Improvements made by a purchaser at a void partition sale prior to its confirmation cannot be credited to him under the provisions of section 2754, Cowling v. Nelson, 76 Ark. 146, 88 S. W. 913.

Occupying claimant. The Illinois occupying claimant's act providing for allowances to occupants for improvements made in certain cases, construed, Wakefield v. Van Tassell, 218 Ill. 572, 75 N. E. 1058. In order to entitle a person in equity to compensation for improvements made upon the land of another he must have held possession under color of title, in good faith and adversely to the true owner, Bryan v. Coucilman, (Md. 1907), 67 Atl. 279. The "Occupying Claimant's Act," Laws 1883 c. 59, protecting persons not in possession of land who pay taxes thereon and derive title from the state or the United States, construed, Flanagan v. Mathisen, (Neb. 1907) 110 N. W. 1012. Where a statute provides that a claimant in occupation of land cannot be deprived of possession without being paid for improvements made by himself and by his grantor who held under the same title, such claimant cannot recover the value, or any part of the value, of those improvements, in an action for damages for breach of covenant of warranty, and where the cloud on the title is only the existence of a part interest, the true measure of damages is the value of that interest, Webb v. Wheeler, (Neb. 1908) 114 N. W. 636. When the defendants in an action of ejectment have a right to payment for improvements on the real estate, the plaintiff may either sell the land to the defendants or if they refuse to pay its value after a tender of a warranty deed, the owner may have the value of the land adjudged a first lien and have the property sold to satisfy the said lien, Bruner v. Hunt, 71 Kan. 533, 81 Pac. 194.

Sec. 260. Value of improvements. As improvements erected by a grantee under a deed afterwards cancelled were not equal in value to the fair rental of the property the grantee was not allowed a lien for their cost, Alvey v. Alvey (Ky. 1906) 97 S. W. 1106.

Value and not cost. A son, the grantee in an undelivered deed from his father, who went into possession of the premises, borrowed money from his father and spent it upon improvements on the land is not entitled in partition proceedings brought by his brothers and sisters after his father's death to

have the notes cancelled to the extent of the amount expended in improvements, but only to the value of the improvements irrespective of their cost, Noble v. Tipton, 219 Ill., 182, 76 N. E. 151.

Sec. 261. Estoppel.

Estoppel against one allowing improvements to be made, see ante §154.

Improvements made upon property occupied by a son through sufferance for 30 years, after notice by his father that the land so improved would not be given to him do not entitle the son to compensation, Holsberry v. Harris, 56 W. Va. 320 49 S. E. 404. Where one of three trustees under a will with power to sell, sold a tract and all three allowed the buyer to occupy from year to year, make valuable improvements, and make certain payments from year to year, the sale might be held to have been ratified although they accepted the money as rent and had no actual knowledge of the buyer's claim, (2 judges dissent), Hill v. Peoples. 80 Ark. 15, 95 S. W. 990. Where the plaintiff, an old woman and the sole devisee of her husband's will, was induced by her son-in-law, a young lawyer, to renounce its terms and claim her statutory rights by fraudulently persuading her that the will was void on account of the testator's mental unsoundness, and later the son-in-law bought two thirds of the land at an administrator's sale to pay debts and then the plaintiff conveyed the other third to him in return for his agreement to support her for life, in a suit to set aside her election and take under the will the fact that the son-in-law had in reliance upon these conveyances spent about $2000 in improvements upon the property did not stop the plaintiff from maintaining her action, Whitesell v. Strickler, 167 Ind. 602, 78 N. E. 845.

Sess. Laws 1903,

Sec. 262. Statute not retroactive. p. 262, c. 137, which provides that one who builds permanent improvements on real estate in good faith and with color of title, shall be allowed the value of the improvements, was construed not to apply to cases arising before the passage of the law, and one who built them had no right to a counterclaim for improvements. Investment Co. v. Hambach, 37 Wash. 629, 80 Pac. 190.

INFANTS AND INSANE PERSONS

Minor's interests in partition, see post §446.

Sec. 263. Validity of contracts and conveyances.

Insane person. The procedure necessary for the conveyance of the interest of an insane husband or wife in the real estate of the spouse is set out in Neb. Laws 1907 Ch. 99. The grantees in a deed executed by an insane person cannot hold the land as against his committee where it appeared that they had known him from infancy and his defective condition of mind was a matter of common knowledge to all in the community, Rush v. Handley, (Ky. 1906), 97 S. W. 726. A mortgage executed by a lunatic for a past consideration is invalid, Smith's Committee v. Forsythe, (Ky. 1906), 90 S. W. 1075. A contract made by an insane person and fulfilled in a perfunctory manner by his guardian, who conveys the property for less than its value, is invalid, and the proceeds of the sale, by the purchaser to a third person, will be held in trust by the former for the original grantor, De Vries v. Crofoot, 148 Mich. 183, 111 N. W. 775. For an extensive examination of evidence showing that a person, though of unsound mind on some subjects, sufficiently understood the force and effect of a transaction of purchase of land by him to bar his right to a rescission of it, see Ratliff v. Baltzer's Adm'r, (Idaho 1907) 89 Pac. 71. Where plaintiffs sought to have a deed executed by a grantor, 85 years of age, cancelled and set aside, on the ground that she did not have at the time of executing the same, sufficient mental capacity to understand the force and effect of her act, the evidence showed that the grantor after an attack of the grippe had times when "her mind would waver" but habitual insanity was not proven. The burden was upon the plaintiffs to show that the aged grantor was mentally incapable of executing the deed. Hudson v. Hudson, 144 N. C. 449, 57 S. E. 162. In a suit by grantor and after her death by her husband and heirs, to recover land from the heirs of the grantee on the ground of the insanity of the grantor, the presumption prevailed, that in the interim between release and recommitment to an asylum for the insane, during which period the grantor signed the deed of conveyance, the grantor was lucid and capable of making a valid contract, McPeck's Heirs v. Graham's Heirs, 56 W. Va. 200, 49 S. E. 125.

