46 Vt. 750 | Vt. | 1874
The opinion of the court was delivered by
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
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
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.
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.