Van Winkle v. Winkle

• Decision Date: 06 March 1906
• Citation: 184 N.Y. 193,77 N.E. 33
• Parties: VAN WINKLE v. VAN WINKLE et al
• Court: New York Court of Appeals Court of Appeals

184 N.Y. 193

77 N.E. 33

VAN WINKLE

v.VAN WINKLE et al

Court of Appeals of New York.

March 6, 1906.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Mary S. Van Winkle against Elizabeth M. Van Winkle and others. From a judgment for plaintiff (89 N. Y. Supp. 26,95 App. Div. 605), certain defendants appeal. Affirmed.

Chase, J., dissenting.

Peter A. Hendrick and James A. Deering, for appellants Ruggles and others.

Edward R. Vollmer, for appellants Hamilton and others.

Edward Mitchell, for respondent Mary S. Van Winkle.

David B. Ogden, Henry F. Miller, and William Mitchell, for respondent Elizabeth M. Van Winkle.

HAIGHT, J.

This action was brought for the partition of a parcel of land, which formerly was the roadbed of a public road known as Apthorp's lane or cross-road to Harlem, bounded on the east by the westerly line of Eighth avenue or Central Park West and on the west by a line drawn parallel to the westerly line of Eighth avenue across such public road 248 feet 4 1/2 inches westwardly therefrom. The plaintiff and the defendant Elizabeth M. Van Winkle are sisters, and their grantors are the owners of the lands abutting upon such public highway on either side thereof. The road in question was opened through a farm or tract of land formerly owned by Charles Ward Apthorp prior to his death (which occurred in the year 1797), and extended from the Bloomingdale road to the Harlem commons. It continued to be used as a public road until after the laying out and opening of Ninety-Third and Ninety-Fourth streets on either side of such roadway, after which it was discontinued by an act of the Legislature in the year 1867 (Laws 1867, p. 1748, c. 697) and 1895 (Laws 1895, p. 2037, c. 1006). The defendant appellants claim title to the roadbed as the heirs at law or as the grantees of such heirs of Charles Ward Apthorp, who it is admitted, died seised of the premises in controversy.

The complaint, among other things alleged that the plaintiff and the defendant Elizabeth M. Van Winkle and their predecessors in title had been in the possession of such roadbed for more than 20 years before the commencement of this action, and that after the death of Charles Ward Apthorp one Hugh Williamson became seised and possessed of the whole of said Apthorp farm, including the roadbed to such cross-road, on the 23d day of April, 1799. The answer interposed by the defendants put in issue the allegation of adverse possession by the plaintiff and her co-tenant, and alleged, in substance, that Williamson became such grantee as the agent and trustee of the heirs of Charles Ward Apthorp, deceased, and that the subsequent conveyances made by him were at the request of such heirs and for their use and benefit. Upon these issues formed by the pleadings the case was first moved for trial before Justice Scott and a jury, upon an order settling issues as to the question of adverse possession, and as to whether Williamson took title as agent and trustee of the heirs of Apthorp. The trial resulted in the jury's answering all the questions so ordered to be tried in the negative by direction of the court, and thereupon the case was moved for trial before Justice O'Gorman at Special Term, who first denied a motion to set aside the verdict of the jury, and then, upon a trial of the issues raised by the pleadings, rendered a decision in favor of the plaintiff and her co-tenant, the defendant Elizabeth M. Van Winkle, in the short form, stating as his grounds therefor: (1) That Hugh Williamson, upon a foreclosure sale in 1799, acquired the title to all the premises in question, and that his title was absolute and unqualified; that no conveyance from him to the Apthorp heirs had been proved or could be presumed; that the deeds in which the Apthorp heirs joined were intended only as confirmatory deeds so as to operate by way estoppel against claims that might thereafter be made by them or by their descendants; that if such deeds were held to exclude the roadbed of the cross-road it would follow that the title thereto was in Hugh Williamson or his heirs, and not in the appellant defendants. (2) That the confirmatory deeds by the Apthorp heirs carried the grant in each instance to the center of the road; that the presumption is that the conveyance of land bounded by an existing street or road carries the fee to the center, and in case of ambiguity the construction most favorable to the grantee must be adopted; that the lots in question were sold by reference of a map, and the recital in the confirmatory deeds of a purpose to dispose of the entire estate establishes that the conveyances extended to the center line of the abutting lane; that in none of the descriptions is reference made to the side of the road; the words ‘beginning at a stake by the fence of the cross-road,’ considered with the remainder of the description, did not necessarily indicate an intention to confine the grant to the side of the roadway; that there is nothing in the deeds in question sufficient to overcome the presumption against the grantors' intending to reserve the title to the soil of the highway. The justice, therefore, concluded that the defendants, other than the defendant Van Winkle, had no interest in or title to any part of the premises in question either at law or in equity. Exceptions were filed to this decision only by the defendants Jane E. Holloway and others, appearing by James A. Deering as attorney. Thereupon an interlocutory judgment was entered and commissioners of partition appointed, upon whose report final judgment was entered, from which an appeal was taken to the Appellate Division and subsequently to this court, in which the appellants have given notice of a desire to review the order denying a new trial before the jury, and the interlocutory judgment.

