*202On Reheaking.
White, J.We granted a rehearing of this cause because we entertained a doubt as to the correctness of our ruling that the plaintiff was not entitled to recover that which might be found due. Upon a reexamination we have concluded that our opinion first expressed should under the facts of this case be modified. The terms of the partnership, the testimony of Sanchez, his approval of the plaintiff’s demand, ah, we now think, will justify the plaintiff in recovering any thing that the partnership could recover were it the nominal, as it is the virtual, through the plaintiff by the sanction of Sanchez, actor in this litigation. As we granted a rehearing without any intimation of the reason by which we were impelled, the whole cause has been, both orally and in writing, re-argued, and we have re-examined it, Without modifying our views, except as above indicated. The capital fallacy in the argument is the claim of plaintiff that he, or the partnership, for they are one for the purposes of this suit, is a third possessor, and entitled to be treated as such. The words third possessor have a definite legal signification, and are not a synonym for the word lessee. The partnership was a lessee of the plantation, and entitled only to the rights of a lessee. What the lessee could claim, the plaintiff can, and no more. This court called attention, in Talley vs. Alexander, 10 A. 628, to the fundamental distinction between the nature and extent of a lessee’s right to claim for improvements and that of a third possessor. Considering then the right of the plaintiff as that of a lessee, we think,
1st. That the money paid for the lease cannot be recovered from the defendant, it being in no sense an improvement. True, it was given in contemplation of the duration of the lease, but the exercise by the bank of its right of mortgage was the doing of a legal act which, if it entailed damage on plaintiff, was quoad the bank damnum absque injuria.
2d. As to the cabins, that they, as we have previously said, are controlled by the terms of the lease.
3d. As to the seed-cane, while we adhere to our original view as to the facts, we think the plaintiff, under the tender made and the admission resulting therefrom, entitled to its value; in other words, to the fifty dollars deposited and fifty dollars in addition.
4th. The stubble-cane was in no sense an improvement.
5th. The pond, ditches, repairs, and bridges, while improvements in one sense, were not so in the legal meaning of the word. They were works done by the lessee for the purposes of the lease. The right to recover for them as against the owner is to be measured by the terms of the lease, which clearly, we think, do not give it. Now, it will not meet the difficulty to say that, although if the lease had lasted the *203lessee could not at its termination have claimed these items, yet as such was not the case, having been made in view of the continuation of the lease, they can be now recovered, or their value, from the bank. The bank stands in the place of the owner, its foreclosure having been the exercise of a legal right paramount to the lease. As regards the bank, the rights of plaintiff are to be tested as if the full period of the lease had expired. This reasoning answers the erroneous view which the case proceeds on, which is, that when one leases a property which is subject to mortgage, the right is thereby acquired, without the privity •of the creditor, of preventing him from enforcing his rights, or claiming damages if he does.
6th. The right which we recognized in the partnership to the boiler, the plaintiff under the opinion we have above expressed can avail himself of. The difficulty lies in the proof on the subject. The rule established by C. C. 2726, where the lessee retains, is the payment of a fair price. The bank, we think, has by its answer and defense elected to keep, but there is nothing in the proof to enable us to fix what was a fair price at the date of the sale. There is proof as to the cost, and estimates as to the enhanced value of the property. We shall therefore be compelled to remand the cause for the ascertainment of the fair price of the boiler on the day of the bank’s purchase.
It is therefore ordered that our former decree be set aside. It is now ordered, adjudged, and decreed that the judgment below be amended so as to condemn the defendant to pay the sum of one hundred dollars, with legal interest from judicial demand; that the right of plaintiff to recover a fair price for the boiler put on the property be and the same is hereby recognized ; that the case be remanded for the sole purpose of fixing the price of the boiler in conformity with the views above expressed; that in all other respects the judgment below be affirmed, costs of both courts to be borne by the defendant.