The defendant being a stranger at the time of trial, and also, at the time of commencing the action, could not contest the division on the trial. After the evidence of the plaintiff, the burden lay on the defendant, to shew Ms right in the land, either at the time he was sued, or at the time of trial; his voluntarily parting with an interest purchased in the interim, cannot be a subject of complaint on his part. Purchasers under the plaintiff would be affected by the Judgment in the same manner as those under the defendant, yet as it is clear law that if the plaintiff parts with his title before trial he cannot recover. So the defendant parting with his interest in this case must have the same effect in his right in the suit.

Motion dismissed and Judgment rendered on verdict.