2. Estates in Common.

Spencer V. Austin

3S Vermont, 258. - 1865.

Bill in chancery to ascertain the interests of the several parties in the premises in question. In 1830 Gideon and Stephen Spencer, owning the lands in common, by joint lease demised the lands to one Ward, reserving an annual rent of $800. The lease contained a clause for re-entry in case of non-payment of rent. In 1833 Stephen Spencer transferred to Apollos Austin all his right in the lands and rents. In 1836 Ward transferred his rights under the lease in one undivided moiety of the same land to Austin. Gideon Spencer died in 1847.

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 of 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." Litt., § 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, for 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 or 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., c. 64, §§ 2 and 3.1 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 their 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 estates, 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 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-etry 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 seised 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 seised 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, in fee. It is true that those conveyances vested in Apollos Austin the title to one undivided half of the premises, but it did not 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 intent 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 and Fletcher, 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 that 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 the 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