It is, therefore, adjudged and decreed, that the judgment of WESTErn Dist. the District Court be avoided and reversed; and it is further October, 1840. adjudged and decreed, that the plaintiffs recover of the defendant eighty-seven dollars and fifty cents, with costs in the District Court, those of the appeal to be paid by the plaintiffs and appellees. PEARCE ET AL. 08. FRANTUM. PEARCE ET AL VS. FRANTUM. ON A REHEARING. The possession of more than a year suffices to give the possessor a right to be maintained in his possession, until a better right is shown, and that he makes the fruits his own before judicial demand. The Spanish law provided that whether the party evicted possessed in good or bad faith, he was not bound to deliver up the premises, to the owner, until he shall have been paid for the expenses incurred on account of them. So, the possessor in bad faith may claim in offset of rents or fruits, which he is condemned to pay, the enhanced value which his improvements added to the property. The son may become the owner of his father's improvements on land from which he is evicted, after his purchase, and is considered in the same light, in respect to his right to be paid for valuable improvements, as his father, and previous possessor. This right to be paid for useful improvements is a real right, and the party evicted may retain possesion until he is remunerated. The first opinion in this case was pronounced at October term, 1838. The counsel of the plaintiffs urged a rehearing and the following petition was presented. At the close of the term, after judge Bullard had left the court, the other two judges (Martin and Carleton,) having some doubts respecting the correctness of the decision, granted a rehearing. Winn, for the plaintiff, asked for a rehearing: It is respectfully urged that the defendant was never a possessor in good faith, but on the contrary, that he was a possessor in bad faith; and a possessor can occupy but one of two positions, he must be either a possessor in good faith, or in bad faith. Civil Code of 1808; page 102; article 7. There are two sorts of possessions, those who possess honestly as master of the thing, and those who possess knavishly (mauvaise foi.) No possessor can be truly master and possessor as owner without title, good upon its face, and not a mere naked possession unaccompanied by any manner of title. Code, page 478, article 21. [He then goes into a critical examination to show that the defendant was without title, and necessarily a possessor in bad faith, and sums up the law of the case as follows.] Civil 1. If this view of the evidence and law be correct, then the defendant was a possessor in bad faith ab initio, and we are entitled to recover rent from the year 1820. See Donaldson et al. vs. Hull, 7 Martin, N. S., 112, which is much stronger for the defendant than the case at bar. In the case of "Donaldson et al. vs. Hull, 7 N. S., 113, the present senior justice, in delivering the opinion of the court, said: "The defendant then is bound to restore the slaves and the value of their services; and we think the Parish Court erred in confining its judgment to the period that elapsed between the demand and the decision of the suit. The case appears peculiarly a hard one, as the defendant bought in moral good faith, &c." 2. The court expresses the opinion, (and the claim for improvements is based thereon) that "in respect to the right to be reimbursed for useful expenses, by which the property has been made more valuable to the owner, the Code makes little or no distinction between the possessor in good or in bad faith." This position we feel bound, respectfully, to controvert, as inconsistent with the previous opinions of this court. The court bases this opinion upon Pothier, No. 346; 8 Martin, N. S., 609; 2 Louisiana Reports, 174, and 3 Louisiana Reports, V8. FRANTUM. 543. The doctrine laid down by Pothier is in the words "Cette WESTERN DIST. October, 1840. obligation ne naît que de cette régle d'équité qui ne permet pas que quelqu'un s'en richisse aux dépens d'autrui; suivant cette régle, le PEARce et al. propriétaire ne doit pas profiter aux dépens de ce possesseur, de l'impense que ce possesseur a faite, mais il n'en profite qu'autant que la chose le trouve augmentée de valeur par cette impense; il ne doit donc être obligé à le rembourser que jusqu'à cette concurrence, quand même se possesseur aurait déboursé d'avantage." It is respectfully submitted, that No. 346 of Pothier does not bear out the principle as applied by the court. The commencement of the number is in these words, "ce principie, que le possesseur de bonna foi doit être remboursé des depens utiler, &c," and the number is entirely confined to pointing out the doctrine in relation to possessors in good faith, and its application to such possessors is not contested. I will now attempt to show that the provisions of the Code of 1808, and the decisions of this honorable court, present a striking and wide difference between the possessor in good faith and the possessor in bad faith, on the question as to the reimbursement they are respectively entitled to for improvements made on lands from which they shall be evicted. Old Code, 320; article 15, provides that "he to whom the thing is restored must allow, even to the person who possessed it through a want of good faith, for all the