delivered the opinion of the court.
This case grows out of that of Brown vs. Frantum, decided by this court in October, 1833, between the same parties (see 6 Louisiana Reports, 39.) It is substantially a suit to recover the rents and profits, or fruits of the tract of land, then in controversy, from the inception of that suit; the plaintiff alleges that it was expressly agreed, that the question was reserved for future adjustment, and not litigated in that case.
The attention of this court is first drawn to a plea of res judicata, filed for (he first time on the appeal. Admitting that the exception does not come too late, yet, it appears to us, it ought not to avail the appellant. Not only did he in effect *419waive it below by permitting evidence to be given that the question was by agreement of parlies expressly reserved, but in his answer in this case, he seeks to recover in reconvention, or in compensation of the rents and profits demanded of him, the enhanced value of the land of which he was evicted, arising from the improvements made by him. He is thereby, in our opinion, precluded by his own acts and allegations, from availing himself of the exception.
In an action to recover the rents and profits in seperate suit after eviction, and the defendant pleads in compensation and reconvention, of the plaintiffs’demand, the enhanced value of the land of vv Uicli he was evicted, he cannot after-wards avail himself of the plea of res judicata. Under the Civil Code of 1808, the party evicted, who was even in good faith, was bound whith lie reaped, after the demand or institution of suit,The District Court gave judgment for the plaintiff, for the rents and profits from the date of the demand in the first case, deducting five hundred dollars for the value of a gin and dwelling house left on the premises; and the defendant appealed.
We have listened lo much argument (and the case has indeed been ably argued,) upon the question, how far the good faith of the defendant, exempts him from the obligation to pay for the fruits of the thing pending the action. We cannot consider the question an open one. The old Code, in force at the time the first suit was instituted, has established a positive rule on this subject, which was recognized by this court, in the case of Daquin et al. vs. Cairon et al., 8 Martin, N. S., 620. By article 30, page 480, the party evicted, who was even in good faith, is bound to restore the fruits which he reaped after the demand.
But the plaintiffs seek to recover the rents and profits from the year 1818, Ihree years before the judicial demand, and as relates to their right to recover for that period of time, and the right of the defendant to be paid for his improvements other than buildings left upon the premises, the good or bad faith of the defendant may well be considered. Two questions therefore remain for our consideration. 1st. Whether the defendant be liable for the rents and profits before the inception of the first suit, and 2d, whether he be entitled to the value of the improvements, and to what extent ?
I. It appears by the evidence that the plaintiffs never had been in possession of the tract of land; on the contrary, the father of the present defendant settled on it as early as 1811, and made a considerable clearing. It is not shown precisely *420at what lime he died, hut in 1821, before the institution of the first, suit, the improvement of the elder Frantum was sold at probate sale, and the defendant became the purchaser, and continued to reside on if, to extend the clearing and improvements, and so remained until 1833, after the final decision in the Supreme Court. In the year 1818, the father applied to the land office to obtain a preference in becoming the purchaser under the pre-emption law of 1814. At the time of the eviction, there were about one hundred and fifty acres of the land cleared, and an ordinary gin, dwelling house, and cabins upon it.
Where a party bus been in peaceable possession of land without title, in the hope of getting a pre-emption right, he will not be liable to account for the rents and profits previously to the inception of the suit evicting him.We are by no means prepared to admit that a settler upon unoccupied land, who redeems it from a state of nature by his industry, in the hope that, under the liberal legislation of congress, he may afterwards be entitled to a right of preemption, is to be regarded as a knavish possessor, by one' whose title was uncertain at the time of the settlement, and that he is to account for the produce of the soil, to a person who, afterwards, on the completion of his title, prosecutes his claim against the possessor. The ultimate fate of the Indian title, was then a matter of doubt and uncertainly. The settler was not disturbed by the claimants under the purchase. If that claim had been ultimately rejected by congress, the settlers would have been unquestionably entitled to the right of pre-emption. The possession alone (says the Code of 1808,) after one year, even in the person of an usurper, if it has been peaceable and uninterrupted, suffices to make him to be considered as a just possessor, and even as master, until the true owner makes out his right. Old Code, 487.
