by a finding and judgment of the Circuit or Superior Court that one of the said parties has been adjudged a person of unsound mind and that said insanity is probably permanent, when said court shall enter a decree that said estate shall be and become an estate in common, which said action may be prosecuted by the guardian of said person of unsound mind or by the husband or wife, as the case may be, who is of sound mind." Laws 1899, p. 109.

Sec. 408. Inchoate interests. A wife who seeks to hold free from the operation of an execution sale of her husband's land, her inchoate interest therein, must allege particular facts showing that the judgments rendered were not such as bound her interest. Davis v. Clements, 148 Ind. 605 (47 N. E. Rep. 1056; 62 Am. St. Rep. 539). The inchoate right of a wife under Ind. Rev. Stat. 1894, § 2652, in land held by her husband as a cotenant, may be barred by a partition sale in an action to which she was not a party, notwithstanding Rev. Stat. 1894, § 2660, providing that no sale of the husband's property by virtue of any decree to which she shall not be a party shall affect her rights, as that section applies only where the wife is a necessary party, which she is not in such action. Haggerty v. Wagner, 148 Ind. 625 (48 N. E. Rep. 366; 39 L. R. A. 384). Where a husband and wife joined in a conveyance of her real estate to a trustee for the purpose of having the land divided between them by reconveyance by the trustee of separate parcels to each, and the deed to the trustee recited that "each of the grantors does release any and all interest in the tract so conveyed to the other which now or might hereafter exist on account of the marital relations of the two," it was held that the husband was barred from asserting rights as heir to the land reconveyed by the trustee to the wife, under Ind. Rev. Stat. 1894, § 2651. Leach v. Rains. 149 Ind. 152 (48 N. E. Rep. 858). .

Sec. 409. Effect of divorce on real property rights. A divorce obtained by a wife terminates her husband's homestead rights in her property. Kern v. Field, 68 Minn. 317 (71 N. W. Rep. 393; 64 Am. divorce is a bar to any action between the parties thereto to

St. Rep. 479). A decree of

enforce any property rights growing out of the marital relation. Barnett v. Barnett, N. M. (50 Pac. Rep. 337). Citing, Thompson v. Thompson, 132 Ind. 288 (31 N. E. Rep. 530); Kamp v. Kamp, 59 N. Y. 212; Roe v. Roc, 52 Kan. 724 (35 Pac. Rep. 809; 39 Am. St. Rep. 367); Stahl v. Stahl, 114 Ill. 375 (2 N. E. Rep. 160); Patton v. Loughridge, 49 Ia. 218; Mott v. Mott, 82 Cal. 413 (22 Pac. Rep. 1140.) Construing and applying Cal. Civ. Code, § 146, regulating the disposition of property upon dissolution of the marriage by divorce, which provides that "if a homestead has been selected from the separate property of either it shall be assigned to the former owner of such property subject to the power of the court to assign it for a limited period to the innocent party," it is held that such limited period cannot exceed the life of the innocent party. Huellmantel v. Huellmantel, 117 Cal. 407 (49 Pac. Rep. 574). Under Kan. Civ. Code, § 643, whenever a divorce is refused because the parties are in equal wrong or for any other cause, the court may make an equitable division and disposition of the property of the parties or either of them, whether the title thereto be in either or both. Raper v. Raper, 58 Kan. 590 (50 Pac. Rep. 502).

IMPROVEMENTS.

Sec. 410.

EPITOME OF CASES.

Occupying claimants. Where the rightful owner of real property seeks relief from one who is bona fide in possession under color of title, and who has made valuable, lasting, and beneficial improvements, which enhance the value of the estate, such owner must do equity, by compensating the occupant to the extent of the benefits which accrue to the owner by reason of such improvements; but he is not liable for work performed, or for something done, which does not benefit the property, or enhance its value. Bacon v. Thornton, 16 Utah 138 (51 Pac. Rep. 153). One making permanent improvements on land as if his own,at a time when there was reason to believe his title good, is to be allowed their

value, so far as they enhance the value of the land; but if, when making them, he has notice, actual or constructive, of the superior right of another, he cannot be allowed them. One having notice of facts rendering his title inferior to another's, who, by mistake of law, regards his title good, cannot claim for permanent improvements. Williamson v. Jones, 43 W. Va. 562 (27 S. E. Rep. 411; 64 Am. St. Rep. 891; 38 L. R. A. 694). Where the plaintiff in ejectment has occupied the land under color of title for many years, making improvements thereon, a defendant claiming to own the land, may elect as to whether he will take the land and pay its increased value by reason of the improvements, or abandon the land to the plaintiff, upon payment by him of the value which it would have, had no improvements been made or placed upon the property. McKensie v. A. P. Cook Co., 113 Mich. 452 (71 N. W. Rep. 868). Where a defendant in an action of ejectment seeks to assert a right as an occupying claimant, he must bring himself within the statutory provision applicable thereto. Province v. Lovi, 4 Okla. 672 (47 Pac. Rep. 476). Under Ala. Code 1886, §§ 2702, 2703, an allowance may be made to a defendant in ejectment for the planting of an apple orchard as a " permanent improvement." Donchoo v. Johnson, 113 Ala. 126 (21 So. Rep. 70.) Where one is entitled to compensation for improvements made to a farm on account of having set out an orchard thereon, in estimating his compensation, the value of the orchard when in full bearing and the care and attention bestowed upon the trees by him should be considered. Lightner's Ex'x v. Speck, (28 S. E. Rep. 326). Particular case in which

Va. the right of an occupying claimant to recover for improvements made by him in good faith is upheld. Thompson v. Thompson, 53 Neb. 490 (73 N. W. Rep. 943).

