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 *608to 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 *609Winkle 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 *610the 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 *611to 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.