As to the issues that were tried before Justice Scott and a jury, those pertaining to the question of adverse possession were disposed of in favor of the defendant appellants, and those questions, therefore, require no further consideration. As to the questions whether Hugh Williamson, in purchasing the premises upon the foreclosure sale, acted as the agent and trustee of the heirs of Apthorp or disposed of the property at their request and for their use and benefit, we have found no evidence that would justify a verdict of the jury in the affirmative, and, therefore, we consider the verdict of the jury answering the questions in the negative by direction of the court as disposing of those questions. We are thus brought to a consideration of the decision of Justice O'Gorman as made upon the trial at Special Term. As we have seen, it was in short form, so-called, and must, therefore, be given the same force and effect as a verdict of a jury. David Kennedy Corp. v. Kennedy, 165 N. Y. 353, 59 N. E. 133;Cutter v. Gudebrod Bros. Co., 168 N. Y. 512, 61 N. E. 887. The trial court has found that the deed given to Hugh Williamson by the sheriff upon the foreclosuresale in 1799 operated to vest in him the absolute and unqualified title to the premises in question, and that no conveyance by him to the Apthorp heirs had been proved, and that no such conveyance could be presumed. It appears that Apthorp, prior to his death, executed a mortgage upon so much of his farm as was east of the Bloomingdale road to the Marine Society of the city of New York for the sum of $2,500, which mortgage covered three separate parcels, one consisting of about 75 acres, another of 85, and the third of about 50 acres of land; that after the death of Apthorp the Marine Society holding the mortgage instituted an action for the foreclosure of the mortgage in the court of chancery, in which it was determined that there was then owing for principal and interest the sum of $2,826.66; that judgment was entered for foreclosure and sale, and that upon such sale the property was bid in by Hugh Williamson for the sum of £10,300; that that amount was paid over to the sheriff, who executed and delivered to him the deed referred to; that the sheriff, out of such sum, satisfied the claim of the Marine Society, and then, upon the consent of the heirs of Apthorp, paid over the balance to Robert Troop, as administrator of Apthorp's estate. No question is raised by the appellants with reference to these facts, or that Hugh Williamson thereby became vested with the title to the roadbed of the lane or of the lands abutting thereon upon either side.

It is contended, however, that subsequently he reconveyed his interest to the heirs of Apthorp, excepting and reserving only the interests of his two minor children, who were the grandchildren of the decedent and entitled to a one-ninth part of his estate, and that such conveyance was made is apparent from the recitals contained in the deeds subsequently executed by the heirs partitioning among themselves the lands of Apthorp which had not been otherwise sold or disposed of. It appears that in November, 1802, the Apthorp heirs executed conveyances to one another, partitioningamong themselves the lands of the decedent Apthorp remaining undisposed of, and that in such conveyances Hugh Williamson had set off to him one parcel and that he joined in the conveyances of the other parcels to the other heirs of Apthorp. The deeds contained the recital as follows: ‘Whereas, the said party of the first and second parts are the proprietors, as tenants in common of all the real estate whereof Charles Ward Apthorp, late of Bloomingdale in the Seventh Ward of the city and county of New York, esquire, died seized at Bloomingdale aforesaid; and whereas, the said party of the first and second parts as aforesaid as proprietors of the said real estate did, in virtue of a written agreement bearing date the 29th day of May in the year 1801, proceed to make partition of said real estate among themselves; and whereas, upon such partition the lot of land hereinafter particularly described fell to the...