The opinion of the court was delivered by
Bennett, J.This is an action of account at common law, and the important inquiry is,, were these parties tenants in common of *179the growing crops upon the farm let by Smith to Austin, until a severance had been effected 1 The operative part of the contract is, that Smith agrees to let to Austin the farm, commencing the first of April, 1842, and to continue from year to year for the space of five years, or so long as the parties shall agree and be satisfied, after the usual custom of farmers, that is, “the produce to be equally divided between them, in weight and measure.” In Buller’s N. P., p. 85, a manuscript case of Welch v. Hall is cited to sustain the position, that, if a person agree to plow and sow the ground, of .another and give the owner of the soil one half of the crops, the latter receives the same by w.ay of rent, and has no interest in the growing crops, until there shall have been a division. Although this case is cited by Judge Buller as correct láw, yet we think, if such a case was decided, it cannot be sustained. It purports to have been but a u,isi prim case; and it is directly opposed to the case of Hare et al. v. Celey, Cro. Eliz. 143, in which it was held, that the owner of the soil and the occupier were tenants in common of the growing crops, I am not aware, that that case has been questioned in England, and much less overruled.
In this state, in the case of Smith v. Doty, 1 Vt. 37, it was held, that an agreement between the owner .of land and the occupier, that the latter should raise a single crop upon shares, did not ajnount to a lease of the land, and that the parties had a joint interest in the crop, before a severance. In New York and Massachusetts ¿'similar principle has been very fully adopted. Foot et al v. Colvin, 3 Johns. 216. Bradish v. Schenck, 8 Johns. 151. Caswell v. Districh, 15 Wend. 379. Putnam v. Wise, 1 Hill 234. Walker v. Fitts, 24 Pick. 193. Judge Swift, also, in his Digest, treats the owner of the soil and the occupier as haying a joint interest in the crops. 1 Swift’s Dig. 91, 92,
The question then arises, is this contract between Smith and Austin such an one, as to constitute a lease of the land, so as to vest the whole interest in the growing crops in Austin ? It doubtless gave him an interest in the land. He was.not to occupy as the mere servant of the owner ; neither did he occupy upon hire, and to receive a given portion of the crops as a compensation. He had something more than a mere license to enter and cultivate the soil. He had a right to pccupy ■; and the owner could not exclude him, *180while in the performance of his contract; but it may be difficult to define the precise nature and character of his interest. It is, however, we think, quite apparent, that it was not the intention of the par* ties, that this contract should constitute a lease of the land. Clt is not styled a lease, nor executed as such; but is simply called an agreement! There are no technical words in it appropriate to a lease, unless it be the words “ agrees to let.” There are no words reserving any portion of the produce as rent, — but simply that he (Austin) is to take the farm after the usuahcustom, and the produce to be equally divided between the pavtiesj -The construction is to be on the whole instrument; and although the contract might con» tain apt words to make a lease, yet they might be overcome by a contrary intent appearing upon its face. Putnam v. Wise, 1 Hill 246. No obligation rests upon Austin to pay any certain quantity of produce; and the right of Smith to demand any is contingent, and dependent upon what may be raised, be the same more or less. We think the parties could have only contemplated a common interest in the crops.
J am aware, that in most of the cases, where it has been held, that there was a common interest in the crops, before a severance, the letting has been for a single crop.; and it has been sometimes supposed,-that if the letting were for more than a single crop, a different result would follow- In the case of Putnam v. Wise, Judge Cowen remarks, that it is difficult to see, why the same form of contract would not continue the relation of tenants in common for the whole time, although the letting be for two or more years. In Rich v. Penfield, 1 Wend. 380, Judge Sutherland was inclined tQ treat the owner and occupant of a mill, which had been run several years upon shares, as tenants in common. If the intention of the parties be doubtful, the shortness of the time might be resorted to, as furnishing some evidence, that the parties intended to hold thg crops in common ; but how the circumstance, that the letting was for more than for a single crop, can overcome or control a relation, manifestly created by the contract of the parties, is more than I can understand. In Walker v. Fitts, 24 Pick. 193, the defendant was to manage and carry on the farm for one season. In Caswell v. Districh, 15 Wend. 379, the letting was for one year. In Putnam v. Wise, 1 Hill 234, the letting was for one year; and if the occupant *181performed his agreement in a manner satisfactory to the other party, then for another year, upon the same terms; and in that case the agreement was under seal and contained the technical words, “lease and to farm let,” and also a covenant to “ yield, pay, and give unto the lessor, one half of all the grain,” &c. In all those cases jt was held, that the owners of the soil and the occupants had a common interest in the crops, before severance. In the case be» fore us Austin was to occupy from year to year for five years, or so long as the parties should agree and he satisfied. By the terms of this contract either party had a right, at any time, to put an end to it, upon giving one month’s notice. The rights of Austin under this contract are not those of an occupant for a certain term, or even for a single crop, or one year. Indeed, he is only a quasi oc-. cupant at will, so long as the parties shah agree and he satisfied, not exceeding five years.
