89 N.Y.S. 26 | N.Y. App. Div. | 1904
Lead Opinion
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
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
■ 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
• 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
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.
Dissenting Opinion
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
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
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 exam
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
For the reasons stated, I dissent and am in favor of reversal of the judgment and a new trial.
Judgment affirmed, with costs.