The opinion
*53 By the Court,
Savage, Ch. J.
That this action lies by one tenant in common against another, has been decided in England. That point does not, however, necessarily arise, as the facts in my judgment do not warrant the action. A lew days previous to the expiration of the term, the plain tin’s agent called with a written demand of the possession. Before the term expired, the defendant offered possession of half, which was all the plaintiff demanded or was entitled to. The agent refused having any thing to do with it. The defendant remained in possession, as he had a right to do, unless the plaintiff came to receive possession. They were tenants in common. The defendant certainly offered to give possession, and did not act at variance with that offer. He was not bound to abandon the possession, nor to make partition and occupy one half. His possession of the whole was lawful, as he did not prevent his co-tenant from occupying with him.
The court below decided correctly,
Judgment affirmed.