Pearce v. Frantum

16 La. 423 | La. | 1840

Bullard, J.,

delivered the opinion of the court on the rehearing.

In the opinion first given in this case, the court held : 1st. That the defendant was liable for fruits from the institution of the suit, and not before. 2d. That he was entitled to the costs of improvements left upon the land, by which it was rendered more valuable to the owner, in compensation of fruits.

1. The first proposition has not been much combated in the argument upon the rehearing. We think it perfectly clear, that with respect to fruits, the possession of more than a year suffices to give the possessor a right to be maintained in his possession, until a better right be shown, and that he makes the fruits his own before the judicial demand : Code of 1808, p. 478, arts. 23, 24, 25.

The Spanish law provided that whether the party evicted good or bad faith he wasnotbound to deliver up the premises to the owner, until he shall have been paid for the expenses incurred on account of them.

2. The right of Frantum to be compensated for the valuable improvement upon the land, by clearing it, and particularly for that part of the clearing which had been made by his father, has been again strenuously resisted. We have again given to the whole subject an attentive consideration, and have examined such authorities as are within our reach at this place.

The character of Frantum’s possession, his liability to restore fruits upon eviction, and his right to be paid for useful improvements, are to be determined by the provisions of the Code of 1808, and the Spanish law then in force. Admitting that the provisions of the Code itself left it doubtful whether Frantum was or was not a possessor in bad faith, in that sense which would deprive him of a right to claim for improvements, yet, the 44th law, 28th title of the 3d Partida, appears fully to sustain the court in the position first assumed, to wit: that “in respect to the right to be reimbursed for useful expenses, by which the property has been made more valuable to the owner, the Code makes little or no distinction between the possessor in good or bad faith.” The words of that law of the Partida are : “ Men may incur expenses on account of other persons’ houses or lands, not by erecting new works there, lout by making necessary repairs, or doingother things there, by which the estate is benefited. In that case, we say that if such expenses were necessary, they who made them, may and ought to recover them back, while in possession of the estate upon which they expended them, whether they hold in good or in bad faith ; and, though the owner may evict them by a judgment of court, they will not be obliged to deliver him the house or estate, until he shall have paid the expenses incurred on account of the same.”

These principles were derived from the Roman law. Pothier supposes two cases, one in which the party evicted had paid off incumbrances upon the property, and the other in which he had incurred expenses for the preservation of the thing, which the owner himself would have been obliged to make, other than those merely conservatory. In these two cases he says, the law does not distinguish between the possessor in good or in bad faith. Cujas thinks, that not withstanding the rigor of the law, thus apparently restricting the right to claim for expenses, to those which were necessary and not merely useful, yet the possessor in even bad faith, is entitled tobe reimbursed, so far as he had rendered the property more valuable, upon the great maxim of equity: Neminem mquum est cum allerius detrimento locupletari. It is true it was a controverted point among the jurists, but all , » , . , t „ . , . . appear to agree that the possessor m bad faith may claim in offset of rents or fruits, while he is condemned to pay the enhanced value which his improvements have added to the property : Pothier, Domain de Proprihte, No. 343, et seq.

g0) the pos. ae.s?or ln ba<1 in offset of rents heiscondemned ^'vafue which his improvements added to the pro-l,erty‘

Merlin, after treating this subject exprofesso, and in a manner as usual with that author, which leaves little to be said on either side, and after discussing the opinions of Cujas, Favre and other illustrious doctors, opinions not always in harmony with each other, sums up his conclusions in the following manner: “We may, therefore, lay it down as a settled rule, that the proprietor who sues for an immoveable (un fonds) never ought to enrich himself at the expense of the possessor, whether in good or in bad faith, no matter in what manner the maxim ought to be applied.” 1 Repertoire du Jurisprudence, verbo Amelioration.

But if tiie possessor, before judicial demand and after a quiet and uninterrupted possession of more than a year, is to be regarded as the owner so far as concerns the fruits, and to be maintained in possession until a better right be shown, according to the language of the Code of 1808, p. 478, at what time is he to be considered as being in bad faith, so as to deprive him of the value of useful improvements made before such judicial demand 1 It will be recollected, that a great part of the improvements in this case, were made between the years 1811 and 1821, before the suit was brought. Mr. De Malville, in discussing the part of the projet of the Code Napoleon, analogous to ours on this point, regretted the vague manner in which the articles were drawn up, as likely to give rise to numerous questions, as to the point of time at which the good faith of the possessor should be considered having ceased ; that by the previous jurisprudence it was well settled, that the possessor was reputed in good faith until judicial demand, and it was carried so far, that if the true proprietor suffered his suit to be dismissed, (laissait premier instance,) the possessor’s good faith was considered as restored. “ It is very certain,” adds this author, “ that to make the period of the restitution of fruits depend upon the good or bad faith of the possessor, would be to give rise to a thousand contestations; and how could this bad faith be proved, that is to say, the opinion which the possessor had, that his possession was unjust ? Must parole evidence be admitted to probe his conscience?” Discussions of the Code JVapoleon.

The son may owner of his mem^on P5and evicted'after h!s purchase, and is the same light, righto °be°paid for valuable imEis VfatherS’and previousjmsbTsto be paid for useful improvements is a real party Evicted Son^untiFhe isremunerated,

Rut it has been urged that the improvements made before the institution of the suit, ought to be compensated by the fruits and advantages derived from the place before that period. It is obvious, however, that this would be but an indirect way of compelling a restitution of fruits before the judicial demand : for if the fruits were already his, as the presumed owner of the land, why should he be charged with them as an offset to valuable and permanent improvements put upon the place, while he was ift law the presumed owner,

It is further contended, that the present defendant did not become, by the probate sale, subrogated to any right of his father to be paid for the improvements made upon the land, the couit rust decided.

The defendant, it appears, has acquired all the right of his father, resulting from his previous improvement. If such improvements would have entitled the father, under the act Qongress 0f 1814, to a pre-emption right, in the event of the land turning out to be vacant, then the purchaser would , , .* have been entitled to purchase as his assignee ; and if m the event of the father’s eviction, he would have been entitled to ke Pa'^ ^01 improvement, that right, in our opinion, passed to the son. The right to be paid for useful improvements is a real right, that is to say, the party evicted may retain possession until he is remunerated.

We, therefore, conclude, that the judgment first pronounced ought to be maintained, and it is ordered accordingly.