necessary and useful expenses which have been incurred for the preservation of the thing." This does not expressly prohibit the allowing more than the necessary and useful expenses for preservation, but the implication is strong. The latter paragraph of article 12, page 104, expressly refers to bona fide possessors. "Nevertheless, if the plantations, edifices or works, may have been done by a third person evicted, but not sentenced to make restitution of the fruits, because said person possessed bona fide, the owner shall not have a right to demand the suppression of the said works, plantations or edifices, &c., but shall reimburse, &c." These two articles, taken together exclude the idea that the possessor in bad faith has the same rights as the possesor in good faith; and we contend that, by a fair PEARCE ET AL. V8 FRANTUM. WESTERN DIST. Construction of them, the possessor in bad faith is only to be October, 1840. reimbursed for such expenses as were "necessary and useful" "for the preservation" of the land and it will not be pretended that clearing land is necessary and useful for its preservation. That this honorable court has established a distinction between the relative rights of the possessor in good and bad faith, in such cases, would seem to be far from doubt. In the case of Herriot et al. vs. Broussard, 4 Martin, N. S., 267, (where the defendant had an imperfect title) the present senior justice, who delivered the opinion of the court said: "the defendant's claim for remuneration, on account of ameliorations or improvements on the disputed premises, was properly rejected by the court below. He is not one of those possessors to whom our laws accord such a right; he knew that he held without title, for he did not accept that intended to be conveyed, &c." In behalf of this decision we may invoke the maxim, "stare decisis," and the general principle, that the construction given by courts to a law nearest its date is most to be relied on. It is respectfully submitted that the cases referred to do not bear out the opinion of the court as above expressed. In the case in 8 Martin, N. S., 609, the court says; "by law the owner who evicts a bona fide possessor, &c." must reimburse. In that case the defendant had a title, on its face, translative of property, and was evicted by superior title. In the case of Boatner vs. Ventris, 2 Louisiana Reports, 173-4, the court says "this case has already been before us. The question which it presented in respect to the title was decided, and the cause remanded for an inquiry into the value of the improvements during the time the defendants were in good faith," and when the same case was previously remanded the court said "the cause will have to be remanded to inquire into the value of the improvements placed on the land while the appellees were in good faith" and the decree follows, "and it is decreed that the case be remanded to ascertain the value of the improvements made by the defendants while in good faith.” In the case of Elliott et al. vs. Labarre, &c., 3 Louisiana Reports, 543, the court said, "as to the law, the owner who recovers his property from a bona fide possessor has to pay him the value of the improvements put on it." These last three are the cases relied upon by the court, and they all carefully keep up the distinction between the possessor in good and bad faith. One is remanded with special instructions not to go beyond the period of good faith. Whilst the case first cited in 4 Martin, N. S., 267, broadly declares that the possessor in bad faith is not entitled to be reimbursed for improvements. 3. Lastly, we contend that the purchase of the improvement by the defendant did not subrogate him to the rights of the elder Frantum. Subrogation is never presumed unless in the special instances established by the Code, and this does not come under any of the heads of legal subrogation. Old Code, pages 288, 290, articles 149, 151; conventional subrogation must be express, Ibid. 150. If the defendant is subrogated by his purchase, then also must the plaintiffs be subrogated by theirs, and considering it as proved, that the defendant and his ancestor possessed in bad faith, the plaintiffs must be entitled to recover the fruits long posterior to the death of the elder Frantum, and if the defendant become subrogated to the advantages, he must take the disadvantages along with them. But it is respectfully submitted, that if the elder Frantum had any right for the improvements made by him, that right must have become the inheritance of his heirs. If the defendant possessed in bad faith, a strong reason may be presented why the equity of the law should not extend to him. In estimating the value of the fruits, the court gives about three dollars per annum per acre for the improved land, or for the one hundred acres, three hundred dollars per annum. Now it is well known that such land will produce about one bale per acre (perhaps one bale per arpent) or one hundred bales for the one hundred acres. This has been worth on an average at least forty dollars per bale or four thousand dollars per annum, say that it required ten hands to cultivate it, and deduct fifty dollars per hand for expenses and one hundred and fifty dollars for hire of them, and we have two hundred dollars per hand per annum or two thousand dollars, less three hundred dollars, which |