This is an action of trespass for an assault and battery on the plaintiff, in forcibly ejecting him from a meeting-house in North BiidgeAvater, which the defendant justifies on the ground that the plaintiff was a trespasser in the house, and that the defendant had a right to eject him therefrom, *418using no more force than was necessary for that purpose. In support of this defence, the defendant proved that he had been chosen, by the proprietors of the said house, one of a committee of three to manage their aflairs, and that be was authorized to take charge of the house, and that he had charge thereof at the time of the assault.
To this evidence the plaintiff’s counsel objected, on the ground that the proprietors of the meeting-house had never been legally organized, and consequently that the records oí their proceedings in the choice of the said committee were inadmissible. To this objection two answers were given by the defendant’s counsel: First, that the defendant was in actual possession of the meeting-house, and had been for many years, he being also one of - the said proprietors: That in 1841 the Second Congregational Society in North Bridgewater, under whom the plaintiff claimed a right to enter, brought a bill in equity against the defendant, and procured an injunction thereon, and the appointment of a receiver to take care of said meeting-house and to lease the same, and to whom the key of the said house was delivered ; that said action was continued from term to term of this court until 1843, when it was ordered by the court that the said injunction, and the order appointing a receiver, be revoked, and that the key of the meeting-house should be delivered to the defendant by the receiver, which was done accordingly. In the second place, the defendant’s counsel contended that the said proprietors of the meeting-house had been duly organized in conformity to the Rev. Sts. c. 43.
As to the first, we are inclined to the opinion that the defendant had the actual and lawful possession of the meetinghouse, and had the right to maintain his possession against the Second Congregational Society, if their agent, the plaintiff, had no right to enter, although the proprietors had not been legally organized as a corporation. One tenant in common has a right, without any authority from his cotenants, to defend his possession against a party having no right. So a party having actual possession of property, without any other *419title, may defend his possession against a stranger having no title.
The decision of this point, however, is not necessary, as we are of opinion that the proprietors were duly organized in the year 1837, conformably to the provisions of the Rév. Sts. c. 43.
It has been objected that this property is not within the statute, because “ it is essential to an estate in common to be subject to partition,” as was said in Mitchell v. Starbuck, 10 Mass. 12. This general proposition is true, undoubtedly. By the Rev. Sts. c. 103, § 1, it is expressly provided, that all persons holding lands as joint tenants, coparceners, or tenants in common, may be compelled to divide the same, either by writ of partition at common law, or in the manner provided in that chapter. But, although this is the general principle, yet real estate may be so situated, and appropriated to such uses, as not to be capable of being divided among the owners of the common property without great loss and injury to all the proprietors. Such is the situation of wharves; and yet they are expressly included in St. 1783, c. 39, and in Rev. Sts. c. 43. Indeed, it is obvious that in all cases where property is held in common, which cannot be divided without great prejudice to the proprietors, the statute is peculiarly applicable and beneficial. Bonner v. Proprietors of Kennebeck Purchase, 7 Mass. 475. The question in the case of Mitchell v. Starbuck was, whether when tenants in common had organized themselves under the statute, as a corporation, the proprietors could afterwards be compelled to make partition ; a question which has no bearing on the point now under consideration. There can be no doubt, therefore, that the owners in common of the meeting-house lot had a right to organize themselves as a corporation, under the statute ; and so it was decided in the case of the said Second Congregational Society v. Waring, 24 Pick. 304.
It was then objected, that the proprietors did not organize themselves in pursuance of the requisitions of the statute; because :t does not appear by the records oí their proceedings *420that the five applicants to the magistrate, to call the meeting of the proprietors, were all proprietors, and because it does not appear that a majority in interest of all the proprietors voted in favor of the organization, as the statute requires. But we think these objections are not now open on this bill of exceptions. The objections should have been specifically made at the trial, when the defects in the record might have been supplied by other evidence.
The remaining question to be considered is, whether the plaintiff had any legal right to enter the meeting-house, and to, fix labels to the twenty one pews, as stated in the exceptions. The plaintiff entered for this purpose, claiming a right so to do, as the agent of the said Congregational Society, who, it is contended, were the lawful owners of the said pews. But we are of opinion that the evidence in the case clearly proves that the legal title to the meeting-house and land was in the proprietors, and that the said society had never acquired any legal title thereto. It is true that the house was built for the use of the society, and the evidence proves, or has a tendency to prove, that the society will be entitled to the surplus of any moneys which have been or may be received for the sales of the pews in said meeting-house, after defraying the expenses of building the house, and other expenses. But this is no proof of the society’s title to the twenty one pews, although, when sold, they may be entitled to the proceeds of the sale. The society proceeded under a misapprehension of their rights, which is the more remarkable, since their rights and those of the proprietors were fully considered and distinctly stated in the opinion of the court, in their action against Waring, before cited. It was in that case decided, that the legal estate in the land and meeting-house was in the proprietors, and not in the Congregational Society. It is true that the society prevailed in that suit; but judgment was rendered expressly on the ground that the legal estate was vested in the proprietors, and that the society was in possession by the permission of tne proprietors; the latter holding it as trustees for the former.
It is clear, therefore, that whatever rights the religious so*421ciety have to the property, they are equitable, and are cognizable only by a court of equity. They accordingly did commence a suit in equity, which, however, they did not prosecute to final judgment; probably because they were advised that it could not be maintained, it having been commenced against the present defendant, and not against the proprietors. But however this may be, and whatever rights the society may have, we are very clearly of opinion that they have no legal title to the pews in question, and that the plaintiff had no right to enter the meeting-house for the purpose of labelling them as their property.
Exceptions overruled.