Davis v. Wilcoxon

Buchanan, J. This case has been twice before our predecessors. See 5 An. 583, and 7 An. The only question presented for our decision at this time, is the measure of compensation to be allowed defendant for the improvements put by him on the land which plaintiffs have recovered in the judicial partition. The plaintiffs and appellants contend that they have the option, under Article 500 of the Code, of paying defendant the value of the improvements, or the enhanced value of the soil, caused by such improvements. •We do not regard this as an open question, under the decision of the Dis- • trict Court, as affirmed by the Supreme Court, in 5 An. In rendering judgment, the District Judge used these words: “ The defendant, as a bona fide possessor, is entitled to recover the value of his improvements on the part of the land from which he may be evicted” ; and the decree was “ that a partition be made according to the rights of the parties, as settled by this decision.” The Supreme Court, on appeal from this judgment, say: “ The District Judge has made the proper disposition of the claim for improvements ; and we are of opinion his judgment is correct in every respect.” And the judgment of the District Court was accordingly affirmed. The subsequent decision of our predecessors in October, 1852, merely remanded the cause for further proceedings. In the reasons for judgment, the court speak, it is true, of there being a possibility that the plaintiffs may have a right to elect to pay the enhanced value of the land, instead of the value of the improvements. But the suggestions they throw out, followed by no decree upon the point, cannot be taken as overruling what had already been solemnly and finally decided in this cause. It is therefore adjudged and decreed, that the judgment of the District Court be affirmed, with costs.