delivered the opinion of the Court. The material facts in the case allowed by the Judge are, that by the records of the proprietors and a plan of the allotment, it appeared a division of the town of Rutland was made into severalty in the year 1793. This division was not made conformably to the statute, but is proved to have been ever since acquiesced in by the proprietors. The lands in the town are still holden under this division; and most of the lots were voted to the proprietors in lieu of their drafts. The record shows, that at a meeting of the proprietors in that year, they voted to James Mead, under whom the defendant claims, 80 acres upon the right of John Melvin on the 3d division j and also to John Smith, under whom the plaintiffs claim, adjoining thereto, 60 acres, that is, 20 acres to each of the rights of John Dandly, Thomas Blanchard, and Oliver Colburn, on the 3d division. This action is brought for the 60 acres. No right is claimed by either party to the land in question through any conveyance from the original proprietor. The deed from Mead describes the 80 acres as bounded north by the lot of Smith 5 and the defendant claimed the *429land in question as part of the 80 acre lot. The Court directed a verdict for the defendant, the plaintiffs having failed to show a title by deed from the original proprietor, or by the statute of limitations, or by a prior occupancy.
The language of the Court is a correct exposition of the law as to what is required of the plaintiff in ordinary cases to entitle him to recover in ejectment. But in this case it is insisted by the plaintiffs’ counsel, that from the facts shown in evidence the defendant is concluded by the division, and is estopped from denying the plaintiffs’ title. In recurring to the facts contained in the case, from which it may be supposed the plaintiff is concluded, the first inquiry is, as to the effect of the record of the proprietors on his rights. The object to be effected by a division, whether made conformably to the statute or not, is to sever that which was before in common. An actual division and allotment, made and approved by persons who are not proprietors, can have no effect upon the rights of those who are. If a majority of those who are proprietors should make, approve of, and acquiesce in such division, it can, at most, have no other effect upon the rights of the minority, than to sever and locate their rights. If the proprietors .had the power to sanction a division, which was not made according to the requisitions of the statute, they had no authority to decide a question of title; they could not divest a proprietor of his right, or give a title that did not before exist. There is nothing in the law that authorizes the proprietors to decide a question of title; it may therefore be likened to a proceeding coram non judice, by which no one is estopped. The records of the acts of the proprietors cannot, therefore, estop the de fendant, unless they are to be considered his own acts, or the acts of some one under whom he claims; and for this purpose it must at least appear, that he, as a proprietor, or those under whom he claims, personally aided in, and approved of the proceedings, or have recognized those proceedings by some act since, exclusively applicable to that which involved the title of the proprietors. If the proprietors are empowered to divide into severalty, and not to decide the question of title, that which furnishes evidence of an acquiescence, if it can consistently be confined to such acts as may by the proprietors be legitimately performed, can never be construed to extend to such as may not. It appears from the case, that this di *430vision of the proprietors has ever been acquiesced in, and the lands-M the town are still holden under it; but it does not appear that John Smith was a proprietor. As no right is claimed by possess¡0[^ the effect of this acquiescence, &c. must be confined to the severance, and the extent of all that could be claimed would be applicable to a case, in which a proprietor had accepted and' taken possession of a lot, voted to him in lieu of his draft. The case shows the defendant claims title to the 80 acre lot by deed from the person to whom it was voted at the same time the 60 acre lot was set to Smith. If it is conceded, that, by deed poll and taking possession, the grantee can in any case be estopped, it is not perceived how the taking of the deed, and the claim under it, by the defendant, of the 80 acres, will estop him from denying the plaintiffs’ right to the 60 acres or any other land. The. defendant showed no other evidence of title than the deed of Mead; and none need have been shown as against the plaintiffs. It does not appear, whether Mead was, or was not the owner of the original right of Melvin ; nor does it appear that the defendant claimed title by force of the vote of the proprietors. The extent of all that can be inferred f rom the case stated is,that he recognized the division & allotment. There is no reference in the deed to any records or proceedings of the proprietors ; nor any recital of any right of Smith, by which the defendant is estopped, unless the reference in describing the boundaries should have that effect. But this surely cannot; it is but a supposal, and is generally immaterial even between the parties to the deed. Suppose there is a mistake as to the title of the person described as proprietor of the adjoining lot; there can be no authority or reason shown, wherefore the parties to this deed, or either of them, should be estopped from questioning the title of the person named, or should be prevented from holding such adjoining lot, by purchase thereafter from the real owner, against the person named as owner.
Therefore the Court consider in this case, that nothing short of evidence of title in the plaintiffs from the original proprietors, of fifteen years’ peaceable possession, or of a prior actual possession (the defendant being a stranger, having shown no colour of right) could have availed the plaintiffs; but they having failed of showing either, judgment must be rendered on the verdict.