On Application nor Rehearing.
We are asked to allow to the defendant in this suit the value of the improvements put by him on the property which he was to occupy free of rent, as the evidence in the record shows such value. Conceding that proof of such value has been introduced and establishes the claim, it does not follow that plaintiff is to be condemned to pay under the showing made for such improvements. As a condition precedent, it should have been established that plaintiff would not permit their removal. There is no evidence to prove that the defendant offered to remove those improvements. The testimony, on the contrary, shows his determination not to move his person, effects, or property, and to remain in possession of the land to the end of his life.
We think it is just to leave to both parties the assertion, vindication, and liquidation of the rights which they uphold the one against the other; the plaintiff to claim value of occupancy, and the defendant to •claim value of improvements, in subsequent proceedings.
Eliminating, as we have done, from the testimony that portion of it which was admitted to show authority to occupy the land, “ during life,” we construe the remaining evidence which is considered as legal as, proving nothing beyond a tenancy at will.
Rehearing refused.