delivered the opinion of the court. The plaintiffs state they are heirs of ' J Thomas Daquin and Francois Daquin, who, in their life time, were owners of a tract of land in *675fhe parish of Plaquemine, known by the name of Chene Vivant, having forty-five front, with the ordinary depth, and eighteen Slaves. -
That after the death of Francois Daquin, his daughter Marie Antoinette Daquin remained without any tutor legally appointed to herf although her uncle Thomas Daquin pretended to act as such.
That the said Thomas Daquin in his own name, and as tutor to his brother’s daughter did* in the month of January, fSlO, pray for an order of sale of the property which he held in common with her, but although the said sale was ordered it never was effected in any legal manner, nor indeed.in any manner at all;— and that when Thomas Daquin died in Sep, tember, 1810, the plantation and slaves were still his property, and that of his brother’s daughter and heir.
The property since thát time has passed through several hands, and the respective vendors are cited in warranty, and before the court. By the answers they have put in, the title of the plaintiffs is denied. They aver the land was legally sold, ajid that all the right of he petitioners is by that sale vested in them.
*676' They father plead, that the property was sold to pay the debts of the plaintiffs’ ancestors, and tjjat ifreC0very is had in the present suit, , . . ., v ■ this money must be repaid.
And finally, that the defendants are borm Jide possessors and as such are entitled to re* tain the fruits they may have gathered on the property, and to be paid for any improvements they may have put on it.
The title on which the defendants rely is derived from two sales, one made by thecourfof probates at the request of Thomas Daquin, the ancestor of one class of the heirs now before the court, and únele to the other. The second was on a writ issuing from a eourt of ordinary jurisdiction at the suit of those who had originally sold to the ancestors of the plaintiffs.— The first requires the most particular attention, for on its validity, as will be hereafter seen, the legality of the second depends.
On the 19th of December, 1808, Whitten Evans, of Philadelphia, by his attorney in fact, sold to Thomas and Francis Daquin the plantation now sued for, and eighteen slaves, for the sum of $23,500, payable in six equal and annual instalments. This sale contains the pact of non alienando, and one Charles Bor-*677rome Dufau became surety that the purchasers would Comply with the contract
Shortly after the date of this sale Francois Daquin died, and by the request of the surviving partner and brother, Thomas Daquin, and the advice of a family meeting, the plantation and slaves were put up at auction, and adjudicated to one Charles Massicot, through his agent Dufau, the same who was surety in the contract between Evans and the Daquins Massicot denied the authority, and refused to sanction the purchase. The plantation remained in the possession of Daquin’s heirs for nearly two years when Dufau applied to the parish judge, had himself declared the buyer in place of Massicot,, and was put in possession.
The validity of this conveyance to Dufau has been assailed on various grounds:
1st. That there was not such a family meeting deliberating in regard to the alienation of the minors’ property as the law required.
2d. That the minor heir of Francois Daquia was not assisted hy a tutor.
3d. That the property was sold for less than the price of estimation.
4th. That it was stricken off to Massicot, not to Dufau, and that the latter had no right to take the purchase for himself
*6785th. That the property never was sold. The . r l J ⅝ signature of the parish judge, the tutor of the’ fnjnor? and that of (he surviving partner being • , wanting-to the act of adjudication.
. We are strongly inclined to the opinion that all those objections are well taken, and supported by the evidence before us; but we deem it unnecessary to examine any but the two last* In the process verbal of the sale which took place on the 6th of January, 1810, it is stated that the property was adjudged to Ctis. Borrome Dufau,for and on account of Charles Massicot, on the same credit the vendors obtained from Evans, for $23,260.
Two years after, viz: on the 26ih of March, 1812, a memorandum is inserted in the process verbal of the sale, stating that Massicot having renounced the purchase made by him, the judge considered C. B. Dufau as the purchaser, and had put him in possession.
It appears to us the parish judge had no authority to do this, and that such an act on hi» part did not transfer the property to Dufau.— We leave untouched the question whether Du. fau having bought,without authority, could not be compelled to take the property at the demand of the owners or their representatives ^ *679but admitting that he coul ’, there certainly ex-is ted no right in him without their assent to be •ill. T%T 11-considered as the buyer. * No contract had m-tervened between them. The land was not adjudicated to him. The process verbal of the sale declared it had been bought by another. It is most clear then, that without their consent no title to it could pass to him, and as they were minors that consent could be given only in the manner which the law has prescribed for the alienation of their property.
It does not appear to have been ever given, and admitting this objection could be got over, the other appears to us insurmountable. The process verbal of the sale is neither signed by the vendor, nor thco tutor, nor by Thomas Da-then^Iive„ Th§ salt therefore ./was ins of tbena^ties, and thejiHge who acted’ as auctioneer. "The t? tie yet remains in the vendors. Tbe objection that might perhaps be made under other circumstances, to the representatives of Thomas Daquin, that he acquiesced in the sale while alive, is destroyed by the fact that he too died before Dufay obtained an order from the parish judge to be putin possession, and that he never assented to die change of purchasers.— *680No implied assent arising from any act of the ... . . plaintiffs, or their silence during their minority could give validity to thes*e proceedings. 5 Martin, 372, 8 ib. 222, 11 ib. 709, 12 ib. 317.
