By the Court.
ElaNde.au, J.This case was here before *430at the July Term, 1862, upon demurrer to the complaint. See 7 M. I.Í., 203. The questions now presented are, however, entirely different. The first point which we will determine is, in what capacity did Leguire hold that part of the house which he sublet to the Defendants for a school-room? Was it as tenant in common with the Plaintiff, or merely as tenant at will, or did he hold it in his exclusive right as tenant of the Plaintiff for one year? We gather from the pleadings and testimony, that the Plaintiff owned a tract of one hundred and twenty acres of land, upon which there had been fifty-five acres under cultivation, and also upon which was situated the house in question. The witness, Leguire, most positively swears that he rented forty acres^of the cultivated land, for one year, from the 1st of April, 1860, for which he was to cultivate the same in small grain, furnish all the seed, and give the Plaintiff one-third of the grain. He was also to have the house for the same term to live in, and a garden spot of half an acre, the products of which were to be exclusively his own-The particular location of the bouse and garden, whether they were upon the forty acres or not, does not appear, but the inference would be that they were not, from the particular stipulations which were made concerning them. There was no rent specified for the house and garden distinct from the portion of grain which the Plaintiff was to receive for the use of the forty acres of land. The contract was an entire one; and we think there is no doubt that the consideration was ample to sustain it in all its features.
The only testimony on the subject of the leasing, aside from that of the witness Leguire, is that of the Plaintiff’s agent, Mr. Hall. He differs from Leguire materially, only in regard to the stipulations concerning the house, about which he says that Leguire was to have the room where the school was kept to store his wheat in, the bedroom to store his oats in, and the room in the frame part and the pantry, for him to live in, and Gould was to have all the other parts of the building. This witness fixes no time in his testimony for the duration of the tenancy. But the Defendant read in evidence a former pleading, verified by this witness, in which he had sworn that the lease was for one year.
*431It will be seen from this evidence that the witnesses agree that Leguire was to have the exclusive enjoyment of the room in which the school was kept, although Yale limits his use of it to the storing of grain. Supposing the theory of the Plaintiff in regard to the character of Leguire’s occupancy of the forty acres of farm land to be true, and that he was but a tenant in common with the Plaintiff, of the crop, the possession of the land being in the Plaintiff, it does not follow that this feature would attach itself to the house, about which other and distinct stipulations were made; Leguire insists that it was exclusively his for one year, and Yale concedes that it was particularly divided between them, Leguire having the exclusive use of certain parts, and the Plaintiff sole control of the balance. The school room being in Leguire’s part, according to both. The idea of a tenancy in common, precludes the possibility of a distinct and separate possession by the tenants of any part of the subject matter of the tenancy, and vice versa. “ Tenants in common are such as hold by sevei’al and distinct titles, but by unity of possession ; because none knoweth his own severally, and therefore they all occupy promiscuously.” 2 Blade. Com., 191. Nor is this view of Leguire’s tenancy of the house, affected by the fact that his enjoyment of it depended uppn his fulfillment of a contract which made him tenant in common of another subject matter with his landlord. Almost every lease depends upon some condition, and why not the cultivation of land and payment of part of the produce as well as any other ? The jury were fully justified, from all the evidence, to find that the Plaintiff had leased to Leguire that part of the house in which the school was kept for the term of one year, and we could not interfere with their verdict had they adopted the testimony of Leguire, to the exclusion of that of the witness Yale. Leguire was, therefore, a tenant for years of that part of the house which he sublet for a school room. See 2 Black. Corns., 140.
A tenant for years “ may assign or grant over his whole interest, unless restrained by covenant not to assign without leave of the lessor. He may underlet for any fewer or less number of years than he himself holds.” 4 Kent's Coms., 96.
*432The jury, in rendering a general verdict for the Defendant negatived the issue of negligence or carelessness on its part, without which there could be no recovery, supposing the Defendant rightfully in possession.
We can see no error in the charge of the Court. The Defendant was in possession by good right, as we have shown, as tenant of Leguire, and the issue of carelessness is found in its favor.
The judgment must be affirmed.