On Kehearing.
BY the WHOLE COURT. ST. PAUL, J.The case of Winn v. Strickland was heretofore appealed under the number 22011 of our docket (147 La. 115, 84 South. 515), and was then remanded upon certain issues which have since passed out.
The relevant facts are substantially these:
Plaintiff and defendant owned a certain plantation in common. Plaintiff owed defendant $2,000, and defendant had also joined plaintiff in mortgaging the whole plantation for a debt of $3,000 due by plaintiff alone to one Mrs. Miller.
For reasons satisfactory to themselves, plaintiff executed a deed of sale to defendant of his one-half, for the nominal consideration of $5,000, which they declared to be less than the value thereof, and on that account plaintiff reserved a usufruct or life estate in the one-half so transferred.
Defendant declares that the nominal consideration of $5,000 represented the $2,000 due her by plaintiff and the $3,000 Miller mortgage with which her half of the property was also burdened, and that the deed was executed in order to secure her as to these. She admits (in her testimony) that the deed was not to be recorded for the time being, and (in her answer) that there was an understanding that plaintiff might take back his deed and his property on paying her the $2,000 and taking up the Miller mortgage.
But plaintiff afterwards disappeared and was thought dead; and so defendant, to secure herself, recorded her deed. Shortly afterwards plaintiff reappeared.
Up to this time the parties had been friendly. But now they fell out; and plaintiff then brought suit to have the deed declared simulated and obtained by fraud. The nature of the alleged fraud is not set up fully in the pleadings, but from the evidence it appears that two deeds were executed which were supposed to be duplicates, though not so in fact; for the deed delivered to defendant and recorded by her contained only a reservation of usufruct as aforesaid, whilst the supposed duplicate which he retained reserved, in addition thereto, a reversionary interest in the property in case *247defendant died before plaintiff; said reservation being written by defendant in her own hand and signed by her.
In the original petition plaintiff prayed to have the deed declared a simulation (and for certain moneys and damages, etc., all now abandoned). And by supplemental petition plaintiff prayed in the alternative for recognition of his life estate in the property; but never at any time did plaintiff pray for recognition of a reversionary interest in the property or even make mention thereof in his pleadings until the case was remanded, and as hereinafter mentioned. The judgment first rendered below, and appealed from under No. 22011 aforesaid, did, however, award it to him; but this was ultra petitionem, and perhaps crept into the signed judgment by some oversight; for the minute entry of that judgment makes no mention of it.
Meanwhile Mrs. Miller had foreclosed on her mortgage, and defendant had bought in the property at that foreclosure. This raised the question whether under her own statement defendant had assumed the Miller mortgage, because, if so, then she could not, by permitting the foreclosure, shut out plaintiff’s life interest in the undivided half. Manifestly, however, if the deed was a mere simulation, as plaintiff contended, the consequence would be the reverse; for in that ease the deed would cease to be, and defendant’s title under the" foreclosure would be complete.
[5, 6] Accordingly when the case was remanded plaintiff discontinued his demand for the annulment of the deed, and all other demands except “for the recognition of the life estate or usufruct and the reversionary clause,” which last (as we have said) was never at any time prayed for, and must therefore be considered as having already been abandoned. The admission in evidence of the deed containing the clause aforesaid did not have the effect of enlarging the pleadings, as it was otherwise admissible, to wit, to show the alleged simuluation and fraud. The reoffer thereof on the second trial was a mere formality, and the failure of defendant to repeat the formal objections already made cannot be construed as a consent to enlarge the pleadings. Her final and general objection to all of plaintiff’s testimoney was clearly meant to cover all documents about 'which he was interrogated, which were objected to at the time.
[2] Moreover, throughout this whole proceeding plaintiff relies strongly upon the pleadings, testimony, writings, and acts of the defendant as an estoppel on which to uphold his claim. As 'these all had reference only to the deed which defendant held and recorded, plaintiff cannot extend them to include another deed which she has never at any time acknowledged as constituting the agreement between them.
“In no event can an estoppel be extended beyond the natural and reasonable import of the acts or conduct relied on to create it.” 21 O. J. 1206.
[1] The case therefore stands squarely upon the answer of the defendant, and raises the one question:
“Did the deed accepted and recorded by defendant bind her to discharge the Miller mortgage?”
And we think it did. For it is clear that the deed was given in order to secure defendant against the Miller mortgage, whilst at the same time preserving plaintiff’s life interest in his one-half; and there was but one way in which it could possibly avail for both purposes, to wit, by paying the Miller mortgage. In plain words, if it was not the common intent that the defendant should pay the Miller mortgage, then the transaction between herself and plaintiff was perfectly vain and idle.
*249Or, to put it another way: For $5,000, of which $2,000 was paid plaintiff and $3,000 would be paid to the mortgagee, defendant might have plaintiff’s half interest in the plantation subject to plaintiff’s life estate; but, if allowed to ignore the deed, she gets the half interest unburdened by the usufruct for exactly the same price. This she cannot do. For, by her own admission, the amount of the mortgage formed part of the consideration mentioned in the deed; and certainly she cannot pretend that she might be entitled to the land under the deed without paying the mortgage. So that, whether originally assumed by her or not, yet when she elected, by recording the deed, to claim the land as her own under the deed, she then bound herself absolutely towards plaintiff for the payment of the mortgage.
“Where one has an election either to ratify or disaffirm a conveyance, he can either claim under it or against it, but he cannot do both; and, having adopted one course, he cannot afterwards pursue the other.” 21 O. J. 1210, 1211.
The case of Strickland v. Winn was tried and decided by the trial judge on the theory, which accorded with his judgment in the case of Winn v. Strickland, to wit, that Mrs. Strickland had not assumed the “Miller mortgage” mentioned in that case.
