
    
      GRACIE vs. GAYOSO.
    
    ofTae/cfend-tory'n action to demand Ms Sprove-noT^prevent them'afte/e-
    thejudge shall admit illegal evi-dencetogoto the jury but after werds charges them not to consi-kingupaver-cause will not be remanded.
    Appeal from the court of the third district, judge of the second presiding.
   Porter, J.

delivered the opinion of the court. This suit has grown out of a decree of this court, in the case of Gayoso vs. Gracie by which the present plaintiff was condemned to deliver up to the defendants a tract of land, which the latter had inherited from their ancestorS. Vol. 1, n. s. 320.

The petition avers that the money paid for the land by the person under whom the plain-c]ajme(] title, Was app|je(J to the discharge of a debt due by the father of the defendants, and that the sale by his executor, which this court annulled because it was not executed in the form prescribed by law, was made expressly to discharge that debt. It also avers that the plaintiff made extensive improvements on the property in good faith, for which he has a right to be reimbursed; and that there was a valuable crop growing on it at the time of eviction, for which the plaintiff is entitled to be paid.

The answer denies that the defendants are responsible to the person who bought from their father’s executor, and avers that if they were, the present plaintiff is not subrogated in his right. It sets up the plea of res judicata— asserts that the plaintiff was a possessor in bad faith, and has no right to claim the value of the improvements made by him, and denies there was any crop growing on the premises at the time of eviction.

The first question for our consideration is that presented by the plea of res judicata, for if found correct, it precludes an examination of other points arising in the cause.

A reference however to the record, in the case of Gayoso vs. Gracie has satisfied us that this defence cannot be sustained. The question as to the right of the defendant to claim ■ * • ¶11* the purchase money is excluded m express terms by the opinion and judgment there rendered. The court in this opinion says: “We cannot in this suit examine the rights of the parties growing out of that contract”—that is^ the contract by which the defendant acquired the land from the vendee of the executor. No claim was made for the value of the improvements in that suit. Consequently they were not passed on. We have already decided in the case of Richardson vs. Packwood, that the failure of a defendant to demand them, did not prevent him claiming them in another action. 1, n. s. 324 & 299.

The judge charged the jury that the plaintiff was not entitled to claim from the defendants the money paid by the person under whom they held. To this opinion the plaintiff excepted ; but as they have not joined in the appeal, nor prayed that the judgment.may be amended, it is unnecessary to examine whether the judge was correct or not. We notice it for the purpose of shewing that this direction to the jury dispenses with the necessity of our deciding the question raised by the defendants as to J , the admissibility of the document D, in relation to the judgment obtained against the executor. The evidence applied solely to the point excluded from the consideration of the jury, and though we are inclined to think the judge did not err, a positive opinion is not required from us, for the decision of the cause, as it stands before the court.

The principal question in the ease, and that which has been most argued before us, is the right of the plaintiffs to be paid for improvements made after the commencement of the suit. We have already expressed fully our opinion of the law on the subject in the case of Richardson vs. Packwood, 1 n. s. 299, and that of the heirs of Vanpradell vs. Donelson & others, lately decided in this court. Our opinion was, that under the provisions of the old code, the good faith of the party in possession did not necessarily cease with the commencement of the suit. The decision of the court is not free from difficulty, but the argument has not produced a conyiction on our minds that our former impressions were incorrect.

Workman for defendants.

But in the instance before us, the appellants contend the plaintiff was in bad faith after the commencement of the suit, because he has acknowledged in his petition he was in good faith previous thereto. We agree with the jury and court below, that these expressions did not necessarily contain an acknowledgment of his bad faith subsequent to the institution of the suit. From all the circumstances of the case» we believe he considered himself the bona fide owner of the property at the commencement of the suit; that he was confirmed in this persuasion after he obtained a decision of the inferior court in his favour, and that he continued in this belief up to the time judgment was rendered against him in this tribunal.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  