The present case is not like Sweetland v. Stetson, 115 Mass. 49, where the plaintiff, being in possession, sued in tort for trespass and, although neither party proved title to the *103close, the action was maintained. It was undisputed that the plaintiff’s wife owned the land in fee, and the loads of soil, alleged to have been wrongfully taken away by the defendant, became upon severance personal property, for the conversion of which an action will lie. Stanley v. Gaylord, 1 Cush. 536. Riley v. Boston Water Power Co. 11 Cush. 11. Phillips v. Bowers, 7 Gray, 21.
But even if the plaintiff in his own name contracted with the defendant to build a cellar and perform other work preparatory to the erection of a house, he acted as the agent of his wife in the management and improvement of the land (Simes v. Rockwell, 156 Mass. 372), and acquired no independent possession of or title to the premises. Nor did the right to damages arising from the transmutation from realty to personalty, but which wrought no change in the ownership, charge the plaintiff with any enforceable duty or liability to his wife either at law or in equity. Atkins v. Atkins, 195 Mass. 124, 128. The ruling that the plaintiff could not maintain the action was right.
Exceptions overruled.