ON MOTION. This is an appeal by a tenant from a judgment rendered against him in a proceeding under Section 948, Code of 1942, awarding the appellee a recovery of the land withheld from her by the appellant. Pursuant to permission given in the opinion rendered herein when the case was affirmed, 19 So.2d 518, the appellee has filed a motion requesting us to award her five per cent damages *Page 117 under Section 1971, Code of 1942, on the value of the land in controversy and since the value thereof does not here appear, to remand the case to the court below under Section 1972, Code of 1942, for the ascertainment by it of the value of the property. The appellant says, as we understand the brief of his counsel, that no such damages can be here awarded for the reason that the only interest of appellee in this land that is here involved is the rent that may have been due her by the appellant thereon, and that since no judgment was rendered in the court below for rent no damages of this character can be awarded. In this the appellant is mistaken. His claim and his contention in the court below were that he was not a tenant of the appellee but that he was in possession of the property and had the right to hold it under a contract for the purchase thereof. The court below held to the contrary and rendered a judgment that the appellee "do have of and recover from . . . J.C. Hodges the premises described as follows:" and directed that a warrant issue to the sheriff commanding him to put the appellee in possession of the premises. The interest of the appellee in this land therefore is not limited but covers all of its value. This motion will, therefore, be sustained.
As pointed out in our former opinion, "the appellant's appeal bond stipulates that if the judgment should be affirmed he will `pay all costs and the value of the use and occupation of said land after the time of taking the appeal, and damages for waste or injuries to the land not embraced in the use and occupation, after taking the appeal,' and the appellee requests that the cause be remanded to the court below for the ascertainment of the amount of the damages covered by this bond." This motion of the appellee renews that request. This is not an appeal from a judgment in an action of ejectment with a stay of execution and therefore Sections 1165 and 1166 of the Code of 1942 have no application, and no statute has come under our observation which permits this procedure, here. If the appellee has any right or cause of *Page 118 action under this provision of the appeal bond, as to which we express no opinion, it can be enforced only by an original action or suit on the bond. This portion of the appellee's motion will be overruled.
A judgment will be here rendered for the appellee on the appeal bond for five per cent damages on the value of the land and the cause will be remanded to the court below for the ascertainment of this value in accordance with Section 1972, Code of 1942.
So ordered.