¶1The opinion of the court was delivered by
¶2This is an hypothecary action to enforce a mortgage-against certain lands owned by the defendant.
¶3Defendant filed an exception in which it is alleged that, in the-judgment plaintiff seeks to enforce, her mortgage is not recognized or mentioned.
¶4That she has by a casus omissus, or by intendment, waived or renounced her mortgage.
¶5The plaintiff was the ward of J. N. Platt.
¶6At her majority he filed an account of tutorship, showing an indebtedness of 13781.10.
¶7The account was homologated in the usual form, without special reference to the mortgage, by which this amount is secured as to Repayment. '
¶8The tutor’s bond has been duly recorded, and is in evidence.
¶9The nature of the debt secures the mortgage. It exists without, the necessity of its mention in the judgment homologating the-tutor’s account.
¶10*1061The mortgage claimed is extant, and beaTS on defendant’s property.
¶11The defendant pleads in reconvention for the value of her improvements.
¶12They are alleged to be valuable and to have greatly improved the place.
¶13Judgment was rendered in favor of the plaintiff for the sum •claimed, and recognizing her mortgage. To satisfy the amount decided to be due, of the demand in reconvention, it was ordered that plaintiff be allowed one-fourth of the entire proceeds of the sale, not to exceed the amount of her claim, and the defendant the remaining three-fourths of such proceeds.
¶14The plaintiff and the defendant appeal from the judgment.
¶15A number of witnesses have testified to establish the value of the place on which the mortgage bears. The difference in the estimates is great, and vary from small amounts to considerable sums.
¶16To commence ab origine with questions of value, we note that on the 13th day of September, 1881, J. N. Pratt, the mortgage debtor, sold this land for $1000.
¶17It was sold for $3000, in May, 1882; in 1885, for $4960; in 1886, for $6000; in 1887, February, for $8000; in 1887, July, it was sold to •the defendant for $8600.
¶18The foregoing prices can be safely consulted. As the enhancement in the value of the land is not entirely owing to the improvements, but in part to the increase in the value of the land, we will •consult the testimony of the witnesses to ascertain the value of each.
¶19They testify that the improvements were comparatively of little value, when the place was owned by Platt, the judgment debtor.
¶20One of the witnesses for the plaintiff testifies that they were worth • $2.00 an acre; that is, improved the value of the place in that .amount per acre.
¶21This is the highest estimate.
¶22The witnesses for the defendant fix it at considerably less, when the place was owned by Platt.
¶23All the witnesses differ materially about the number of acres of .land cleared since the Platt sale.
¶24Those for the defendant state a larger number than those for the plaintiff.
¶25*1062We conclude that more than two hundred and forty acres were cleared since the sale.
¶26The expense of cutting down trees and clearing the land for cultivation is estimated by different witnesses. Some have fixed the amount at $5 an acre, others at $7, others at $15 and $17.
¶27There is as much divergence in the estimate of the value of the building, improvements and the machinery. Some of the witnesses have fixed it at more than $.3500, others-at- considerably less.
¶28In line with these estimates the witnesses have testified as to a pro rata value of the improvements and of the land.
¶29The value of the land unimproved was estimated at $5 by five of the witnesses, and at $25 improved..
¶30Several of the witnesses have testified to less.
¶31Allowing for the increase in the value of the lands, owing to other causes than the improvements, we conclude that the judgment of the District Court does substantial justice in the estimate adopted.
¶32We do not understand that the principle of pro-rating values between the makers of improvements on lands and claimants of mortgages thereon, both in good faith, is seriously opposed.
¶33Article 3407 of the C. C. is clear upon the subject, and leaves no-room for construction.
¶34See also Oxford vs. Bowan, 43 An.
¶35Judgment affirmed at appellant and appellee’s costs, jointly.