I shall agree with Judge HAIGHT'S conclusion that this judgment should be affirmed. I think it to be very clear that the claim of the appellants to be tenants in common with the Van Winkles of the premises in controversy is without adequate support in the facts and that it is beyond the rule of presumption. Williamson having acquired title under the sheriff's deed, in 1799, either his subsequent conveyances carried to his grantees the fee of the soil in the lane, or it remained in him and his heirs. The argument that a deed should be presumed from him to the Apthorp heirs is untenable. I do not understand that a conveyance will be presumed to create a title, but, only, to support a just title and to prevent its defeat. As TINDAL, C.J., stated the rule inDoe v. Cooke, (6 Bing. 174, 179), "no case can be put in which any presumption has been made, except where a title has *Page 210 been shown by the party, who calls for the presumption, good in substance, but wanting some collateral matter, necessary to make it complete in point of form." The only case, as the same judge pointed out, would be where a possession had been shown, consistent with the fact to be presumed.
The question whether the description in the deeds suffices to convey the roadbed of the lane is not without its difficulty. In such cases, in seeking for the intention of a grantor, a certain latitude of inference is allowed, based upon the circumstances, as well as upon the language employed. We may consider the general facts, in connection with the legal presumption which obtains, in the absence of words necessarily excluding its operation, that a highway, or street, when referred to as a boundary, is to be regarded as a line and is, therefore, included to its center. There is nothing in this case to rebut the presumption against the grantor's intending to reserve to himself the title to the soil of this cross road, or lane, and there is much to favor it, as Judge HAIGHT has pointed out. Whether, as in the two deeds to Charlotte Vandenhuvel and Ann Apthorp, placing the point of beginning "at a stake by the fence" shall be controlling upon the question of the exclusion, or inclusion, of the bed of the boundary road is a question which I will concede to be dependent upon, and to be determined by, the running of the subsequent courses. The stake, as a monument for the survey, could not well be in the roadway. If there had been the intention to reserve the fee in the soil of the road, it would have been natural to place the point of beginning in the side of the road. The subsequent courses are run to, or along, the road and the conveyance is by reference to the Taylor map. These considerations, together with the further one of the intention of the Apthorp heirs to partition what there was of their estate, incline me to agree with the construction given by Judge HAIGHT.
The third deed of the Jauncey parcel underlies the title to a very small and irregular part, or gore, of the premises, varying from about one foot to one foot and a half in width. In view of our decision in the case of Holloway v. Delano, *Page 211 (139 N Y at p. 412), it is difficult to hold, without conflict, that the starting point of the description, "at the corner of the field at the junction of the Bloomingdale Road with the Cross Road that leads to Harlem," is not in the side of the road. It may be that the appellants have failed upon the trial to connect their claim of title with that derived by the Van Winkles, as the respondents argue; but I shall place my vote, upon this branch of the case, upon the proposition that the appellants can have no interest in this gore of land. The title to it, if not parted with in the Jauncey deed, remained in Hugh Williamson, who is shown to have been the owner of the whole Apthorp farm under the sheriff's deed, in April, 1799. If in August, following, he conveyed to the Jaunceys by a deed, in which the Apthorp heirs joined with him as grantors, his absolute title is not negatived by that circumstance. No conveyance from him to the Apthorps was shown and the only presumption permissible is that they were joined to quiet all questions of title. The Apthorps, clearly, as I think, had no interest in that portion of the lane and, hence, none could be derived by the appellants upon which to predicate their claim to a tenancy in common with the Van Winkles.
EDWARD T. BARTLETT, VANN and WILLARD BARTLETT, JJ., concur with HAIGHT, J.; GRAY, J. (in memorandum), concurs in result; CHASE, J., dissents on opinion below; CULLEN, Ch., J., absent.
Judgment affirmed.