delivered the opinion of the court.

We concur with the chancellor in his finding that the facts in evidence establish the mistake arising in the agreement for partition of the lands of William Robinson, deceased, and that the lands in controversy were, and were intended to be, allotted to the appellant, but that a mistake was made in preparing the written agreement, by reason of which these lands were not described among those allotted to him. This being true, it follows that the writing should be corrected so that it may express the true agreement, unless the present holder is a-bona fide purchaser of the land.

Without reference to that portion of the testimony which con-. *801sists of evidence of notice in pais to Jones, we are of opinion that he cannot sustain the position of a bona fide purchaser for this reason : He accepted from James P. Robinson, who was his debtor, and who was one of the heirs-at-law of "William Robinson, deceased, a conveyance in severalty in fee of certain lands in this state (including the lands now in controversy), and of others in the state of Alabama, in trust to secure certain debts then due him by the said James P. Robinson. The Mississippi lands were afterwards conveyed by said, Robinson to Jones in payment of the debt they secured, and a litigation arose over the lands in Alabama. In that suit all the heirs-at-law of William Robinson, deceased, were parties, and it was there made to appear that the whole estate had been divided, and that only by virtue of the partition could Jones claim the entire interest in the lands mortgaged to him by J. P. Robinson. Aside from the partition, James P. Robinson was only a tenant in common with the other heirs, in consequence of which Jones found himself in such position that he must either claim the whole interest in the lands under the partition, or only the undivided one-fifth interest which descended to his debtor as heir-at-law. Before final decree, he was informed by the pleadings and proof that the mistake, to correct which the present bill is exhibited, had been made in the act of partition. In truth the court in Alabama by its decree subjecting the whole interest in the lands mortgaged to the payment of Jones’ debt, also decreed that the lands now claimed by the non compos mentis in this state should be assured to him. It is insisted for Jones that the court in Alabama had no power to make any decree in reference to lands in Mississippi, and also that it was not sought by that proceeding to correct any error in the act of partition. However this may be, it yet remains true that Jones has secured in Alabama a decree against the whole interest in the lands in that state mortgaged to him by J. P. Robinson, with full knowledge of the fact that the one-fifth interest therein belonged to the present complainant, unless it passed to James P. Robinson by the act of partition, and he also knew that in the partition a mistake had occurred as to the Mississippi lands, the result of which would be, if uncorrected, that the non *802compos mentis would fail to get a part of tbe lands for which he had yielded his interest in those in Alabama. It would be contrary to the plainest principles of justice to permit Jones, with full knowledge of the facts, to take, because of the partition, the interest in the Alabama lands which had descended to the present complainant, and then hold the lands in this state against the partition. Having acted in reference to a part of the subject of the partition and derived advantage from it to the detriment of the non compos, he must he held as ratifying the whole act and can occupy no better relation to the land here than could James P. Robinson if the title yet remained in him.

The court erred in applying the rule announced in Staton v. Bryant, 55 Miss. 261, for the measurement of rents to be decreed against the defendant in possession. The rule there announced was for the protection of one who, without title, occupied in good faith the lands of another, believing himself to be the owner, and against whom the plaintiff seeks to recover the reasonable rental value of the property. The manifest hardship of compelling a defendant in such attitude to respond for what the lands might have rented for, in the absence of evidence as to what they were actually rented for, led the court to announce the rule there formulated, the justice of which commends it for application in all similar cases. But the rule is applicable only where the demand for rents is in the nature of a quantum meruit. It has no place where, as here, the com-olainant takes upon himself the burden of showing exactly what sums have been received by the defendant and is content to receive them in discharge of his claim. It cannot be unjust to compel restoration of what has been actually received, for the defendant is but restoring to the complainant his own, and this is the end and purpose of remedial justice.

Decree affirmed, except as to rents, on which it is reversed and remanded, to be further proceeded mth in the comi. below.