
    Doak versus Wiswell.
    A judgment fGr tlie demandant in a real action with possession taken under it, will preclude the tenant in that action from afterwards asserting against such demandant any personal property in the buildings which he had erected on the land.
    On Report from Nisi Prius, Tenney, J. presiding.
    Assumpsit.
    
      In 1838 and 1839, the plaintiff erected buildings upon land-belonging to his wife. She died' in 1845, and her heir-at-law, in 1847, recovered judgment in a real action against the plaintiff for the land, and entered into possession under the judgment. This suit is brought against the heir to recover for the value of the buildings. The case was submitted to the Court for a legal decision.
    
      Cutting, for the plaintiff.
    The legal presumption is, that the buildings were erected by the wife’s consent. They were, therefore, personal property belonging to him, such as his creditors might have attached. The defendant having taken the possession and use of them, is bound to repay then value. Osgood v. Howard, 6 Maine, 404; Russell v. Richards, 10 Maine, 429 ; Wells v. Bannister, 4 Mass. 514; 7 Howard’s Miss. 421; 1 Dane’s Abr. 191.
    
      Fessenden, for the defendant.
   Tenney, J., orally.

—Let it be supposed that the buildings belonged to the husband. The action for the land was brought directly against him. It was his duty to defend and protect, in that action, all his rights, connected with the land.

Whether he did or did not then set up his rights, by betterment claim or otherwise, does not appear by the report, and it is of no importance ; for the judgment with the possession taken under it, are a bar to this action. Nonsuit.  