Minor. Growing timber belonging to a minor is real estate and can only be sold in Kentucky by the minor's guardian in accordance with a decree of court. A sale by a pretended guardian is void as against the minor although the pretender later became guardian. A subsequent suit of the guardian against the purchasers constitutes a sufficient disaffirmance of the sale, Ayer & Lord Tie Co. v. Witherspoon, Admr. (Ky. 1907), 100 S. W. 259. When the Kentucky Statutes authorized a guardian of a minor to lease his real estate for not exceeding seven years during minority, a grant of an easement to a pipe line to lay pipes made by the guardian was construed as such a lease. Upon coming of age the ward could only recover damages for the further maintenance thereof. Cumberland Pipe Line Co. v. Howard, (Ky. 1907), 100 S. W. 270.

A deed to a minor is not void but merely voidable at the instance of the minor himself and strangers to such a conveyance who claim under a title adverse to that of the minor cannot claim that the infant did not receive an adequate consideration and that the conveyance was therefore void, Shaffer v. Detie, 191 Mo. 377, 90 S. W. 131. Where an insane purchaser of land pays the purchase money and orders the deed made to one of his children the grantee holds in trust for the purchaser and for his heirs after his decease. Couch v. Harp, 201 Mo. 457, 100 S. W. 9. An infant grantee in a beneficial deed need take no positive action to accept it as acceptance is implied, Akers v. Shoemaker (Ky. 1907) 102 S. W. 842.

Sec. 264. Affirmance and disaffirmance. An infant who contracts for the construction of a house and gives a deed of trust to secure the payment of the price therefor can have cancellation and a return of the money she has paid minus compensation to the contractors for his expenses already incurred in performing the contract, Thornton v. Holland, 87 Miss. 470, 40 S. 19. Under a deed executed by a married woman, a minor, in 1871, disaffirmed in 1894 through a deed to her daughter who was married and a minor till 1898, it was held that Acts 1899 p. 209 c. 78 did not bar the daughter from action for recovery. Gaskins v. Allen, 137 N. C. 246, 49 S. E. 919.

An infant made a warranty deed, and when he did not disaffirm it within a reasonable time after coming of age, the

whole deed was binding on him including the warranty clause, therefore he was estopped from setting up a title to the land which he afterwards acquired. Weeks v. Wilkins, 139 N. C. 215, 51 S. E. 909. When a grantor who was an infant at the time of his conveyance after he came of age accepted the remainder of the purchase money for the land he thereby ratified the sale and this act related back to the date of the conveyance and made it as perfect and complete as though he had. been of age when it was made. His subsequent conveyance to another person therefore was absolutely void, Damron v. Ratliff, (Ky. 1906) 97 S. W. 401. In an action by a grantor to set aside a conveyance because of minority where it appeared that the grantor, who was illiterate and ignorant of his exact age, was induced by the grantee to make an affidavit that he was over 21 years of age when as a matter of fact he was not, it was held that as the grantee could not have been deceived by the affidavit which he knew was false there was no objection on the ground of fraud to permitting the grantor to disaffirm his conveyance, Race v. Cawood, (Ky. 1906), 97 S. W. 412.

Sec. 265. Sales under judicial control. Sec. 2348, 2351, 2352, 2355, 2358, 2359 & 2361 of the Code providing for the sale of lands of infants, &c., are amended by N. Y. Laws 1907, Ch. 49. Guardians for insane persons are provided for and authorized to convey the real estate of their wards by Pa. Laws 1907 No. 222. Proceedings to be taken on application for sale of land of infant or incompetent are specified by Wis. Laws 1907 Ch. 660. The remedy of an infant whose land is sold although he had no guardian and the court appointed no guardian adlitem, is by appeal not by an action to set aside the sale after coming of age. Davidson v. Marcum, (Ky. 1905), 189 S. W. 703. A Missouri Circuit Court has no authority as a court of general equity jurisdiction to decree the sale of infant's land in order that the proceeds may be invested in land. Heady v. Crouse, (Mo. 1907) 100 S. W. 1052. Under C. 83, code of 1899, when a sale of an infants' land, duly confirmed by the court, has been made upon a written proposition for purchase, decrees extending the time of removing the timber were void, when they were based on mere oral representations alone and not upon pleadings in writing. Lilly v. Claypool, 59 W. Va. 130, 53 S. E. 22.