ON MOTION FOR REHEARING.
Willie, Chief Justice.We are asked to reconsider that portion of the opinion heretofore delivered in this case which denies to the appellee the right to recover the value of the improvements placed *116by him upon the land in controversy. Ho objection is raised to so much of our decision as decrees the land itself to the appellant, but the ruling in that respect is acquiesced in as correct.
The judgment of the district court having been rendered in favor of Bammel, who was defendant below, that court had no occasion to pass upon the question of improvements, and it was not discussed upon appeal either in the briefs or argument of counsel. In the exhaustive arguments held by the respective counsel upon the motion for rehearing, the question is thoroughly discussed and all the authorities bearing upon it collated and commented upon.
We have, therefore, been able to give the subject a more satisfactory investigation.
The appellee was denied pay for his improvements by our original opinion for the following reasons: At the time of his purchase he was charged with notice that Mrs. Cole had agreed to sell the land for $1,500, and had acknowledged a deed with that consideration expressed in it. He had purchased from her agent for the sum of $1,000, and hence could not defend against a suit brought by her to recover the property unless he could show authority from her to the agent to sell at the lower rate, or that she had ratified the sale by subsequent conduct. Ho previous authority to the agent was shown, and it was affirmatively proved that, when the terms of the sale were made known to her, she expressly repudiated it by refusing to receive any part of the purchase money. It was not shown that this repudiation was made known to Bammel, nor upon the question of title was this at all necessary. He bought from one not authorized to sell upon the terms of the purchase, and he took the risks of ratification by Mrs. Cole, and of a loss of the property in case of a repudiation by her. His title depended upon the occurrence or non-occurrence of the ratification, not upon whether or not the facts in reference to it were communicated to him. Hence, no apparent acquiescence in the sale deduced from a long continued failure to sue for the property, or to give notice of an intention to do so, could have any effect upon Mrs. Cole’s title to the land, or her right to recover it from the appellee. It may, however, have much effect upon the good faith of Bammel’s possession and his right to recover pay for his improvements.
The facts as presented by the record before us show that Bammel, after his purchase, commenced improving the land, and continued so to do, without any objection on the part of Mrs. Cole, or any knowledge of her repudiation of the sale, or of her intention to sue for the property. This silence on her part continued for over seven years, *117during which time the property was greatly improved and enhanced in value by the efforts and at the expense of the appellant.
The case was that of a purchase with notice from one having no power to sell, accompanied with an apparent acquiescence in the sale by the party who alone could defeat it, continued for so long a period of time as to lead the vendee to believe that the true title would not be asserted against him.
The result of our decisions in like cases is that the mere fact that a party buys from one who he knows has no power to sell is not sufficient to make him a possessor in bad faith. There may be attending or subsequent circumstances which will relieve the possession of such a character and entitle the vendee to pay for his improvements. Sartain v. Hamilton, 12 Tex., 219; Dorn v. Dunham, 24 Tex., 366; French v. Grenet. 57 Tex., 273.
What circumstances will be sufficient cannot well be reduced to any general rule. It would seem, however, that when the only defect in the title is in the power under which it was executed, and such as the true owner could waive by parol or acts done in pais, any conduct of the latter which led the possessor to believe that such waiver had taken place or would occur, or that the owner Trad acquiesced in his possession and improvement of the land, would constitute him a possessor in good faith.
Mrs. Cole, with full knowledge that Bammel was improving the property in the belief that he had good title to it, stood by for seven years and permitted him to make the improvements and gave him no notice that she did not approve the sale or would sue for the land.
We think, under these particular facts taken in connection with the circumstance that the only defect in Bammel’s title was such as Mrs. Cole could waive by her conduct, that a sufficient case of good faith is made out to entitle Bammel to pay for his improvements.
Indeed, this court has held in two cases that one who buys, knowing that his vendor has a deed from a married woman defectively acknowledged, may be a possessor in good faith. Hill v. Spear, 48 Tex., 583; Berry v. Donley, 26 Tex., 737.
Ho reasons are given in either case for this ruling of the court, but it must rest upon the ground that the defect was such as the wife could waive, and, not having taken advantage of it, the purchaser might in good faith suppose she would waive it, and with her acquiescence had improved the property.
A rehearing will be granted upon the question of improvements alone, and for a more definite ascertainment of the facts bearing upon *118that question alone, the cause .will be remanded to the court below, with the following instructions:
[Opinion delivered June 27, 1884.]1st. That the said court enter judgment in behalf of the plaintiff below for the recovery of the property in controversy and all costs of suit.
2d. That it hear evidence as to the adverse possession of the defendant, and ascertain whether such possession has been held in good faith, according to the principles laid down in this opinion, for at least one year next before the commencement of this suit.
3d. If it shall be found that such possession has not been thus held in good faith, the judgment heretofore directed to be entered for the plaintiff shall include also a recovery of the improvements upon the property and the issuance of a writ of possession.
4th. If it shall be found that such possession has been thus held in good faith, the court shall ascertain the value at the time of the trial of such improvements as have been made upon the lots before the filing of this suit, not exceeding the amount to which the value of the premises is actually increased thereby.
5th. The court shall further proceed in the trial of the question of improvements and rents, and in setting off one against the other, and in rendering judgment as to said rents and said improvements, in all respects according to the second and third subdivisions of art. 4814, and according to arts. 4815 to 4820 inclusive, of the Revised Statutes of the state of Texas.
. With which directions the judgment is reversed and the cause remanded.
Reversed and remanded.