the same, together with lots 106, 107 and 108 on the said map, to Mary G. O’Hara and Begin a O’Hara. In this deed the grantor reserved to herself, her heirs and assigns “ an easement * * * for the use of two cesspools built on or about the rear line of said lots numbers 109 and 108.” The trial court has found, and upon evidence which is quite sufficient, that neither of these cesspools was located upon that part of lot 109 which was to be conveyed to the plaintiff. If it be conceded that the portion of lot 109 upon which the cesspool and its connections are situated is subject to an easement in favor of the owner of adjoining properties, such easement creates no incumbrance upon that portion of the lot which the plaintiff agreed to purchase. The second objection is based upon the claim that there is an outstanding interest in said land in favor of Jeremiah Watson Briggs or his heirs which will not be conveyed by the defendants’ deed. In 1876 the property belonged to one Jeremiah Briggs, who then died leaving him surviving his widow, Jane It. Briggs, and six children, Joseph L. Briggs, John S. Briggs, Mary R. Briggs, George S. Briggs, Jeremiah Watson Briggs and Mina H. Fowler. He left a will by which, in the residuary clause thereof, he devised the premises in question. We might hesitate to follow the learned Special Term in holding that under said will Jeremiah Watson Briggs took no interest in the land in question or that there was an equitable conversion thereof. It is not necessary to pass upon that question in our view of the case. In the year 1881 an action was brought for the partition of the said land, in which all- of the persons claiming tinder the said will, including the said Jeremiah Watson Briggs, were made parties. If we concede — which we do not concede — that there was a jurisdictional defect in connection with the service of the summons upon the said Jeremiah Watson Briggs, so that whatever interest he had in the said premises was not cut off by the judgment entered therein and the sale had in pursuance of such judgment, we still think that the title is marketable. The trial court found that the said Jeremiah Watson Briggs died intestate, unmarried and without issue after the said sale in partition, and on or about the 24th day of September, 1884. We think that there was abundant evidence to sustain this finding. It appeared that he was born in the year 1834. It appeared that he was a man of somewhat dissipated habits, and at the time of his father’s death in 1876 he was an inmate of the Inebriate Asylum at Binghamton, N. Y. Subsequently, and for some time prior to the 24th of. September, 1884, he had been residing in the South. At the time of the commence-merit of the partition suit he resided in Florida. In the. summer of 1884 he was at Savannah, Ga. Letters were frequently received from him, dated at that placé, the last one of which, dated on the thirtieth of August, expressed a desire that he could enter a hos- . pital somewhere. His family were in the habit almost weekly of sending him a small suni .for his personal use, and it would appear that he was largely dependent upon that for his support, as he stated in his letters that he could get nó employment:' About the twenty^ fourth óf September one of his brothers wrote to the postmaster of Savannah,- stating that he had weekly sent him letters and had received no reply, and asking if the letters had' been delivered. Three letters were returned by the postmaster to the writer, with a statement that they had not been called for, and that the person to whom they, were addressed was dead and buried. Since then nothing has been heard from him by any member of his family. It is true that there is no positive evidence from any one who was present at his funeral or even saw; his body after death. But the fact of death must often be proved by evidence of a different character and largely hearsay. The fact that he was unmarried is likewise established by general reputation, in the family, and in the absence' of evidence to the contrary the presumption would be that he died intestate. If he had any interest, therefore, in the premises in question, which was not cut off by the judgment and sale in partition, it descended to his mother for her life, with remainder to his then living brothers and. sisters. These were Mary It. Briggs, Nina H. Fowler and.. George S'. Briggs. Ilis brothers John S. Briggs and Joseph' L. Briggs had previously died, the former before the judgment in. partition was entered, and the latter subsequently thereto, but intestate, unmarried and without issue. Jane it. Briggs, his mother, died February 28, 1889. In March, 1907, George S. Briggs and his wife by a quitclaim deed conveyed to Mary E. Briggs and Nina II. Fowler all of their right, title and interest of, in and to any and all real estate ,of which Jeremiah, Watson Briggs had died seized, and which did not specifically appear of record to have been disposed of by him ■ during his lifetime. It does not appear that there was any record evidence of the premises in question having been so disposed. of. On the sale in partition the premises were purchased by Jane E. Briggs, the widow of Jeremiah Briggs, Joseph L. Briggs, Mary B. Briggs and Nina H. Fowler. Subsequently thereto, and on the 30th of January, 1883, they conveyed the said premises, by a full covenant warranty deed, to one John A. Bowman. , They were subsequently conveyed, by various mesne conveyances, until the title thereto was vested in the defendants in this action. Each of these conveyances contained full covenants and a warranty, with one exception. That deed was a bargain and sale deed'. The rule is well settled in this State that where a deed contains express covenants of warranty or quiet enjoyment, it operates as an estoppel against a claim of the grantor or his privies to a subsequently acquired estate in the lands therein described. (House v. McCormick, 57 N. Y. 310; Sweet v. Green, 1 Paige, 473 ; Kellogg v. Wood, 4 id. 578, 592.) It is claimed, however, by the appellant that inasmuch as in the chain of title through which the defendants claim to be the owners of the premises there is one deed which does not contain covenants of warranty, this rule does not apply. We think the contention is not well made. Before it is broken a covenant of quiet possession or of warranty runs with the land. These covenants and the right of action upon them are assignable, and a conveyance of land by a bargain and sale, or even a quitclaim deed containing no covenants, operates to transfer such rights to the grantee named therein. (Beddoe's Executor v. Wadsworth, 21 Wend. 120; Hunt v. Amidon, 4 Hill, 345; Jenks v. Quinn, 137 N. Y. 223, 230; Thomas v. Bland, 91 Ky. 1.) As was said in the last case: “A covenant of warranty of title runs with the land, to which the vendee looks as security against any defect in the title, and which is transmitted to each successive purchaser; and the fact that a purchaser with this covenant sells the land to another person without liis covenant of warranty does not restrict the latter’s right, so Ear as the previous warranty is concerned, to his immediate vendor. If the immediate vendor-has a covenant of warranty, as it runs with the land, it is included in the sale of his title, notwithstanding the fact that he declines to warrant the title thus conveyed. This covenant of warranty is not conveyed by a succeeding covenant of warranty, but by the words of conveyance, and any words that convey the title convey the warranty that the vendor holds, because, as said, it runs with the land, and is transmitted by the conveyance.” Inasmuch, therefore, as Mary B. Briggs and Nina H. Fowler have acquired all the title, if any, of Jeremiah Watson Briggs which was not cut' off by the judgment in partition and the sale had thereunder, and inasmuch as they originally conveyed the land with covenants of quiet possession and of warranty, which covenants have not been''broken by the eviction of persons claiming under them through a paramount title, the title subsequently acquired by them will inure to the benefit not only of their immediate grantee but of each subsequent'grantee of the said- premises, arid, they will be estopped from asserting any claim by reason of such after-acquired title.

It follows, therefore, that the deed tendered by the defendants to the plaintiff w;as sufficient to convey to him a good and marketable title to the premises described in it, and the judgment appealed from should be affirmed, with costs.

Hirsohberg, P. J., Woodward, Eioh and Miller, J.J., concurred.

Final judgment affirmed, with costs.  