The opinion of the Court was drawn up by
Sheplev J.The petitioners claim to be the owners as tenants in common of a moiety of a lot of land in the city of *416Bangor, upon which two dwellinghouses adjoining each other have been erected, and to have their share set off for their separate enjoyment.
The respondent denies their seizin as tenants in common. The question presented is, whether they have, by the testimony introduced, established any title as tenants in common.
The respondent shows, that he is the owner of an undivided moiety of the premises in fee, having derived his title from a deed of conveyance in mortgage, made on April 1, 1833, by John McLaflin, to Micajah Dr ink water, who made an entry to foreclose the mortgage, on January 19, 1837, by virtue of a judgment recovered at law, and assigned the mortgage to the respondent on October 4, 1839. Stephen Goodhue, the owner of the other moiety, and John McLaflin, the mortgager, attempted to make a partition of the premises by deeds of release, mutually executed and delivered, by which McLaflin released to Goodhue his interest in the southerly half, and Goodhue released to McLaflin his interest in the northerly half of the premises on April 3, 1833. On May 3, 1834, Goodhue conveyed' by metes and bounds the southerly half to Albert Baker, with covenants of warranty. The petitioners, having recovered judgment against Baker in July, 1844, by virtue of an execution issued thereon, caused a levy to be duly made and recorded upon the southerly half of the premises, by metes and bounds. By this levy and by the statute then in force, they obtained as good a title to the southerly half as their debtor, Baker, had therein.
Whatever effect the deeds of release made between Goodhue and McLaflin may have, as it respects the rights of others, they can have no effect upon the rights of the respondent. With respect to him the conveyance made by Goodhue to Baker, is but the conveyance of a tenant in common attempting to convey by metes and bounds, a portion of the common estate. Such a conveyance cannot impair or vary the rights of a co-tenant. The grantor, however, had some title to the premises conveyed; and his conveyance would not necessarily be inoperative upon his own rights or the rights of others.
*417The law will give effect to that conveyance so far, as it may do so consistently with a preservation of the entire rights of the co-tenant and no further. It may prove to be effectual to convey the title of the grantor to his grantee or it may not. That must depend upon a fact to bo yet ascertained, whether the estate so conveyed by metes and bounds, shall upon partition of the premises be assigned to the right of the grantor or his assignee. Upon so much of the estate, as may be hereafter thus assigned, that conveyance embracing it, may operate and convey the title of the grantor to the grantee. If no part should be thus assigned, it will prove to be wholly inoperative. Such a conveyance of a tenant in common, cannot in any event operate contrary to the expressed declarations and intentions of the parties, to convey an estate in common instead of an estate in severalty. While the law for the purpose of making a deed operative will give it such a construction, that it may. if possible, convey by any legal mode of conveyance the estate intended to be conveyed, it will not permit such a construction, as would convey an estate of a different kind or description from that intended to be conveyed.
Neither the petitioners nor their debtor, Baker, acquired any title in common to an undivided portion of the premises. As the respondent exhibits no title to any more than an undivided moiety of the premises, that share may hereafter be assigned to him so as to leave the southerly half or most of it to be held under the title derived from Goodhue. If, upon a petition for partition, the southerly half should be assigned to the respondent, Goodhue might be subjected to an entire loss of his interest in the premises by the effect of his covenants of warranty, contained in his deed to Baker and by his deed of release to McLaflin.
It is not therefore probable, that a court of justice would accept and ratify proceedings in partition, that would have such an effect, if the entire rights of the respondent might be secured to him by an assignment of his share from the northerly portion of the premises. Should partition be hereafter made, by which the share of the respondent should be set off *418from the northerly part of the premises, the deed from Good-hue to Baker, and the levy made by the petitioners upon the estate of Baker, would be operative and effectual to convey the remainder to them. For the levy made by Stover on an undivided portion of the premises, as the estate of Baker, could not prevail against their title, because their attachment was made before that of Stover, and also because Baker, by his conveyance from Goodhue, did not acquire any title as a tenant in common to an undivided portion of the premises, and the levy of Stover was made upon an undivided portion.
The petitioners further contend, that they acquired some interest in the premises by the deed of release made by Good-hue to them on August 29, L844 ; that the releases made between Goodhue and McLaflin should be considered as entirely void, if their intended effect be avoided by the respondent. But such conveyances, made by tenants in common of a portion of the common estate by metes and bounds, as before stated, are not void with respect to other persons than their co-tenants. The petitioners could acquire no interest in the premises by the release deed made by Goodhue to them, for he had then no interest in the premises, upon which that conveyance could operate.
These doctrines will be found to be recognized in the cases cited by the respective counsel in their arguments; or to be deducible from the principles therein contained.
The petitioners failing to establish any title as tenants in common to an undivided share of the premises, their petition is dismissed with costs for the respondent.