But it has been urged that the testimony of Mr. Talbert proves conclusively that the defendant was in bad faith, because he knew he had no title. The witness states that he was present when Brown demanded the land of Frantum, but it does not appear how long before the suit was brought. He offered to give it up if Brown would let him have the use of it for (wo years. Frantum admitted he had no legal title to the land, hut if the Indian claim failed, he would get a pre-emption. It, is probable this demand was made’ shortly *421before the suit was brought, for Brown acquired the land by purchase in 1818, and after refusing to permit Frantum to remain two years on the land, as a compensation for his improvements, it is not probable he would allow him to remain long without seeking to enforce his rights. But we do not think such evidence sufficient to entitle the plaintiffs to recover the fruits previously to the inception of the suit.
The right of a be^aid^hívalue of hl? inj* on the broad equityfThat no “hPmseif6at the expense of nnotbi6r2. The right of the defendant tobe paid for the improvements, by which the value of the premises was enhanced, depends upon other provisions of the law. It rests on the broad principle of equity, that no man ought to enrich himself at the 'expense of another. If, instead of recovering four hundred arpents of waste land, covered with heavy timber, the plaintiffs succeed in establishing their title to that quantity, of which one hundred and fifty is ready for the plough, together with the convenience of a dwelling and a gin, the result of the industry of his adversary, he cannot justly resist thelatter’s claim for renumeration. If the party evicted be entitled to be paid for edifices erected on the premises, of which the successful party takes possession, no plausible reason can be perceived why he should lose the lasting conquest his industry has achieved .over the forest. If, in the administartion of justice, doubts have sometimes arisen, as to the application of this great principle to cases like the present, those doubts may have arisen in part from the peculiar expressions of our Code. The compilers of that digest copied the language of the Code Napoleon, which in many cases, was wholly inapplicable to the circumstances of a new country. In treating upon this subject, the Code of 1808 says, “if the plantations, edifices or works may have been done by a third person evicted, but not sentenced to make restitution .of the fruits, because said person possessed bona fide, (he owner shall not have a right to demand the suppression of said works, plantations or. edifices, but he shall have his choice, either to reimburse the value of the materials and the price of workmanship, or to reimburse a sum equal to the enhanced value of the soil. Page 104, article 12. The wood plantation, which means in France, nothing more than planting out trees, must be taken here to *422imply any permanent improvement of the soil, and especially the cutting down of trees, and fitting the land for the purposes of agricnl ture.
In regard to the right of being reimbursed for useful improvements and expenses put on land, by which the property has been made more valuable to the owner, the code or law makes little or no distinction between a possessor in good or bad faith. But the sum to be repaid, exceed the°in-Sm property6 °f1° respect to the light to be reimbursed for useful expenses, by which the property has been made more valuable to the owner, the Code makes little or no distinction between the possessor in good or in bad faith. It would seem that the sum to be reimbursed, can in no case exceed the increased value of the property. “Cette obligation, says Pothier, nenait que de cette régle d’équilé, qui ne permet pas que quelqríun s'en richisse aux dépens d’autrui; suivant cette régle, le propriélaire ne doit pas profiler aux dépends de ce possesseur de Vimpense, que ce possesseur a faite, mais il ríen profite qríantant que la chose se trouve augmentée devaleurpar cette impense; il ne doit, done étre oblige ti le rembourser quejusqríti cette concurrence, quand méme le possesseur aurait cléboursé d'avantage.” Poihier domaine de pro. No. 346; 8 Martin, N. S. 609; 2 Louisiana Reports, 174; $ Idem., 543.
The defendant became purchaser at probate sale, of the improvement made by his father, and was thereby subrogated to all the rights which his previous occupancy, cultivation and improvements conferred. If the land had turned out to be public, he would have been entitled to the right of preemption, and is entitled, in our opinion, to the value of the improvement, or the cost of the clearing, so far as it has enriched the plaintiffs by enhancing the value of the land. A part of the improvements was made by himself after his purchase.
Assumingthe amount of rents and profits, as settled by the District Court, to be four thousand four hundred and sixty-two dollars and fifty cents, and allowing in compensation the clearing of one hundred and fifty-five acres, at twenty-five dollars, the least estimate according to the maxim in dubiisid quod minimum est sequimur; and five hundred dollars for the gin and dwelling, as estimated by the District Court, there results a balance in favor of the plaintiffs, of eighty-seven dollars and fifty cents.
*423It is, therefore, adjudged and decreed, that the judgment of the District Court be avoided and reversed; and it is further adjudged and decreed, that the plaintiffs recover of the defendant eighty-seven dollars and fifty cents, with costs in the District Court, those of the appeal to be paid by the plaintiffs and appellees.