value. Van Ormer v. Harley, 102 Ia. 150 (71 N. W. Rep. 241).

Sec. 414. Improvements by trespasser having power of eminent domain. Improvements made by a railroad company upon land used by it for a right of way without any legal right, do not pass by a tax title of the land or by a decree against the company cancelling its interest therein. Illinois Cent. R. Co. v. Le Blanc, 74 Miss. 650 (21 So. Rep. 760). The court say: "This court and the courts of Michigan, Iowa, Illinois, Minnesota, Wisconsin, Oregon, Pennsylvania, Alabama, Florida, Texas, and other states have held that the general rule as to things affixed to the freehold by a trespasser or a person entering tortiously, is not applicable as against a body having the power of eminent domain, and entering without leave and making improvements for the public purpose for which it was created and given such power. In Railway Co. v. Dunlap, 47 Mich. 456 (11 N. W. Rep. 271), the court say: The railroad company, whether rightfully or wrongfully, laid this track while in possession, and for purposes entirely distinct from any use of the land as an isolated parcel. It would be absurd to apply to land so used, and to a railroad track laid on it, the technical rules which apply in some other cases to structures inseparably attached to the freehold. Whatever rule might apply in case of abandonment, it is clear that this superstructure was never designed to be incorporated with the soil except for purposes attending the possession; and in a proceeding to obtain a legal and permanent right to occupy the land for this very purpose there would be no sense in compelling them to buy their own property.' This case is cited by this court with approval in Railway Co. v. Dickson, 63 Miss. 380. Delivering the opinion of the court, Judge Campbell says: The railroad company was a trespasser in constructing its road upon land over which it had not acquired the right of way; but it still had the right to acquire the right of way unaffected by the liability incurred for its trespass. The trespass committed is not involved in the determination of the due compensation. The continuing right of the company to secure the right of way in accordance with its charter, and the nature of its entry on the land, and annex

ing chattels to the soil, distinguish the case from that of a trespasser who affixes chattels to the freehold; and the rule of the common law, established when railroads were unknown, does not apply.' In Daniels v. Railroad Co., 35 Ia. 129 (14 Am. Rep. 490), where, after a recovery in ejectment by the owner of the land, and the railroad company instituted condemnation proceedings, the court held that the value of the improvements put on the land by the railroad company were not to be considered in assessing the damages. In Justice v. Railroad Co., 87 Pa. St. 28, there had been a judgment in ejectment in favor of the landowner, and the court held that the recovery did not include the chattels put upon the land by the company and the structures they compose. To the same effect are Jones v. Railway Co., 70 Ala. 227, and Railway Co. v. Adams, 28 Fla. 631 (10 So. Rep. 465; 14 L. R. A. 533), where. the mandate was withheld by the supreme court for a reasonable time to allow the railroad company to institute condemnation proceedings.

Sec. 415. Improvements upon mortgaged land. Permanent improvements upon mortgaged land which become a part of the realty, whether placed there by the 'mortgagor or one claiming under him, inure to the benefit of the mortgagee, and subsequent mortgagees can only claim the surplus if any remains, after the first mortgage lien is satisfied. Mutual Benefit Life Ins. Co. v. Huntington, 57 Kan. 744 (46 Pac. Rep. 19).

INFANTS AND INSANE PERSONS.

EPITOME OF CASES.

Sec. 416. Validity of deeds of infants and insane persons. In South Carolina it is held that the deed of an insane person is voidable but not absolutely void; that where a purchase is made from such a one in good faith without knowledge of the incapacity and no advantages taken, for a full consideration, which goes to the benefit of the lunatic,

courts of equity will not interfere. In case such a transaction is set aside, the lunatic can be charged only with such benefit as he actually received. Creckmore v. Baxter, 121 N. C. 31 (27 S. E. Rep. 994). The appointment, by a minor, of an attorney to sell and convey real estate, and a conveyance by the attorney under such appointment, is not void but merely voidable and capable of ratification by the infant on attaining his majority. Coursolle v. Weyerhauser, 69 Minn. 328 (72 N. W. Rep. 697). In order to justify setting aside the contract of an insane person not under guardianship on the ground of insanity, it must appear that the contract was made with the knowlege of such incapacity or such information with respect thereto as would lead a prudent person to the belief of the incapacity. Rhoades v. Fuller, 139 Mo. 179 (40 S. W. Rep. 760). To set aside the deed of an insane person, it is not necessary to prove that there was fraud or other wrong doing inducing its execution; and such a deed may be set aside without returning the consideration, at least when it does not appear that a return in specie is practicable. oner, 53 Neb. 511 (73 N. W. Rep. 937).

