thereof. This decision, of course, applies only to the parties now before the court. If other parties should be made to the case hereafter, the latter would not be bound thereby; or if upon the trial of the case the facts should be materially different from the facts now before us, as to the intention and surroundings, of the testator at the time of the execution of the will, our construction of the will would perhaps be different." Georgia C. & N. R. Co. v. Archer, 87 Ga. 237. Effect of Election by Minor to Disaffirm Conveyance of Land Made Prior to the Taking. In proceedings to condemn land, one H. was permitted to file a petition alleging that before the proceedings she was owner of one of the lots sought to be taken, and conveyed the same to defendant's grantor; that at the time of the conveyance she was a minor, and that she had elected to disaffirm the conveyance; and praying that the damages assessed for the taking of such lot be paid to her, less the consideration received by her at the time she conveyed the lot. The court ordered the entire compensation assessed for both lots to be paid to defendant. Held, that as to H. the judgment was a final one from which a writ of error would lie. The court said: "It is the policy of the law to settle once for all, so far as possible, in the condemnation proceedings the amount of damages resulting from the taking. The statute expressly provides that the commissioners shall fix the compensation to be paid, not only to the owners, but to all parties interested in the lands taken, as well as all damages accruing to such owners or parties interested in consequence of the condemnation of the same. See Eminent Domain Act, § 6. In Crane v. City of Elizabeth, 36 N. J. Eq. 339, the court had under consideration a statute, if anything, less comprehensive than the statute of this state, in that it required compensation to be made only to the owner or owners of lands and real estate taken for the improvement; ' and yet in that case it was decided that the compensation is to include the value of all the interests burdened by the public easement, and is to be paid to the owner of the land if no other claimant intervenes, and, if in any such case such owner ought not, in equity, to receive the whole, timely resort must be had to the court of chancery, which will see to the equitable distribution of the fund. It was said in the course of the opinion, that the proceedings were in the nature of a proceeding in rem,-a taking, not of the rights of designated persons, but of the thing itself; and if in any case the designated owner of the land is not entitled to receive the fund, equity will, at the instance of any interested complainant, direct its proper distribution. Under our statute, we think the relief may be granted in the original action upon a proper showing. In no other way can the provision requiring the rights of the interpleader to be fully considered and determined be carried out. In the case at bar, petitioner did intervene in the court below, and in her petition shows that she has an interest which ought to be protected. The statute allows the interests of minors to be taken by virtue of the proceedings. The fact that the record title was in plaintiff in error may have relieved the railroad company from making plaintiff in error a party defendant in the first instance, but, she having voluntarily appeared, the action of the court below entirely ignoring her claim cannot be sustained. In the case of Chandler v. Jamaica Pond Aqueduct Corp., 125 Mass. 544, relied upon by defendant in error, one Ward granted the Aqueduct Corporation the privilege of laying logs and wooden pipes on his land, in consideration whereof, and for five dollars in money paid by Ward, the company, in turn, deeded to him certain other lands, to have and to hold the same to the said Ward, his heirs and assigns, as long as said corporation shall keep pipes in his land as aforesaid and no longer. Afterwards the title acquired by Ward passed to Chandler. Thereafter the corporation instituted proceedings for the purpose of having the same land condemned for its uses, and upon the trial, claimed that by the Ward deed, which, as we have seen, was a part of Chandler's claim of title, only a base fee was conveyed, and that the company had a right to rely upon this fact in reduction of damages. The court, however, decided against such claim, upon the ground that the possibility of such interest was too remote and contingent to be the subject of an estimate of damages by a jury, and could not be allowed. It was further held that the owners of the fee had the right to recover the entire value of the land, even if a part of it was held by them under the Ward deed, and they had only a base or determinable fee in it. So in this case, as we understand counsel, the claim is that, notwithstanding the voidability of the deed made by intervenor, the grantee is entitled to full compensation for the land condemned. This would have the effect of entirely cutting off the right of plaintiff in error to revoke the deed made during her minority, a result we cannot entertain. Although it may be that a minor cannot avoid his deed during the continuance of his minority, he may, nevertheless, enter upon the deeded premises, and receive the rents and profits thereof until he arrives at an age when