Dufau, soon after he was put in possession, sold the property to Montegut and Hebert. To this act of sale, Evans, the original vendor, became a party, and accepted their engagement to pay him. Failing to comply with their promise, an order of seizure and sale was taken out, and the premises and slaves now in dispute, sold. It is unnecessary to enquire into the regularity of these proceedings, for conceding they were perfectly so, they could only transfer the right which Montegut and Hebert had from Dufau, and the invalidity of Dtt-iau’s title has bee>~‘¿lrearíy exjilaine¿ 11 " •'
T^ same obserfc^ns ajíply fó the ⅜⅛¾⅜⅛® set up that this was a partition, not ⅛ sale.— Considering it as a licitation, the want of the signatures of the vendors, and the party under whom the defendant claims not being the purchaser, is equally fatal to his title.
The most important question iñ the cause arises out of the claim set up by the defendants to be paid for the improvements, and not to be responsible for the fruits they have gathered.— *681By an agreement on record, the parties have consented to waive all questions respecting the amount of the improvements until after the de-cisión of the eourt on the titles. But we have been pressed in the argument to express our opinion on the principles which should govern the court below in adjusting the claims growing out of this part of the case.
The plaintiffs admit the defendants were possessors in good faith, and the question is what are the rights of such a possessor, in case of eviction by the real owner.
It is deemed unnecessary to enquire how the question stood in Spain, or how it would be decided by the laws of that country, believing, as we do, that our code has introduced provisions on this subject incompatible with any other previously existing.
This case must be governed by the provi* sions of the old code, and we cite from it:
Page 10'i, art. I, it is declared “the pro» duce of the thing does not belong to the simple possessor, and must be returned with the thing to the owner, who claims the same, ex-, cept in case of the detainer having possessed bona fide” •
*682Page 104, art. 12, it is again provided, & * ’ . - J.n “ nevertheless, if the plantations, edifices, or Works may have been done by a third person, evicted, but not sentenced to make restitution of the fruits, because said person possessed bona fide, the owner shall not have a right to demand the suppression of the said works, plantations, or edifices, but he shall have his choice either to reimburse the value of the ma» terials and the price of workmanship—or to reimburse a sum equal to the enhanced valúa of the soil.”
Page 480, art 30, there is a further provision, “that the possession of him who possesses with a good conscience has also this effect, that while he is ignorant of a better right to the thing than his own, he enjoys and makes his own the fruits which he gathers, and not only those which he reaps from the ground by his own industry, but likewise those which the ground' produces without culture; and if ithap-pens that the thing is evicted from him, he shall restore no part of what he enjoyed before the demand, but he will be obliged to restore the fruits which he reaped after the demand.
It would be difficult by positive legislation *683to provide more clearly for the case now be- . fore us, than the enactments just cited, do.— They expressly declare that the bona fide pos- , i . sessor makes the fruits his own—and they as explicitly declare that in case of eviction the owner must reimburse him the value of improvements. There is no grounds therefore for this court to say the one must be compensated by the other—if we did, we should certainly violate the commands of the law—for the possessor would not make the fruits his own if we decreed he should pay for them ; and where would be the difference between his paying for them in money at the time of eviction, or in paying for them in improvements by which the estate is benefitted, we are unable to perceive.
These provisions also settle another question much debated among the civilians, whether the owner was obliged to reimburse the value of the materials and workmanship, or merely the enhanced value of the land. They give the choice to the owner.
The judge below was of opinion the plaintiffs should recover the property. In that opinion we concur—as we do also in the view he took with regard to the ameliorations; but we can*684not agree with him in regard to the defen- ° cited in warranty not being paid the a* mount Gf t^e purchase money before the plain* tiffs are put in possession. He seems to think they had no right to stop the entry of the petitioners, until the money is paid. It is now the settled jurisprudence of the court, that when the property of minors is sold, to pay the debtsof theirancestors,from whom that property is derived, they cannot recover the property on the ground of the proceedings being informal, without repaying the- money which has been applied to their benefit. In the present case the several vendors being cited in warranty, the parties stand before us in the same situation as if the first purchaser was in possession, and the suit had been instituted against him.
In the present instance the righf of the several vendors cited in warranty has not been passed on in the court belov>; nor is there any evidence before us of the value of the improvements ; the case therefore cannot be finally decided on—it must be remanded for investigation on these points, and the facts once ascertained, one judgm ent,can settle the righisofal! the parties before us.
Derbigny for the plaintiffs, Mazureau and Qrymes for the defendants.It is therefore ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided and reversed; that the , . , ... be remanded fora new trial, and that the ap-pellees pay the costs of this appeal.