Sec. 411. Improvements by purchasers. A purchaser at an assignee's sale whose title fails without his fault, is entitled to recover the reasonable value of any improvements placed by him upon the land in good faith during his occupancy under the purchase. Thompson v. Buckner, Ky. (40 S. W. Rep. 915). Construing and applying the statute of Mississippi giving the right to compensation for

improvements where the person making them "shall claim the premises under some deed or contract of purchase made in good faith," it is held that a purchaser at a guardian's sale which is void because never reported to, or confirmed by, the the court ordering it, may recover the value of improvements made by him in the honest belief that his title was good. The measure of recovery in such a case is the amount the market value of the land is enhanced by the improvements. Hicks v. Blakeman, 74 Miss. 459 (21 So. Rep. 7). Improvements made by a vendee in possession under an executory contract of purchase, if permanently attached to the land, become a part of the realty and belong to the vendor in case the vendee subsequently declines to comply with his contract of purchase and he has no right to remove them from the land. Pomeroy v. Bell, 118 Cal. 635 (50 Pac. Rep. 683). Citing, King v. Johnson, 7 Gray 279; Westgate v. Wixon, 128 Mass. 304; Lapham v. Norton, 71 Me. 83. Improvements made by a railroad company upon land purchased by it for a right of way, with constructive knowledge of a prior vendor's lien thereon, cannot be subjected to the payment of such lien. First Nat. Bank v. Thompson, 116 Ala. 166 (22 So. Rep. 668). The court say: "The general rule is, when fixed improvements are placed upon real property, they become realty, and subject to an existing mortgage or lien; but it would be inequitable to apply this rule when the right of eminent domain exists, and parties in good faith, under a purchase of land from the owner in fee, enter into possession, and subject the property to the same uses to which it might have been subjected by ad quad damnum proceedings. The most that a mortgagee or lienee can claim in such cases is full compensation for the lands appropriated. The powers of a court of equity are adequate to ascertain and decree the amount to be paid as damages or compensation. The case of Railroad Co. v. Booraem, 28 N. J. Eq. 450, is an authority directly in point; and the conclusion reached rests upon sound equitable principles, and is sustained by authorities cited."

Sec.

412. Improvements by tenants. Improvements by a widow having a life estate in lands in which her husband owned the fee, will be presumed to be intended for

his benefit.

Culleton v. Keune,

Ky. (39 S. W. Rep.

511). A lessee cannot remove a building erected by him unless his lease gives him a right to do so. Cal. Act. March 30, 1874, applied. Board of Education v. Grant, 118 Cal. 39 (50 Pac. Rep. 5). A provision in a lease which gives the lessee a right to make improvements, to a certain extent, and in which the lessee covenants" for himself, his heirs, administrators and assigns" to pay the lessee for such improvements at the expiration of the lease, does not give the latter any lien on the leased land for the improvements placed thereon, but his claim is merely a personal claim against the lessor which cannot be enforced against one to whom the land is conveyed after the termination of the lease and surrender by the lessee. Gardner v. Samuels, 116 Cal. 84 (47 Pac. Rep. 935; 58 Am. St. Rep. 135).

Where one

Sec. 413. Improvements by cotenants. cotenant in common improves a part of the land he is entitled to have it allotted to him upon partition at a valuation made without the improvements. Pipkin v. Pipkin, 120 N. C. 161 (26 S. E. Rep. 697). A tenant in common who voluntarily improves the estate is entitled to compensation for such improvements upon partition; but he cannot maintain an action of assumpsit to recover any part of the cost of such improvements from his cotenants, and the statute of limitations does not run against his equitable right for compensation until a partition is asked. Ballou v. Ballou, 94 Va. 350 (26 S. E. Rep. 840; 64 Am. St. Rep. 733). A tenant in common who is also a lessee of his cotenant cannot be allowed in partition for improvements made upon the property in the course of his tenancy, which enhanced its value, and were made with the knowledge, but without the consent, of the cotenant, when the effect of such improvements was not to protect or preserve the property, but to aid the tenant in carrying on a business then prosecuted by him upon the premises, the increased income from which was not shared with the cotenant. Cosgriff v. Foss, 152 N. Y. 104 (46 N. E. Rep. 307; 36 L. R. A. 753). A cotenant, out of possession, who asserts a claim for rent against a cotenant in possession must account to the latter for improvements made by him, which have increased the rental