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Wager v. Wag

Sec. 417. Disaffirmance-Duty of infant. Knowledge of the fact of the execution of a deed by himself may be imputed to an infant if, at the time of its execution, he has arrived at such years of discretion as that, in the ordinary course of events, he can be reasonably supposed to take an account of his action, and of incidents occurring in his career; and although, upon his becoming of age, such a deed does not operate as an absolute estoppel upon him, yet he is then, and from that time, chargeable with knowledge of the legal effect of his deed and must thereafter, within a reasonable time, disaffirm his act, or he is bound by his deed, even though there be no actual adverse possession thereunder. Bentley v. Greer, 100 Ga. 35 (27 S. E. Rep. 974).

Sec. 418. Judicial sale of infant's lands. Under Ky. Stat. 1894, §§ 2034, 2039, it is held that the real estate belonging to infants cannot be sold or made liable to charges of any kind until the character and necessity of such proposed liability for the benefit of the infant has been consid

ered and approved by a court of chancery authorized to decree such sale. Dixon v. Hosick, Ky. (41 S. W. Rep. 282). Overruling, Jarrett v. Andrews, 7 Bush. 313. For application of provisions of Kentucky Civil Code as to the sale of infant's land for reinvestment, see Loeb v. Struck,

Ky. (42 S. W. Rep. 401). Ky. Civ. Code, § 489, construed and applied-sale of insane person's land. Buckler v. Rees, 100 Ky. 336 (38 S. W. Rep. 492). A decree for the sale of an intestate's lands rendered against infants without the appointment of a guardian ad litem, is not void but erroneous and their remedy is by appeal, under Ky. Civ. Code, $ 745. Oliver v. Park, Ky. (39 S. W. Rep. 423). It is proper for the guardian of a lunatic to ask the court for instructions concerning the administration of his trust; he has no title to his ward's property and aside from the power to make necessary repairs and improvements, can exercise no control over the estate unless authorized by the statute; and upon a review of the statutes of that state, it is held in New Jersey that a court of equity has no power in a proceeding by the guardian to which the ward is not made a party, to authorize a conveyance of real estate held in trust by such ward. Cooper v. Wallace, 55 N. J. Eq. 192 (36 Atl. Rep. 575).

INSURANCE.

PLACE v. ST. PAUL TITLE INSURANCE AND TRUST CO.

(67 Minn. 126.)

Insurance of title to land-Construction of policyDefects of title excepted. Held, that the phrase, “Tenancy of the present occupants," stated in a title insurance policy as a defect in or objection to the title against which the insurer does not insure, must be construed as meaning the tenancy which arises through the occupation of temporary possession of the premises by those who are tenants in the popular sense in which the word "tenant" is used. The phrase does not include the claim of a person who, asserting ownership in fee as against the title insured, is in actual adverse possession at the time the policy is issued.

Insurance of title to land-Construction of policyCondition precedent to a right of action upon the policy. Held, further, that a condition precedent to a right of action upon the policy, which prohibited a recovery unless the insured had contracted to sell the estate or interest covered by the policy, and the title has been declared, by a court of last resort of competent jurisdiction, defective or incumbered by reason of a defect or incumbrance for which the company would be liable under the policy has no application to a case where the land is held by another party in actual adverse possession, and the insured has lost it absolutely by reason of a defect in the insured title.

(Syllabus by the Court.)

COLLINS, J.

66

Sec. 419. Statement of the case. Two questions only are presented by this appeal; both depend upon the construction to be placed upon language used in a title insurance policy issued by defendant company to plaintiffs as mortgagees of certain real property. The contract, as stated in the policy, was, among other things, to indemnify, keep harmless and insure plaintiffs from all loss or damage, not to exceed a stated sum of money, sustained by reason of defects in the title of the mortgagors in the mortgaged estate, excepting such as were set forth in an attached schedule, and subject, also, to the stipulations and conditions made a part of the policy. In the schedule an item, stated as Tenancy of the present occupants," was mentioned as a defect in or objection to the title against which the company did not insure; and among the stipulations and conditions of the policy was one that: right of action shall accrue under this policy unless the insured, or those claiming under him as aforesaid, shall have been actually evicted under an adverse title not mentioned or referred to in the above Schedule B, or unless there has been a final judgment upon a lien or incumbrance not mentioned or referred to in said Schedule B, under which the title of the insured will be divested by sale under judgment or foreclosure, or unless the insured has contracted to sell the estate or interest insured, and the title has been declared, by a court of last resort of competent jurisdiction, defective or incumbered by reason of a defect or incumbrance for which the company would be liable under this policy." From the complaint it appeared that, at a foreclosure sale of the mortgaged premises,