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The opinion of the court-was delivered by-

Hebard, J.

The principal question in this case, and the one upon which the case must turn, is, whether the plaintiff, in legal contemplation, could take a fraudulent deed, and still, in the language of the statute, “suppose, at the time of such purchase, such title to be good in fee.” The fact that the contract for the purchase ' *114of the land was fraudulent has been found by the jury, and that point cannot be farther litigated. It was the very fact, so the bill of exceptions finds, upon which' the action of ejectment was made-to depend. ' And this fraud, too, must have been of that affirmative character, that the plaintiff cannot plead ignorance of the facts, or of the consequences, — otherwise, the jury would not have been warranted in returning the verdict that they did. This point having been settled and established by the jury, it is difficult to understand how the plaintiff could have supposed that he had, at the time of the purchase, “a good title in fee,” when the very contract by which he attempted to hold the land, contained the seeds of its own dissolution.

The plaintiff complains that the court excluded certain facts that he offered to prove. The exceptions do not state the purpose for which those facts were offered, but it is to be presumed that the object was to satisfy the jury that he purchased the land in good faith, and without any intention of injuring any one. All that would have been very proper in the action of ejectment, and, if he had succeeded in satisfying the jury that he had no such fraudulent intent, that must of course have induced a different verdict, as that was the very fact in issue. But the jury have found the fact the other way, and it has become res acljudicata; and now to admit that proof and try the same question over again, between the same parties, would be contravening a well settled principle of law.

• The plaintiff also objected to the admission of the record of the action of ejectment; but the introduction of that record was essential to his recovery; and without it I do not see how he could recover; for this proceeding for betterments cannot be sustained'until after thejre shall have been rendered a final judgment in the action of ejectment; and the record in that action must be the only legal evidence.

The facts, then, which were offered by the plaintiff, had no other tendency than to show, that, in the purchase of said land, by the plaintiff from Norris, there was no fraud, and that, there being no fraud in that deed, the defendant is without title to the land. In Brown v. Storm, 4 Vt. 37, which was a declaration for betterments, *115in which there were several counts, the court say, “that no damage can be assessed' upon those counts, which are founded on an alleged want of title in Storm.” If damage eannot be assessed upon a count setting forth a want of title in the defendant, it would follow, that the plaintiff could not be permitted to introduce evidence to prove the same fact, when it was not alleged in the declaration. The bill of exceptions, in this case, refers to the bill of exceptions in the ejectment suit; and the exceptions in that suit state that •Gilman-introduced such evidence as enabled him to avoid Thompson’s deed for fraud, and to recover a verdict; and upon this it is argued, that, for any thing that appears in that bill of exceptions, the proof showed' the deed to Thompson to be a voluntary deed, given without consideration, and therefore void in law as to the creditors of Norris ; and, that being the case, that it would not follow, necessarily, that Thompson was parti ceps crirainis,, in the fraud, and, therefore, that this testimony should have been received. But this reasoning all vanishes when we look at the facts that he thus offered to prove. Among other facts, which Thompson offered, was the fact that he paid a full and adequate consideration for the deed, which in part consisted of a demand against David Norris. How much more he paid does not appear, but he gave evidence on the trial tending to prove that the land, when he bought it, was not worth over one hundred dollars. This, then, shows that Thompson considered that he was- paying a full consideration for the land ; and that being so, the deed could have been avoided for fraud, only upon showing that Thompson was a partaker of the fraud.

But it is said that it will be a great hardship for Thompson to lose these improvements and erections, which he put on this land in good faith. Whatever hardship a legal result in this case may work upon the plaintiff, we may equally regret with others, and would gladly relieve him, if in our power to do so without visiting a similar hardship upon the other party. It is a maxim of the law,. that every man shall bear his own misfortunes, and suffer for his own faults. If, by his own fault, the plaintiff has so intermingled his own property with that of others, that it cannot be distinguished, *116and separated; it is either the fault or the misfortune of himself, and upon him the law visits the loss. The law gave the defendant the right to levy his execution upon this landthus fraudulently obtained. The law has made no provision for levying upon the land without the improvements, and by thus levying he has paid an equivalent for the whole land and improvements; and by compelling him to pay to the plaintiff the value of the improvements, we should be visiting upon him the same hardships that the plaintiff seeks to avoid. The same hardship might overtake a man who should become a fraudulent purchaser of personal property. The property, by keeping, might be very much increased in value, and still be liable to be attached and held by the creditor of the vendor, and the purchaser could have no remedy or relief for his expense in keeping the property.

A defendant in an action of ejectment, after final judgment against him, may, as a matter of statutory right, file his declaration for betterments.; and, after the declaration is filed, it stands to be tried and determined by the law applicable to such cases. Gaige et al. v. Ladd, 5 Vt. 266.

Gilman had established his right to recover, by showing Thompson’s deed to be fraudulent. And, upon the trial of the declaration for betterments, to try that question of fraud over again would be the same as to try the recovering party’s title over again, when it depended upon other facts. The plaintiff in an action for better-ments cannot proceed upon the ground, of a want of title in the defendant. And, in this case, to allow the plaintiff to go into the showing that his deed was not fraudulent would be allowing him to dispute the .correctness of the former recovery.

Judgment of the county court affirmed.

See the report of that case,— Oilman v. Thompson, 11 Vt. 643.

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