he has the capacity to affirm or disaffirm the deed at his election, or the infant may, by his guardian or next friend procure the appointment of a receiver for the purpose of collecting the rents and profits of the premises. Mathewson v. Johnson, Hoff. Ch. (N. Y.)560; Bool v. Mix, 17 Wend. (N. Y.) 132; 1 Washb. Real Prop. *306; Edgerton v. Wolf, 6 Gray, (Mass.) 453: Chandler v. Simmons, 97 Mass. 508. "The right of entry was a present existing right in petitioner at the time the petition in intervention was filed. In this respect the case is dissimilar from the case of Chandler v. Jamaica Pond Aqueduct Corp., supra. The filing of the petition should have been taken as an election on the part of plaintiff in error to assert such right. And, under the statute, it should have been fully considered and determined, and it was error to enter final judgment awarding the fund to the defendant, while the plea of intervenor was undisposed of. As we have seen, courts should be vigilant in protecting the rights of minors; and if the court below had been of the opinion that it was necessary for plaintiff in error to resort to an equitable action to enforce her rights, it should have preserved the fund until her rights could have been adjudicated in such action. But we cannot think such an action necessary. Ample power seems to have been given the court in the condemnation proceedings, and the fact that she was still a minor at the time of the trial did not justify the court in passing over her petition in silence, and awarding the entire fund to defendant in error. The judgment directing the fund to be paid to defendant in error, is accordingly reversed, with directions in the court below to proceed in accordance with the views expressed in the opinion. Under our statute, plaintiff in error reached her majority a few months after the trial in the district court. Jackson v. Allen, 4 Colo. 263. The disabilities under which she was laboring at the time of the trial no longer existing, we apprehend the court below will find no difficulty in fully determining the rights of the parties." Hutchinson v. McLaughlin, 15 Colo. 492. Death of Land Owner-To Whom Right of Action Descends.-Upon the death of the owner of land condemned after the right of action accrues, such right is a chose in action recoverable by his administrator, and does not descend to his heir. Harshbarger et al. v. Midland R. Co. (Ind. April 20, 1892), 30 N. E. Rep. 1083. Where Compensation Paid to Life Tenant.-Although under C. S. C. chap. 66, sec. 11, as amended by 24 Vic. chap. 17, sec. 1, a railway company could obtain a good title in fee simple to expropriated lands by a conveyance from the tenant for life thereof, they were not justified in paying the compensation money to the tenant for life; and where such payment was made in 1871 the company were ordered to pay the amount over again to the persons entitled in remainder whose title accrued within six years of the time of bringing the action. Young v. Midland R. Co., 19 Ont. App. Rep. 265. Disposition of Amount Awarded and Paid Into Court Cannot be Disputed by Railroad Company. Where a railroad company has instituted condemnation proceedings for a right of way over certain lands, and has paid into court for the owner the amount awarded therefor, it cannot, when ordered to show cause why the funds should not be paid to a certain person claiming to be the owner, contend that it was entitled to the right of way over said lands under its grant of right of way over public lands. Northern Pac. R. Co. v. Jackman (Dakota, May term, 1889), 50 N. W. Rep. 123. SHORTLE et al. v. TERRE HAUTE & INDIANAPOLIS R. Co. (Indiana Supreme Court, April 21, 1892.) Eminent Domain-Action for Damages-Limitations. In a petition for a writ to assess damages occasioned by the construction of a railroad under Rev. St. Ind., 1881, §§ 905-912, which declares that the owner of land taken by a railroad for right of way "may have a writ for the assessment of damages," the proceedings are governed by section 294, which provides that "all actions not limited by any other statute shall be brought within fifteen years," and not by section 292, which provides that actions for injuries to property shall be brought within six years. Action by Several Plaintiffs Conveyance by Some.-Where several persons bring an action for damages against a railroad company for taking land for a right of way, and one or more of the plaintiffs have conveyed the land in suit, their action does not bar the right of action of those who have not conveyed. Conveyance of Right of Way--Agreement to Fence-Consideration.-Railroad companies are required by law to fence their right of way, and where a right of way is conveyed to a railroad company upon the promise by the company to fence the same, the grant is without consideration and the grantor may subsequently have his damages assessed. Action by Remainder-man-Statute of Limitations.-Under Rev. St. Ind., 1881. § 287, which declares that a remainder-man may sue for an injury to the inheritance, even though there be an intervening estate for life or years, the statute of limitations will run against an action by a remainderman against a railroad for damages in taking land for a right of way, notwithstanding the existence of a life estate. APPEAL from Tippecanoe Circuit Court. James V. Kent, for appellants. John F. McHugh, for appellee. Case stated. COFFEY, J.