The charge of the Court is manifestly erroneous. It took from the jury the question of good faith; it required them to allow the defendant pay for bis improvements, whether they were made in good or bad faith, or were of any permanency or value to the property or not. It left nothing to the jury but merely the calculating of numbers; a simple matter of addition and subtraction. It requires no argument to show that, in a legal point of view, the case might as well have been taken from the jury altogether, and the matter of calculation referred to the Clerk.
As the case must be remanded, it becomes material to notice the ruling of the Court upon the admissibility of evidence adduced to support the claim, for improvements, as it involves questions which will probably arise upon another trial. The plea avers simply, that the defendant entered upon the land in good faith, believing it to be vacant, and that he made lasting, permanent and valuable improvements thereon, of the value of three thousand dollars ; which he claims in reconvention. It is evident that this plea does not contain sufficient substantive averments of fact to entitle the)defendant to compensation for improvements. It does not aver that the_de*383fendant entered under title, or claim of title or right. His “ good faith ” consisted, according to the plea, in believing the land to"be vacant; but it is not averred that he asserted or attempted to assert any claim of right by location, pre-emption or otherwise. It is too plain for discussion, that the mere belief that the land was vacant, cannot constitute such a possession in good faith as will entitle the party to maintain an action against the owner for compensation for improvements made upon the land. Repeated decisions of this Court have settled, that the failure to except to a pleading which manifestly discloses no right in the party, cannot entitle him to a recovery. (3 Tex. R. 335 ; 4 Id. 494.) Consequently, it cannot entitle a defendant to introduce evidence upon the trial, which does not conduce to establish any legal defense to the action, though it be in proof of his allegations. The evidence objected to, was to the effect simply, that the defendant had made improvements on the land ; it was not proposed to prove that he was a possessor in good faith ; nor was there any averment to let in proof of such possession. The evidence did not conduce to establish any ground of legal defense, or right to a recovery on the part of the defendant, and ought to have been excluded as irrelevant. (Beverly v. Burke, 9, Ga. 440.)
It is unnecessary at present to decide whether the defendant was precluded by the judgment in the action of trespass to try title, from setting up a claim for improvements in this action. If it should appear that he had made the claim in that action, and it had been adjudicated, it would certainly be a bar to a second action or plea for the same cause. But if he had been prevented from setting up the claim, it might be a question whether he should be held to be concluded. It has been held in Louisiana, that a possessor in good faith does not lose his right to be paid for improvements, by neglecting to pray for them in his answer to the petitory action. (Packwood v. Richardson, 1 Martin, N. S. 405 ; 6 new edit. 566.) If, how*384ever, the defendant is not precluded from going behind the judgment in the former suit, the right must be reciprocal, and the plaintiff ought also to be permitted to go behind it to claim compensation for use and occupation. This would'be very inconvenient in practice. It is certainly the better practice for the defendant to assert his right in his answer to the action to try title. It avoids a multiplicity of suits, and enables the Court to do complete justice between the parties and put an end to the litigation at once. And it would seem as matter of practice, if not of principle, that, to entitle the defendant to go behind the judgment to assert a claim for improvements, he ought to show some sufficient excuse for his failure to claim them in his answer to the action. If such excuse be shown, it is not perceived that there is anything in principle which would deny his right ^afterwards to assert the claim, as* the right to pay for improvements is not dependant wholly upon the Statute. (Saunders v. Roark, supra ; Bridge v. Boyd, 1 Story, R. 478.) At present, however, we are not called on to do more than to pass upon the legal sufficiency of the claim as it is presented by the record. It will be time enough definitively to settle other questions affecting the rights of the parties, when the merits of their respective claims are before us. It is perfectly clear that the defendant did not make out a case, by averment or proof, which entitled him to maintain Ms cross action, or claim in reconvention, for pay for his improvements. The judgment is therefore reversed, and the cause remanded.
Reversed and remanded.