The case of Stewart v. Doughty, 9 Johns. 108, has been pressed upon the court, by the defendant’s counsel, as decisive of the case at bar. .But that case is clearly distinguishable from this. The lease contained the clearest words of a present demise. The lessee Covenanted to render, yield and pay to the lessof a given proportion of the produce of the farm ; arjd the lease declared, that the lessor had rented and hired the farm, and that he had given the lessee the quiet and uninterrupted possession of the-same,' and that he was to be suffered to possess and enjoy it. The court, it is true, held in that case, that what was to be rendered by the tenant was a payment of rent in kind, and that the tenant was a lessee of the premises. This case, however, must be considerably shaken, if not in effect pverruled, in New York, by the recent case of Putnam v. Wise, 1 Hill 234. In our own Reports, the case of the Adm’r of Nye v. Manwell, 14 Vt. 14, is much like the case of Stewart v. Doughty, The lease contained all the words of a present demise, and an express covenant, on the part of the lessee, to deliver to the lessor his proportion of the produce.
The case of Hurd v. Darling et al., 16 Vt. 377, has a more .direct bearing upon the case at bar. In the report of th,e case in the 16th Vt., the agreement of the parties is not set out with particularity; but in the report of the case in the 14th Vt. 214, between the same parties, it is sgt opt in fulj. Although this court *182held in that case, that the contract was a lease of the land, and that the whole interest in the crops was in the lessee, until a severance, yet, when we look to all the provisions of the contract, and see that Hurd was to stock the farm with cows, with a yoke of young oxen, and a span of horses, and was to furnish a portion of the farming Utensils, and a moiety of those necessary, for the dairy, and one half of the seed grain, and that each was to pay one half of the taxes, except the highway tax, and that the stock was to be fed from the mass of the produce of the farm, before there should be any severance, and the increase and profits of the stock to be divided equally between the parties, it may well be questioned, whether it would not have been more in accordance with the intention of the parties, to have held in that case, that it was but the ordinary letting of the farm upon shares, and that the parties had a common interest in its productions, before a severance. It is not inconsistent with such a position, that Darling should have taken upon himself the labor of a severance of the produce, and a delivery of one moiety to Hurd, up* on the farm ; and it appears to. me, that such a provision should not have a controlling influence upon the character of the contract. In this particular, however, the case is distinguishable from the one before us; and, at all events, we think it should not control it.
If, then, the original parties to this contract would have been tenants in common of the produce of the farm before severance, the question arises, how do the parties to this suit stand ? Austin, on the eighteenth of July, 1843, conveyed, by quitclaim deed, all his interest in the hay and other crops, standing and growing upon the farm, to the present plaintiffs. This was duly acknowledged, and was recorded on the same day by the defendant, who was then town clerk. The position, that growing crops are a chattel interest and assignable, is supported by abundant authority; and, indeed, it has not been questioned. Nothing farther was necessary to be done by the plaintiffs, to complete their title. All the possession of the crops had been taken, of which the nature of the property would admit; and this is all, that can be required, even against creditors. As Austin, then, became a tenant in common with the defendant, by the terms of the contract; his assignees stand in his place, and must also be tenants in common with the defendant, by force of the assignment; and tbp action of account was an appropriate remedy. *183It has been urged in argument, that, though this should be so, yet the effect of the attachment of the property by the defendant, as the property of Austin, and the subsequent sale of a moiety upon the execution, would be, to dissolve such tenancy in common; but it can have no such effect. An obvious reason is, that, the assignment to the plaintiffs being prior to the attachment, Austin at that time had no attachable interest in the crops, and the sale would in na way affect the right of these plaintiffs to them.
Under the issue, upon the plea alleging the want of a special demand upon the defendant to render his account, before action brought, the only question is, was there any evidence tending to prove the plea ? The evidence was, that the plaintiffs told Smith, that, if he did not return the property, or pay for it, they should sue him. Although this is a demand upon Smith to account for the whole property, and not strictly to account, as a tenant in common, with the plaintiffs, yet we think it was sufficient, upon the principle, that the greater comprehends the less, — and especially in a case like this, where the defendant denied all right whatever in the plaintiffs to .the property.
We come, then, to the conclusion, that there Was no error in the county court, in finding the issues for the plaintiffs on the special pleas in bar, arid in rendering judgment to account.
Upon the coming in of the auditor’s report both parties excepted to his decision upon the single item of the defendant’s book account, for the keeping of the plaintiffs’ sheep at hay; and each has excepted to the decision of the County court, in relation’to that one' item. The auditor, it being a common law action of account, had! no authority, under the rule, to audit the book accounts of-the parties, either on the one side, or the other. But it does not appear,that any objection was made before the auditor to this course of proceeding ; - and the mutual accounts of the parties were brought in and adjusted. No objection was taken on this ground in the' county court, and none has been taken in the argument in this court.We must then consider, that the auditor, in going beyond the authority delegated to him under the rule, and taking upon himself the adjustment of the proper book accounts of these parties, acted by their express consent, and in the capacity of arbitrator, or referee; and that both parties should and must be satisfied with the proceed* *184ings of the auditor in that part of the case. There may be considerable difficulty in sustaining the decision of the auditor, in relation to that item, upon strict legal ground; but it does not appear, that he intended to put it upon such ground. All that he says is, that, Under the circumstances, (having detailed them,) .he decided, that the plantiffs were bound to allow the defendant what he supposed the contract price of keeping the sheep amounted to, that is, three cents for each sheep per week. He might have supposed chancefy would have relived the defendant from the effects of his mistake in making the contract, and that it was not equitable, that the defendant should have more than what he supposed he was to have by the contract, when he made it; although, when he found out his mistake, he gave the plaintiffs notice, that, if they Continued to feed his hay to .their sheep, they must pay him what the hay was reasonably worth.
The result, then, is, the judgment of the county court is affirmed.