-This was a petition by the appellants for a writ to assess the damages occasioned by the construction of a railroad over their lands, under the provisions of sections 905-912, Rev. St., 1881. The appellee answered: "Second, six years' statute of limitations, [Rev. St., 1881, 292] thurd, fifteen years' statute of limitations, [Id. § 294; fourth, conveyance of the right of way by part of the appellants; fifth, entry upon and occupancy of the right of way in controversy with the consent of the appellants, and an agreement on the part of the appellants to convey such right of way in consideration of appellee's agreement to fence the same, covering compliance by the appellee on its part." The court overruled a demurrer to these several answers, and thereupon the appellants replied to the second and third paragraphs that there was an intervening life estate on the land at the time the appellee and its predecessors entered, and that the period fixed by the statute of limitations had not elapsed since the termination of such life estate. To this reply the court sustained a demurrer, and the appellee had judgment for costs. Statute of limitations. The assignment of error calls in question the rulings of the court in overruling a demurrer to the several answers. above referred to, and in sustaining a demurrer to the reply filed by the appellants to second and third paragraphs of such answer. This application was not barred by the six years' statute of limitations and the court therefore erred in overruling the demurrer of the appellants to the second paragraph of the appellee's answer. Shortle v. Louisville, N. A. & C. R. Co., (Ind. Sup.) 30 N. E. Rep. 639. That there is a broad distinction between an application of the kind we are now considering and an ordinary action of trespass is almost too plain for argument. At the termination of an action of trespass the title to the land is left where it was when the action was commenced. In an action of trespass the owner does not recover the value of the land appropriated, for the reason that he still retains it. In an action of this kind, where a writ issues to assess the damages, the title to the land appropriated is transferred to the railroad company, and the owner recovers its value. The distinction between the two classes of cases is fairly illustrated in the case of McClinton v. Pittsburg, Ft. W. & C. R. Co., 66 Pa. St. 404, in which the court said: "The petition, when properly used, is not for the recovery of past damages under an unlawful entry, but for compensation for a right to be invested in the company. Though the latter is often denominated damages,' its subject is essentially different from the former. It is called damages' only in 51 A. & E. R. Cas.-37 the sense of unliquidated demand, but in its nature it is the price of a purchased privilege." The court did not err in overruling the demurrer to the third paragraph of the answer. This proceeding is limited by the 15 years' statute of limitations. There is no other statute by which it can be limited. Shortle v. Louisville, N. A. & C. R. Co., supra; section 3954, Rev. St. 1881, does not purport to be a statute of limitations, and does not, in our opinion, have any application to the question now under consideration. Action by several plaintiffs. The court erred, we think, in overruling a demurrer to the fourth paragraph of the answer. It is pleaded as a bar to the entire application. The fact that some of the appellants have conveyed the right of way is no bar to the right of those who have not done so to have their damages assessed. An answer which is pleaded in bar of the whole action and bars only a part is bad on demurrer. Pouder v. Tate, 76 Ind. 1; Falmouth, & L. Turnpike Co. v. Shawhan, 107 Ind. 47; Reid v. Huston, 55 Ind. 173. Fencing right of way. The court erred, also, we think, in overruling a demurrer to the fifth paragraph of the answer. The facts therein set forth fall far short of constituting an estoppel against the appellants. It furthermore appears upon the face of the answer that the promise of the appellants to convey the right of way was without consideration. The duty to fence its road was a duty imposed upon the appellee by law, and a promise to perform that duty was no consideration for an agreement on the part of the appellants. Ford v. Garner, 15 Ind. 298; Reynolds v. Nugent, 25 Ind. 328; Ritenour v. Mathews, 42 Ind. 7; Fensler v. Prather, 43 Ind. 119; Smith v. Boruff, 75 Ind. 412. Action by remainder man. The reply filed by the appellants was wholly insufficient to avoid the statute of limitations. The authorities cited by the appellants have no application here. They ap ply, ordinarily, to possessory actions. Under the facts disclosed by the pleadings in this case the appellants could not maintain an action of ejectment. Section 287, Rev. St. 1881, provides that "a person seized of an estate in remainder or reversion may maintain an action for waste or trespass, for injury to the inheritance, notwithstanding an intervening estate for life or years:" while section 909, under which this proceeding was instituted, provides that "any person having an interest in any land which has been or may be taken for any such public work, may have the benefit of this writ, upon his own application, as |