The judgment of the court was pronounced by
Host, J.This case was originally a petitory action, in which the Supreme Court gave a final judgment in favor of the plaintiff for the land claimed, and *348remanded the case for further proceedings as between Morancy and the plaintiff, in relation to the fruits and improvements, and as to all questions between Morancy and the warrantors. See 3 Robinson, 119. The court below gave judgment in favor of the defendant against Win. B. Minor, on his warranty, for the sum of $2000, with five per cent interest thereon per annum from the 1st of January, 1842, uatil paid; this judgment to be credited with the sum of $506 67, with ten per cent interest thereon per annum, from the 7th of February, 1832, until paid. The court also gave judgment in favor of the defendant, Lowry, and against the plaintiff, for the balance due for the value of the improvements over that of the fruits, in the sum of $1559 30, and also in the further sum of $506 67, with ten per cent interest thereon, from the 7th of February, 1832, till paid, being, say the court, the amount to be refunded to Wm. B. Miañar, as having been paid by him on the price of the land recovered by the plaintiff. From this judgment the plaintiff alone has appealed.
Our attention has first been called to two bills of exception, taken by the plaintiff during the trial below. The first was taken to the opinion of the eourt admitting O. B. Cobb as a witness, on the ground that he was interested in the event of the suit, and otherwise incompetent to prove the facts intended to be established by him. It is proved by the declaration of this and other witnesses, that the property in controversy is nowin the joint possession of Lowry and the wife of this witness ; that they cultivate it together, and that Coll himself controls and ships the crops. The husband cannot be a witness either for or against his wife. Ciyil Code, 2260. The judge erred in admitting the testimony of this witness, and we will consider it as not in the record.
The other bill of exceptions was taken to the opinion of the court admitting testimony, relating to improvements made since the judgment of eyiction. The question presented by this .exception was fully examined in the case of Pearce v. Frantum, 16 La. p. 423, Th.e court in that case came to the conclusion that, under the general principles of the civil law, and the enactments ,of the laws of Spain, the party evicted was entitled to be indemnified for the useful improvements by him made on the property during the whole time of his possession, This doctrine .appe.ars t.o haye been acquiesced jn ever since. Our impression is, that the rule has been laid down too broadly; but there can be uo doubt that the party evicted is .entitled to be paid for necessary improvements. The improvements in this case were clearings, levées and ditches, without which the land could not have been brought into cultivation, so as to yield the rents and profits which the plaintiff now .claims. These were necessary improvements, and the judge did not err in admitting eviden.ee in relation to them.
The defendants and their vendors, holding under a sale by the Court of Probates, must be considered as possessors in good faith up to the day of the judicial demand, and as such accountable for the fruits from that day only. But the .court erred in considering that, from 1836 to 1840, there was not exceeding five .acres of cleared land, The testimony establishes that, since 1836, there has been about the same quantity of cleared land upon the tract, that whiph caved into the river being annually replaced by new clearings. The plaintiff has .claimed $200 a year for rent, and the lowest estimate of the witnesses entitles him to that sum, from .the judicial demand to the delivery of possession.
It is also proved that the defendants removed from the land a dwelling house a»d other buildings, worth, as they stood, from $800 to $1000. Tbe fact that £,he spot .on which those buildings stood has since caved into the river, gapnot *349give to the defendants a title to the materials taken by them; and the same principle which entitles them to indemnity, for improvements made since the judicial demand, requires that they should pay the value of those materials, which, from the evidence, we .take to have been $400.
In relation to the improvements, it is proved that 62 acres of land have been cleared and fenced by the defendants. The court below allowed them $25 an aere, making the sum of $1550.
The levée made at right angles to the river, two lots above the land in controversy, qannot be charged as an improvement upon it. It was necessary to protect and bring into full cultivation the lot on which it was made. Owners of land below it, although they may he benefitted by its erection, cannot be made to contribute to it, against their consent. The cost of making a ditch along that levée, and of oleariugall the ditches afterwards, was also improperly allowed by ■the court below. On the trial, the witness, Bemiss, stated that he had heard and corroborated the testimony of ,Cobb, and that he was well acquainted with ■the premises, .and with the Jeyées and ditches made on the land in controversy. Taking the statements of Cobb as part of the evidence of Bemiss, it is shown that there are 62 rods of levée, and 287J rods of ditching, properly chargeable .as improvements. The leyée is proved tobe worth $5 per rod, and the ditches $1 per rod., making together the-sumof $592 .50.
Judgment was properly given in fav.or of the defendants for the note of :$506 67, paid to the minors now represented ,by the plaintiff, by the purchasers ,at the probate sale. James Beard, their present tutor, was .the husband of their mother when the proceeds of that note were received. He was bound, in solido, with her for .the acts of the tutorship, and has acknowledged, since his appointment, that the amount of the note had been duly received- The court erred in allowing interest at the rate .of ten per cent per .annum upon it; the plaintiff is only entitled to legal interest. The principal, and interest from the judicial demand to the day .of the rendition of this decree, will amount to :$889 78, which added to $1550, for clearing, .and $592 50 for improvements, will make the sum due .the defendants $3032 28. Against this sum the plaintiff is eptitled to .compensate nine years’ rent dne on the 1st January Jast, .at .the rate ,of $200 a year, and $400 for the yalue of the materials removed from the land. This will leave in favor of .the defendants .a balance of $832 28, with legal interest from this date, subject to the payment of rent to .the plaintiff from the 1st ef January last, .at the rate.of $20.0 .a year.
It is therefore ordered, that the judgment rendered in this case between the plaintiff and the defendants be reversed. It is further ordered, that the defendant, Lowry, recover of the plaintiff the sum of $832 28, with legal interest from this date, subject to a credit at the rate of $200 a year from the 1st January, 1847, till paid. It is further ordered that no writ of possession issue in fayor of the plaintiff until this judgment is satisfied.. It is further ordered that, .if the balance due the said Lowry under this decree is not paid or tendered within 60 days from notice to the jolaintifF, the defendant, Lowry, may issue his .execution against the plaintiffs for the same. It is 'further ordered, that the plaintiff pay the costs of the court below; those of this appeal to b.e paid by the (defendants,.