The opinion of the court was delivered by
Barrett, J.It does not seem needful, in view of the manner in which the case was disposed of in the county court, to elaborate the propositions of law upon which our conclusions are based. From what is presented to us, it seems plain that the lot in question was, in fact, divided and allotted in the original division' and allotment of the town '; and so, in no sense, does it come within the designation of undivided lands. The evidence tended to show, and it was sufficient to warrant the jury in finding conclusively, that it was allotted to the right of Jacob Bail§y, one of the original proprietors. Unless this is conceded by the defendant, the matter should be submitted to the jury, under instructions conformable to what is above indicated. A perfect chain of pa*765per title was shown from Jacob Bailey to the plaintiff. The mortgage to Higginson does not interrupt the continuity of the chain. The evidence is sufficient to show that the mortgage interest had been in fact extinguished. As the title of Jacob Bailey, subject to the mortgage, was conveyed by him to Lowell, who, and-his heirs, have ever since held the title, it would be presumed, after such a lapse of time, and no claim under the mortgage having been set up, that the mortgage claim had been satisfied, and the right extinguished, or that the mortgage had become ineffectual by bar, in analogy to the statute of limitations. 4 Kent- Com. 189. The assignment of it to Little by the administrator óf the mortgagee, by said Lowell as attorney, though his- power of attorney is not shown, nor was recorded, tends, as evidence, to favor the presumption of satisfaction resulting from lapse of time, in connection with the fact that no claim has ever been set up under it. No color of title was shown by the defendant. The deeds and levies of execution introduced by him, do not name nor profess to cover the lot in question. The record of them, therefore, did not tend to indicate any title or claim to- said lot. The levy made by the defendant did not, in fact, embrace lot No. 73, and so not only does it not constitute color, but does not, as an act of the defendant, tend to show claim of title by him.
Nothing is shown tending to give Holt title, or color of title, to the lot. The survey- made by the defendant in November, 1865, and recorded January 15, 1867, if done by the procurement or authorization of Holt, would not, of itself, constitute color of title; but might-be evidence tending to show that he was claiming title. If Holt was doing, or was procuring acts tobe done on the lot at the time of and after said survey, the fact of said survey and record, if made by his procurement, wbuld be proper for consideration in a suit against him, as bearing on the character of his acts on the- lot, whether they were trespasses or were acts of possession. If Holt did not authorize said survey and record, then they would go for nothing. If he did not authorize the acts done by the defendant on the lot, then they would go for nothing, as touching any right of himself in reference to the lot. If he did authorize the survey and the recording of it, and the acts of the *766defendant, they are of no avail to the defendant in this suit, because the defendant does not get any color of title, or stand on any rights in this lot derived from Holt.
The case standing, then, without any color of title in Holt, and with evidence tending only to show that Holt, through the agency of the defendant, was making claim:of ownership, and the defendant himself showing that he was acting as Holt’s agent as to lot No. 73, down to March 20, 1867, and with no evidence tending to show color of title at all at any time in himself, or that he was claiming title to said lot in his own right -till after said notice of March 20, 1867, it vvould seem that the character of the acts of the defendant on the land, must depend on what he did and claimed in his own right after his professed agency for Holt had ceased. And, on the question whether he was claiming title and right while doing said acts, his offeririg to buy the plaintiff’s interest, would be for the consideration of the jury, under proper instructions. He is defending -this action of trespass, not only on the ground that the plaintiff has not title, but also, and equally, on the ground that, if he has such title, -the defendant was in possession at the time this' suit was brought, as disseisor of the plaintiff. What had been done while the defendant was acting as the agent of Holt, in the nature of a disseisin, would render Holt, and not the defendant, the disseisor. The possession and claim, whatever they may have been, were the possession and claim of Holt, and not of the defendant. Any possession arid claim of which the defendant is entitled to avail himself in defence of this suit, can only be what he shall' prove to have been made by himself, in his own name and right, after he ceased’ to be acting in the name, and as the professed agent, of Holt. The legal consequences of acts done under claim of right, on the one hand, or not under such claim, on the other, are sufficiently indicated by numerous cases, of which it suffices to refer to Doolittle v. Linsley, 2 Aik. 155, and the comments of Judge Peck on that case, in Kidder v. Kennedy et als. 43 Vt. 729, and to the case of Hapgood v. Burt, 4 Vt. 155, in which the case of Props, of Kennebec v. Springer, is cited, and the language of Ch. J. Parsons, in delivering the opinion, is quoted.
*767Upon the evidence, the plaintiff would be entitled to recover in this action, for the original entry by the defendant, and for all cuttings of trees by him outside of the alleged enclosure; and, unless the jury should find that the defendant had disseised the plaintiff, and was in possession as disseisor at the time this suit was brought, of the part of the lot within said pretended enclosure, the plaintiff would be entitled to recover for all trespasses by the defendant, covered by the. declaration.
As Jacob Bailey was one of the original proprietors, if lot No. 78 was not allotted to him as such'proprietor, in severalty, he was holding as tenant in common, and the plaintiff, standing in his right, may recover for trespasses committed by a stranger. No opinion is expressed on the point made as.to the sale and conveyance to Bennett of the east half of the lot, and the possession thereof by him and his assigns.
Judgment reversed, and cause remanded.