The judgment of the court was pronounced by
Rost, J.The plaintiffs sue to recover a tract .of land in the possession of, and cultivated by tho defendant. The.answer admits the title of the plaintiffs, but avers that the defendant has placed valuable improvements upon the land, for the value of which he is entitled to he reimbursed before the judgment of eviction .can be executed against him. There was judgment in favor of the plaintiffs for the land, and against them for the sum .of $234, the valuó of the improvements placed theieon by the defendant. The plaintiffs have appealed.
The defendant filed an amended answer, prayingfor an order of survey and a trial by jury, after the .cause had been set down for trial. These applications were rejected, and the defendant took a bill of exceptions to the opinion of the judge. The survey was unnecessary, as the plaintiffs were willing to take a survey previously made for the defendant, by a surveyor of his own choice. After the case had been set down for trial, and while it stood in that situation, the defendant could no longer claim a trial by jury.
It is in evidence that the land in controversy had been offered for sale, and was subject to entry. It is .also shown that this land was enclosed between *146other traéis belonging to the defendant. Under the rule established in the case of Jenkins v. Gibson, 3 An. 203, the defendant was a trespasser, and is not entitled to indemnity for his improvements. The land is proved to be of inferior quality subject to overflow, and but imperfectly cleared. Whatever labor has been expended upon it by the defendant inures to the benefit of the plaintiffs, and we do not consider that the the evidence would justify us in allowing the rents claimed.
It is, therefore, ordered that the judgment in this case be amended, so as to disallow the defendant’s claim for the value of the improvements put by him upon the land ; ánd that, as amended, it be ¡affirmed, with costs.