By the Court.
delivering the opinion.
There are ten assignments of error in this bill of exceptions ; but when simmered down, there are in fact but three' points in the case.
1st As to the ruling of the Court, respecting the allowance of the amendment made in 1853; and the effect of that *275amendment upon the plea of the statute of limitations, we see nothing wrong.
2d. As to the mesne profits, this was a question of fact for the jury; and the evidence being conflicting, we would not disturb the verdict upon that ground. But,
3d. We must think, the verdict of the jury contrary to • law, and that a new trial should have been awarded, for the reason, that until the repudiation on the trial, by Farley Adams of his deed to Hudson, on the plea of infancy, he, Law-ton, the vendee of Hudson, held the land in dispute, not as the co-tenant of the plaintiff, Adams, but in severalty. And that no act or declaration of Lawton’s, made prior to the commencement of the suit, can be relied on, to entitle Farley Adams to maintain this action against him, as joint tenant. In other words, that inasmuch as one joint tenant' cannot bring ejectment against another, until the co-tenant in possession, has said or done something which amounts to a denial of the right of the other tenant, and Lawton was holding in severalty when the action was commenced, and the plea of infancy set up and sustained; there was no cause- of action at the time the suit was brought, and the case must on that account fail.
The plaintiff and his brother, the acknowledged owners of the land, convey it to Hudson, and Hudson to Lawton. Lawton treats it as his own, as he had a right to do. The first demand made by Farley Adams, one of the feoffors, to be let into the land, is a writ. He seeks to protect his possession under the joint deed from Farley Adams and his brother. In reply to this, Farley Adams plead infancy to his deed, and the jury find for the plea, and then for the first time, he becomes in law, the joint tenant with Lawton; Lawton’s title was good until this act of repudiation. It was optional with the plaintiff to disaffirm or not, the title which he had made. But not having done this, until after he had sued, his action rvas premature. It may be, that Lawton may prefer to surrender, or rather to let Adams in, rather than incur the-ex*276pense of litigating. He is entitled to the opportunity or choice of doing so. Should he continue to resist, (he right of Adams, the suit will be resumed, and the present action will constitute a demand to sustain it.
It may look hard to oblige Adams to submit to the payment of costs in this case; and be kept out of his rights still longer, after so much delay has occurred. But reason as well as all the analogies of the law, sanction and require it. In most cases, one may demand their rights by suit, without any previous request. But in all such cases, the obligation rests upon the defendant to tender satisfaction. But in trover, there must be proof of conversion, or of a demand and refusal, from which a conversion will be inferred, before an action will lie. If an overseer agrees to work for a part of the crop, a demand must be made before he is entitled to compensation in money.
By pleading infancy in this case, the plaintiff has put himself upon strict law, he cannot complain therefore, if strict law he meted out to him. The law governing this case, is definite and definitely presented. It may well be asked, why did not Farley Adams before suing, notify Lawton, that he disaffirmed the conveyance to Hudson, and claimed tobe let into the joint occupancy of the premises ?
Judgment reversed.