delivered the opinion of the Court. This' case was taken from the jury, and has been submitted to the consideration of the Court upon the several questions of law raised at the trial. It was an action of trespass quare clausum fregit, and the questions relate to the plaintiff’s title to the locus in quo.
His title is derived from one Noel Allen, and it was proved, that the lot in question was located and set off to Allen, as one of the proprietors in the common and undivided lands in the town of Dartmouth, by a committee of the proprietors, duly appointed to make locations in severalty to and among the proprietors within the township. This location is recorded in the books of the proprietors, and the title thus derived has never been called in question by the proprietors. There was evidence tending to show that Noel Allen’s father was one of the proprietors, and a deed from him to Noel Allen was given in evidence.
This evidence clearly shows a prima facie title in the plaintiff, derived from the original proprietors ; and whether it can be avoided by them or not, it seems clear that it cannot be avoided by one who is a mere stranger to the title, and who has no title except a naked possession. The defendant offered to prove, that the ancestor of Alien had, before this location, taken up his full share of the common lands. But if this fact were proved, it would not show that the location was void. It is equivalent to a partition in common form, and binds the possession even between the parties, although it does not affect the right of property. But if the proprietors acquiesce, it is not competent for the defendant to interpose ; and it would be no defence, if he could show, that Noel Allen had obtained a larger share of the common property than he was entitled to. Nor would it be competent for the defendant to prove, that the locus had been assigned to another proprietor before the location and assignment to Allen. The defendant cannot fortify his own title by setting up the title of a stranger, although he may show that a stranger, and not the plaintiff, was in possession at the time of the alleged trespass. And besides, there was no evidence of any prior division. All that was proved was, that the lot in question had at a former period been built *391on. So that this latter question is not raised by the evidence.
Upon these principles, the plaintiff is entitled to judgment; nut according to the agreement of the parties, the case must be referred to another jury, though this seems to be useless, unless the defendant, on a new trial, can prove some new facts o fortify his defence.
JVeui trial granted.