The opinion of the court was delivered by
Wilson, J.
The orators seek to charge the whole land with the payment of the rent due to them as the assignees and representatives of Gideon Spencer, and whether they are entitled to the relief sought for depends upon the original rights of Gideon and Stephen Spencer as tenants in common pf the land sought to be charged, and upon the legal effect of the several conveyances under which these parties respectively claim title to the premises. Gideon and Stephen Spencer were, at the date of the lease to Ward, tenants in common of the land conveyed. ‘‘The only unity required between tenants in common is that of possession, for one tenant may hold his part in fee simple, the other in tail or for life ; so that there is no unity of interest. One may hold by descent, the other by purchase ; so that there is no unity of title. One estate may have been vested fifty years, the other but yesterday; so that there is no unity of time,” *267Litt. § 292; 1 Inst. 190; Cr. Dig. B. 2 tit. 20; 2 Black. Com. 191. “Joint tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession.” Black. Com. 146. And among the incidents attending a joint tenancy is the doctrine or right of survivorship which does not exist in tenancy in common. The ancient English law was apt in its constructions of conveyances to favor joint tenancy rather than tenancy in common ; but joint tenancies, lor a long period of time, have been and still are regarded with so little favor in England and in this country, both in courts of law and equity, that whenever the expressions will import an intention in favor of a tenancy in common, such effect will be given to them. Our legislature, for the purpose of protecting the several interests of persons in the same land, and guarding them against the incidents attending a joint tenancy and the injustice which might result therefrom, has declared that all conveyances and devises of lands made to two or more persons (except conveyances and devises made in trust, or made to husband and wife) shall be construed to create estates in common, and not in joint tenancy, unless it shall be expressed therein that the grantees or devisees shall take the lands jointly, or as joint tenants, or in joint tenancy, or to them and the survivor of them, or unless it shall manifestly appear from the tenor of the instrument that it was intended to create an estate in joint tenancy. G. S., ch. 64, §§ 2 and 3. The reason of the rule which protects the title and several interests of tenants in common, while they jointly possess the estate, each under his own absolute title to a moiety of the lands, may exist in case of a joint conveyance by them of part of tbeir interest in the premises, and upon principle the rule should extend to and protect their reserved rights in the estate under such conveyance, and preserve them in severalty, so long as such relation exists, either in respect to the proceeds of the estate, or in respect to their reserved rights in the estate, unless the conveyance contain some express provision to the contrary. The principal incidents then attending a tenancy in common being such as merely arise from the unity of possession, it follows that one tenant in common may convey his estate without the other, and resume it at any time, or they may unite in a common conveyance of their respective *268estates, without necessarily intermingling or prejudicing their separate rights or interests.
The two Spencers, holding by separate and independent titles, in 1830, by their joint deed, made the lease to Ward, reserving an annual rent of $800. The lease among other stipulations contained a clause of re-entry in case of non-payment of the rent. The rent was made payable in gross, but it belonged to each separately, in equal moieties, as tenants in common, in the same right as that in which they had held the land. By the terms of the lease neither Spencer released to the other any right to or interest in his moiety of the estate, nor in his security upon such moiety for his share of the rent. The joint lease of the Spencers to Ward did not in any manner affect their reserved rights as tenants in common. They were the same as if the lease to Ward had been made by two separate deeds of the Spencers, each of his own moiety, reserving rent, and a right of re-entry for condition broken. The lease gave neither of them any estate in, or control over the title or part of the other. Their reserved estate in the land was, in effect, several, their right to the rent several, and their right of re-entry for condition broken was several. And “where a person enters for condition broken the estate becomes void ab initio, and the person who enters is again seized of his original estate in the same manner as if he had never conveyed it away.” Lit. § 325; 1 Inst. 202, a; Cruise’s Dig. B. 2, tit. Condition, Stephen Spencer in 1833 conveyed his interest in the premises to Apollos Austin. He conveyed to Austin his moiety of the rent due and growing due, and his moiety of the land charged only with the payment of his part of the rent; by which Austin succeeded to 'the title and rights of Stephen Spencer which were co-extensive with the rights of Gideon Spencer. In 1836 Ward assigned his interest in one undivided moiety of the same land to Austin, by which Austin became seized of all the right and title to the moiety owned by Stephen Spencer at the time the lease was made by the Spencers to Ward. It is urged by the orators that the assignment from the lessor Stephen Spencer of one-half of the lessor’s interest in the premises, and the conveyance from Ward of one-half of the lessee’s interest, operated as a merger of these estates in Apollos Austin and vested in him the title to one undivided half, *269in fee. It is true that those conveyances vested in Apollos Austin the title to one undivided half of the premises, but it did nol necessarily follow that the conveyances operated as a merger of those estates in Austin, so far as to extinguish his rights under the lease. The question is upon the intention of Austin, in whom the interests were united ; and it appears to us that there could have been no intention to create a merger of the estates. In Walker, Smith & Co. v. Barker & Fletcher, 26 Vt. 710" court="Vt." date_filed="1854-09-15" href="https://app.midpage.ai/document/walker-smith--co-v-baxter-6575362?utm_source=webapp" opinion_id="6575362">26 Vt. 710, it was held that the estates when united will not be treated as merged, so as to operate as payment or extinguishment of the debt, unless such was the evident intention of the parties, nor will that result follow if there exists some beneficial interest tliat should be protected, and where it is for the benefit of the party to keep the legal and equitable interests separate and distinct. And in the case of Forbes v. Moffat, 18 Vesey, 384, the rule was recognized that the whole question rests upon an expressed or presumed intention of the parties, and that the debt will be treated as paid and satisfied when it is evident that th.e estates were united with a view to satisfy the debt, otherwise it will have no such effect; and such is the rule both at law and in equity. Under the circumstances we think the case stands the same as if Stephen Spencer had become the assignee of Ward. The two estates, viz: that of Stephen Spencer reserved in the lease, and that of Ward’s in Stephen Spencer’s moiety of the land, were united in Apollos Austin and he became the owner of the moiety of Stephen Spencer and a tenant in common with Gideon Spencer, with all the right of property vested in him that was vested in Stephen Spencer at the date of the lease. The right of Austin to the rent in arrear was not satisfied by the union of the two estates ; he still had a right to enjoy his moiety of the land, as well for the rent in arrear as for the accruing rent. Gideon Spencer, at the time of the execution of the lease by him and his co-tenant Stephen Spencer to Ward, had no title to or interest in Stephen Spencer’s moiety of the premises, he derived none from the joint lease to Ward, nor from the subsequent assignment and conveyance by which Austin became the owner of Stephen Spencer’s moiety of the premises ; and it is clear that Austin is entitled to the free use and profits of his moiety of the lands, and to an equal lien and charge for the Stephen Spencer rents, upon the property, in *270the same manner and to the same extent as the orators. We are entiiely satisfied with the result, for it appears to be in accordance with the intention and understanding of the parties as disch sed by the testimony in the case. It is not reasonable to suppose that the Spencers, by uniting in the execution of the lease to Ward, intended to affect their separate rights in the estate, or the rights of their grantees, nor will equity allow the orators to extend their security over the whole land when so manifestly contrary to the intention of the parties.
The decree of the chancellor, by which the orators’ bill was dismissed, is affirmed with costs to the defendants.
The defendants by their cross-bill in this case seek affirmative relief against White and Barker as well as the orators, and we think defendants are entitled to relief in accordance with the prayer of their bill, and the case is remanded to the court of chancery with instructions that a decree be entered for the defendants in accordance with the views of this court above expressed.