On Rehearing.
LAND, J.[15] In plaintiff’s application for a rehearing our attention was called to the fact that the answer of the Blakewood heirs to the appeal was not filed “at least three days before that fixed for the argument" as required by Act No. 103 of 1908, p. 161. Gartner v. Richardson, 123 La. 195, 48 South. 886; Union Sawmill Co. v. Arkansas Southeastern R. Co., 123 La. 555, 49 South. 173.
We have referred to the dates, and find that said answer was filed on the third day, or two days before that fixed for the argument. Hence the Blakewood heirs cannot demand the reversal or amendment of any part of the judgment. See, also, article 890, Code of Practice 1870.
As to section 40, the demand of the plaintiff was rejected, and this tract was decreed to belong to Eugene Wheat, Mark Oharrier, and Cleophas Oharrier.
[14] The judgment cannot be amended, as between them and their coappellees, the Blakewood heirs.
The appellate court cannot amend the judgment below as between or among the appellees. Coleman v. Cousin, 128 La. 1094, 55 South. 686.
Wheat and the Charriers had no legal title to the N. y2 of section 40, and the evidence is clear that their authors abandoned the premises in 1869 or 1870.
Our conclusion is that our former decree was correct as to the titles to sections 38 and 39. As to the N. y2 of section 40, we conclude that, as the case is presented on appeal, the plaintiff should have judgment for an undivided half interest therein. As .the judgment below cannot be amended in fa*557vor of the Blakewood heirs, the allowance to them for Improvements and betterments on section '39 cannot be increased. As to the N. % of section 40, the question of improvements is still open. There were five old cabins on both tracts, worth $75 each, according to the estimates of the judge below. As there is doubt as to the location of these cabins, a fair adjustment would be to charge plaintiff with one-half and three-eighths of one-half, of the total valuation of $375, making $164.50 due by plaintiff to the Blakewood heirs.
In our former decree we estimated the value of plaintiffs’ proportion of the right of way of the defendant railroad company at $150.
The conclusion we have reached renders it unnecessary to remand the case to enable the Blakewood heirs to prove how much of the N. % of section 40 was possessed by them and their authors.
The tax receipt filed by the Blakewood heirs is too vague to identify the lands on which the taxes of 1892 were paid by their father, and as they had abundant opportunity on the trial below to connect the tax receipt with the particular tracts of land now in controversy, we conclude that the case should not be remanded for that purpose, especially as the tax sale to the state was not assailed in the pleadings on the ground of the payment of the taxes for which the land was sold, and the point was not raised in the court below, or in this court, except in argument at the bar.
For the purpose of recasting the decree, it is ordered that the judgment below and our former decree herein be set aside, and it is now ordered, adjudged, and decreed that as to the titles of the respective parties to sections 38 and 39 the judgment below be affirmed.
It is further ordered, adjudged, and decreed that the plaintiff, the Louisiana Land Company, be recognized as the owner of an undivided one-half of the N. Yz of section 40, in township 1 N., range 7 E.
It is further ordered that the Blakewood heirs, named in the judgment below, do have and recover of the plaintiff, the Louisiana Land Company, the sum of $164.50 for value of improvements.
It is further ordered, adjudged, and decreed that the plaintiff, the Louisiana Land Company, do have and recover of the Louisiana Railway & Navigation Company the sum of $150 in full compensation of plaintiff’s right, title, and interest in and to the right of way of said railroad company traversing said sections 38, 39 and the N. Yz' of section 40.
It is further ordered, adjudged, and decreed that the judgment below as to the S. Yz of said section 40 be affirmed.
It is further ordered that the rights of the defendant railroad company against the warrantors named in its answer be and the same are hereby reserved.
It is further ordered, adjudged, and decreed that, except as expressly sustained by the present decree, the demands of the plaintiff be rejected, and the suit be dismissd.
It is further ordered that the costs of suit and of this appeal be paid as follows: One-fourth by the plaintiff, one-fourth by the heirs of Blakewood in solido, one-fourth by the heirs of Charrier in solido, and one-fourth by the Louisiana Railway & Navigation Company.