On Rehearing.
Willie, Chief Justice.In rendering our decision in this cause we failed to pass upon the right of the appellee to recover the value of the improvements claimed to have been made by him in good faith upon the land in controversy. It seems that at the time the appellant *406purchased the land there were some improvements upon it, but these-he removed at some time prior to the sale of the land under foreclosure proceedings. After the appellant deserted the land, the appellee moved upon it, and commenced improving it, and was induced to do so by the conduct of the appellant in apparently abandoning all claim to the premises. The appellee was not aware that the appellant intended to reassert any claim to the property until the former had made considerable progress in improving it. The appellee, too, took the advice of counsel before attempting to place any improvements upon the premises. We think that these circumstances are sufficient to show good faith on the part of Boyd, and ignorance that the appellant intended to set up any adverse claim to the land; and if he was. led into improving the property of another, it was not" through any default on his part in informing himself as to the right and intentions of the adverse claimant, but he was deceived by the conduct of the latter, and led to make improvements upon the premises which he would not otherwise have placed there. Good faith is moré or less a, question of fact, and depends upon the circumstances of the particular case in which it is asserted.
We think the circumstances detailed were sufficient to constitute the appellant a possessor in good faith, and he is entitled to recover the value of the improvements placed by him upon the land in controversy. But Ave have not before us the data upon which to render the judgment required by our statute in case of a claim for improvements by a possessor in good faith. The value of the improvements is shown as also the value of the land; but the rental value of the land without the improvements is not shown. The statute requires that this should be ascertained before the rights of the parties can be adjusted. Instead, therefore, of rendering the judgment here, the cause will be remanded with the instructions to the court below to render judgment, in favor of the appellant for the property in controversy and costs of suit; and further, that it hear proof as to the value of the improvements, and of the land without them, and also of the rental value of the land without the improvements, and render judgment as directed by our Revised Statutes, Art. 4814 to 4820 inclusive.
As to the other point, it is sufficient to say that the case of a vendor-holding the legal title and suing to foreclose his lien for the purchase money under an executory contract, is very different from the one presented by this record. Here the owner of the legal title did not sue to foreclose the lien, but a stranger to the legal title, who claimed a subrogation to the rights of the vendor, sought to subject the land to-his equity. He had not the superior title, and could not have recovered *407the land in a suit for that purpose. When neither party has legal title, the purchaser from the vendee is a necessary party to a suit to foreclose a lien for the purchase money. The cases cited by counsel for the appellee are not in point to the present, but the reasoning of the court in making the decisions clearly shows the necessity that there was of making Mrs. Wortham a party before her rights could be affected by the judgment in favor of Mrs. Blocker.
The judgment of the court below is reversed and the cause will be remanded only for the purpose of such action being taken in the court below as hereinbefore directed.
Reversed and Remanded.
[Opinion delivered June 4 1886.]