Our reversal of that judgment and holding that Mrs. Strickland had assumed -the payment of that mortgage now eliminates from the issues of this case her claim to be reimbursed the value of her one-half interest in the Oaks plantation sold for the payment of his alleged debt; and we need mention that no further.
At the outset it may be well to say that defendant (Winn) was in exclusive possession of the aforesaid plantation up to about the end of the year 1915, and that plaintiff (Mrs. Strickland) has been in exclusive possession thereof since about the beginning of the year 1916.
This suit was filed in February, 1916. It is for the ownership and possession of some 33 different articles, alleged to have been attached to the realty as part thereof and to have been- carried away by defendant when he removed from the premises, or in the alternative for their value.
Plaintiff also claims three horses and two blankets as her personal property, also carried away at the same time; also one-half the value of three iron beds and of one threshing machine or separator, belonging to the parties in common, and sold by defendant. She further claims the value of certain trees destroyed by defendant, and $100 for borrowed money.
She asks an accounting for her share of the net proceeds of the crops for the years 1911 and 1912, during which they farmed the place together; also one-half the rental value of the plantation for the years 1913 and 1914, and the whole rental value for the year 1915. She also asks for an injunction restraining defendant from interferring with her exclusive right to the premises, and for a sequestration of the articles removed if found.
[3] The defense is substantially the general issue, enlarged in 'brief and argument to the effect that, being usufructuary for one-half, he cannot be held to an accounting for waste until the expiration of the usufruct. This, of course, cannot possibly apply to those articles not attached to the realty. Even as to these, however, the plea is highly technical and not well founded. The usufructuary who commits waste on the estate may be expelled with or without compensation according to circumstances; and, if he wishes to prevent the re-entry of the owner, he must repair the waste without delay. O. O. arts. 621, 622.
In effect, that is all the owner is now asking defendant to do, viz. pay the cost of repairing the damages done by him to the estate. Moreover, as defendant will doubtless claim the value of his usufructuary rights *251(say, half the rental value of the premises) for the time during which he has been kept out of possession, and plaintiff will doubtless urge her claims as a set-off thereto, we think the ends of justice will be best subserved by deciding at this time what those claims are. “Interest rei publics® ut sit finis litium.”
The sheriff located and seized the following objects, which were duly appraised and released to defendant on bond, to wit: Mare Eureka, $140; two iron cisterns, $30; one bathtub and one heater, $40; one closet, $7.50; galvanized gutters, $12; one culvert, $5; two blankets, 50 cents — total, $235. All of which the trial judge found to be the property of plaintiff.
The sheriff also seized the mare Lena, $90, likewise bonded by defendant. The trial judge found that this animal belonged to plaintiff, and that she died whilst thus in defendant’s possession, but through no fault of his; but whether defendant be none the less liable for her value he did not decide, nor do we, as that issue is not presently involved. Some bundles of wire and one machine shed were also seized, but could not be identified.
[4] The trial judge saw and heard all the witnesses; and no manifest error has been pointed out in any of his findings of facts. We therefore adopt them.
He rejected plaintiff’s claims as- to the iron beds and as to 16 other articles, for reasons assigned, which appear to us satisfactory. He allowed for 11 other articles practically the value claimed by plaintiff, to wit, $364. He allowed $140 for the mare Gyp, sold by defendant; $50 for trees destroyed; $35 for the cost of replacing the bathtub and heater; $75 for the half interest in the separator; $25.05 as plaintiff’s share in the crop of 1914; and $100 for money loaned — the total of which is $789.05. He fixed the rental value of the plantation for 1915 at $300, of which plaintiff is entitled to one-half, say, $150.
He rejected the claim for the proceeds of crops of 1911 and 1912 as being prescribed, even if anything were due, as to which he found no proof. He rejected the claims for rent for the year 1913, on the ground that defendant was to have only a share in the crop, which was a failure.
He maintained the writ of sequestration as to the mare Lena, and the other articles which he found belonged to plaintiff. He also maintained the injunction (in part); but that must now be dissolved.
Decree.
The judgment appealed from in Winn v. Strickland is therefore reversed, and it is now ordered that there be judgment in favor of plaintiff Hezekiah Winn and against defendant Mrs. Dorothy Strickland, recognizing said plaintiff as entitled to a life estate or usufruct in and on an undivided one-half interest in the following real property situated in the parish of Jefferson Davis, to wit; The Oaks plantation — which is more particularly described in an act passed between the parties hereto dated May 31, 1912, and recorded in^Conveyance Book A, page 332 et seq., of the Records of said Parish of Jefferson Davis, on March 14, 1913.
And the judgment appealed from in Strickland v. Winn, is therefore amended so as to read as follows, to wit: That plaintiff Mrs. Dorothy Strickland do have judgment against defendant Hezekiah Winn for the full sum of $939.05, with legal interest from February 20, 1916, until paid; . that she be recognized as the owner of the following articles seized by the sheriff, to wit: The mare Lena; the mare Eureka; two iron cisterns; one bathtub and one heater, with pipes and fittings; certain galvanized gutters ; one closet; two blankets — as to all of which the writ of sequestration is maintained, but is otherwise dissolved. It is further ordered that the writ of injunction *253herein issued he dissolved. And as thus amended said judgment is affirmed.
It is further ordered that the costs of appeal in both cases and the costs of the lower court in Winn v. Strickland be borne by Mrs. Dorothy Strickland, and that the costs of the lower court in Strickland v. Winn be paid by Hezekiah Winn.
OVERTON, J., recused. PROVOSTY, O. J., and LAND, J., dissent. LECHE and THOMPSON, JJ., take no part.