Laizer v. Generes

| La. | Mar 15, 1845

Martin, J.

The plaintiff, evicted from several lots which he had purchased from the defendant, institutes this suit to recover the amount of a note for $750, by him paid, the value of his improvements, and the costs for advertising a monition.

lie had judgment for the first item. There was judgment against him on the second, the court being of opinion that he had been compensated therefor by the rents which he had received during his possession of the premises. Likewise, on the third, the court observing that the deed from the defendant to him showed that the latter had bound himself to pay the costs of the monition. The defendant appealed.

The claim was resisted on the ground' that the amount of the note was compensated by rents received by the plaintiff before the eviction; that the improvements, for which compensation is claimed, were improperly made, after the plaintiff had notice of Connolly’s opposition on the monition, under which the sale by the sheriff and the present defendant was set aside.

The plaintiff and appellee prays for the amendment of the judgment in his favor, by allowing him the value of the improvements, and the expense of advertising the monition.

The counsel for the plaintiff and appellee has relied on the Civil Code, art. 2485, which provides that “ the seller is bound to reimburse, or cause to be reimbursed to the buyer, all useful improvementsand has urged, that in a sale the property passes forever to the buyer; and that, on his eviction, his warrantor has no right to compensate the improvements with the rents.

It appears to us that judgment was properly given in favor of the plaintiff for the amount of the note, which was part of the price of the property sold. Judgment was correctly given in favor of the defendant on the rest of' the case. He was a bona fide possessor, and as such had a claim for the reimbursement of all he expended in useful improvements; and he made the fruits his own until the inception'of the suit. Civil Code, art. 495. It is otherwise with regard to the improvements. Until they are reimbursed to him he has a right to retain the property. Civil Code, 3416.

In the present case, however, the plaintiff ought to have demanded the value of his improvements from the party who recovered the premises, and ought not to have abandoned them until he was sued, or was paid for them. He was too hasty in-quitting the premises before.

Judgment was also correctly given for the defendant, for the costs of the advertisements, the plaintiff having engaged to pay the costs of the monition.

The plaintiff may still claim the value of his useful improvements from the party who has recovered the premises, and taken possession, of them.

Judgmemt affirmed.