delivered the opinion of the court.
To a claim for house rent, the defendant pleaded he owed nothing: that, at the institution of the suit, the plaintiff was not owner of the premises: that, when the defendant went in, the house was not in tenantable order, having been deserted for a number of years, and he took peaceable and quiet possession of it and repaired it. The amount spent in repairs was pleaded in reconvention against the plaintiff or whoever might own the house. There was judgment against the plaintiff, who appealed.
The testimony shews he was in possession of the premises in 1819, and rented them to Walton, who occupied them as his tenant for about five years; that, in 1826, the defendant entered into the premises and occupied them for a year, during which he made repairs to the value of $ 125. On his leaving them, the plaintiff rented them to Foster. Before the defendant went in, the premises were for a longtime unoccupied, and were the resorts of runaway slaves, and the house was not in tenantable order.
It has been urged, and the judge a quo has concluded that the plaintiff, having shown no title, and it being proved he had lost his possession, he. could not recover. — Civil Code, 3410, 3412.
It has appeared tp us the plaintiff, having shown a possession since the year 1819, ought to recover on that possession, unless he be shown to have lost it. This he would *454certainly have done, had the defendant gone in as a usurper. . . 3 . ’ . „ j It is m evidence he occupied the premises lor a year, and begun by putting repairs on the premises, for the account of the owner, who was then unknown to him, as he alleges-The amount of these repairs, he claims in reconvention. His leaving the premises is evidence that he pretends no thereto — his claim for repairs is also evidence of his. r Bad faith is not to be presumed, and the claim he makes is ..... . . „ . , . grounded on his having m possessed good faith, but uncer a precarious title, as a tenant by sufferance. If so he occu-p¡ec] for the owner; and when a lawful occupency results r . from the pleadings, and the evidence, every idea of an . r . . ,, , unlawful one, or of usurpation is repelled.
Where a person enters upon vacant premises, if on being sued 'for the rent by the uXnown^to him lt11®11 he entered. he reconveness for repairs he will be considered not in the light Of an useSrsingbUforS Pthe owner.We-'conclude the District Court erred in rejecting the claim.
According to the testimony of the plaintifl’s witnesses, we would be disposed to allow $30per month, for the rent. One of the witnesses for the defendant, thinks that rent was a fair one, after the repairs were made ; another thinks it was never worth more than $ 25. It is in evidence the upper story alone is now rented at $ 20 a month. Several witnesses say no rent could have been obtained for it when the defendant went in, till it was repaired.
On this, we have thought $25 per month was the value of the rent, after the repairs were made. We have deducted two months for the time we suppose taken in repairing the house; the evidence does not show an occupency of more than one year, though a longer one is alleged in the petition, and was the basis of the judgment appealed from. This establishs a claim for rent for 250 dollars, from which we have deducted the value of the -repairs, $ 125.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that there be judgment in favour of the plaintiff for one hundred and twenty-five dollars, with costs in both courts.