On a rehearing,
Porter, J.delivered the opinion of the court.
This case was argued and decided at last *149May term, but doubts having arisen in the mind or the court, as to the correctness of its decision in relation to a claim for fruits, since the inception of the suit, a re-hearing was directed.
The other points made in the cause, need not be examined. They appear to have been correctly decided.
The purchase was made under the first Civil Code, and must be governed by it. The 30f/« article of that work 480, declares, that the bona fide possessor must restore the fruits which he reaps after the demand. In the case of Daguin vs. Corin, we lately decided, that this expression of the legislative will was too clear and unequivocal, to afford room for interpretation. 8 Martin, n. s.
A point, however, not made in that case, has been raised in this. The 3416 article of the La. Code, it is said, gives the right to the possessor in good faith, to retain the property until he is paid for his improvements; and until he is paid for them, he is not in default.
Perhaps there might be some force in this position, if the defendant, so soon as suit was commenced against him, had offered to surrender the property on being paid for his improvements. But where he resists the de*150mand of the owner, puts his title at issue, and contests it, the plaintiff has not the means or obtaining possession on tendering the value Gf the improvements. At the time the provision in our former code was enacted, in relation to fruits, that principle which, by the S416 article of tke La. Code, now makes a part of our positive legislation, existed in our jurisprudence. With a knowledge of its existence, the law maker established no distinction between the possessor who had placed improvements on the property, and him who had not, and we cannot distinguish where the legislator has not.
The amount of the fruits is the next inquiry. The defendant was not required to render an account of those he had reaped or gathered. No evidence is given on the part of the plaintiff of the crops made. We must therefore recur to the estimation given by the witnesses of the value of the rent. One swears it is worth five hundred dollars a year, but the weight due to his testimony is greatly impaired by an acknowledgment drawn from him, that he rents five times the quantity adjoining, for two hundred and fifty dollars annually. And admitting his lease, which is for twenty years, tobe worth, as he *151states, two thousand dollars, it would still make the rent not quite one dollar and fifty cents an arpent. Another witness swears the land sued for, is worth from one dollar fifty to two dollars an arpent yearly. We will take the latter sum which makes the amount of one hundred dollars a year to be paid by the defendant since the institution of the suit.
The sale at which the defendant purchased, was made to pay for a levee which the police jury had ordered on the premises. The court below, by its judgment, decreed, that the plaintiff must pay this sum before she recovered possession. The correctness of the decision is impugned on the ground, that the petitioner is also obliged to restore the value of the improvements, and that the levee is included in the estimation made of them. With the judge below, we think the evidence shows the improvements to be worth two thousand dollars, independent of the levee, and that no error was committed in directing the plaintiff to return money which had been applied to the benefit of the succession, under which the plaintiff claims.
The improvements, and the money paid by defendant, amount to two thousand six *152From this, hundred and eighty dollars, ° must be deducted two years and eleven months rent — two hundred and ninety-two dollars and sixty-six cents — The balance is two thousand three hundred and eighty-eight dollars and thirty-three hundredths of a dollar.
It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and it is further ordered, adjudged, and decreed, that the plaintiff do recover possession of the premises set forth in the petition, and it is further ordered, that no writ issue to put the plaintiff in possession until she pay the defendant the sum of two thousand three hundred and eighty-eight dollars and thirty three hundredths of a dollar; it is further ordered, that unless the sum decreed to Gabriel Winter, for improvements is paid to him within two months from the date of this decree, said Gabriel Winter is authorized to take out execution against the plaintiff C. D. Donaldson for the same; and- it is further decreed, that the defendant pay costs in both courts.