Appellees admit that there is not sufficient proof in the record on which to base a judgment against appellant for rents and revenues. But they earnestly contend that there is proof, consisting of appellant's own admission, that appellant received the following amounts for timber removed from the property, viz.:
Timber sold to Jim Frazier, ........................... $150.00 Cord wood cut and sold paper mill, 200 cords at $2.00, ................................. 400.00 Balance due on timber, collected from Jack Hammons, ....................................... 100.00 ------- Total value of timber proved, ......................... $650.00
And appellees argue that they are entitled to a judgment against appellant for the benefit of all the heirs, in which they would share in proportion to their interest in $650 received by him according to the above-mentioned items.
The court below found that, in the state of the record, it was impossible to determine the respective rights of the litigants, except upon the question of the annulment of the partition sale. We approved this finding in *Page 935 our original opinion herein. A further examination of the record has convinced us of the correctness of the ruling.
Plaintiffs together own two-sevenths interest in the property of the succession of their deceased grandfather, John B. Hennen. The real defendant in this case is Virgil A. Hennen, owning a one-seventh interest in the succession. The other heirs owning the remaining four-sevenths interest in the succession are merely nominal defendants. None of them filed an answer nor otherwise took any part in the case. The appellant is Virgil A. Hennen, and the appellees are Jason B. Hennen and Mrs. Eva Hennen, tutrix of her minor children Pauline Hennen and J.W. Hennen, the plaintiffs.
As shown in our original opinion, the testimony is not clear as to the net amount appellant received for the 200 cords of pulp wood, since he appears to have paid for the cutting. Nor is it clear concerning the $100 that appellant received as the balance due for some other timber. Appellant speaks of having deposited a part of the proceeds of this item to the credit of the estate in the bank at Choudrant, and also of the payment of certain debts due by the succession which were not listed on his final account, the inference being plain that appellant used this money, in whole or in part, for the benefit of the succession.
Appellant also placed a number of improvements on the land, for the value of which he reconvened. But the value and the nature of the improvements are not shown with the clearness that would entitle appellant to offset them against the claims asserted against him by the appellees. *Page 936
And the real owners of the property are the seven heirs of John B. Hennen, the respective interests of whom must be determined in any settlement among them.
Appellees vigorously argue that appellant, as a possessor in bad faith, cannot be permitted to offset his claim for improvements against their claims for rents and revenues, since the alleged improvements are not such as an owner may order removed from his land. Appellees cite in support of their argument Voiers v. Atkins Bros., 113 La. 303, 36 So. 974, and Boagni v. Stamen, 139 La. 851, 72 So. 417.
The cited cases are authority for the legal proposition that the possessor in bad faith is entitled to recover from the owner only the value of the improvements which are separable from the soil which the owner elects to keep, and not the improvements which are inseparable from the soil, such as irrigation canals and drainage ditches.
But even the possessor in bad faith is entitled to recover from the owner, in addition to the value of the removable works he elects to keep, the expenses incurred in the preservation of the property. Civ. Code, art. 2314; Voiers v. Atkins Bros., referred to supra.
And there are set up in appellant's reconventional demand claims for improvements which the owners may eventually elect to keep, and claims for certain expenses incurred in preserving the property. Appellant ought not to be precluded from establishing, if he can do so, the validity and the value of such claims.
For the reasons assigned, our original decree herein is reinstated and made the final judgment of the court. *Page 937