Moines Ins. Co. v. McIntire. 99 Ia. 50 (68 N. W. Rep. 565). One assailing a deed of gift on account of the insanity of the donor has the burden of proof. Teegarden v. Lewis, 145 Ind. 98 (44 N. E. Rep. 9). Where a deed of one claming to act for an infant is void it can not be validated by a subsequent ratification by the infant after becoming of age. Dellinger v. Foltz, 93 Va. 729 (25 S. E. Rep. 998). A minor is not estopped to set up his infancy as a defense to a mortgage by the fact that at the time of its execution he represented that he was of age. Alt v. Goff, 65 Minn. 191 (68 N. W. Rep. 9). Cal. Civ. Code, §§ 38, 39 construed and applied-validity of deed of a person of unsound mind. Castro v. Geil, 110 Cal. 292 (42 Pac. Rep. 804; 52 Am. St. Rep. 84).

Sec. 400. Judicial sale of infants' lands. It is held that a judgment rendered against an insane ward on an attachment bond executed by him as surety when he was sane, is valid, and constitutes a lien on his real estate which may be sold on execution to pay the judgment without filing the claim in course of administration of the ward's estate by his guardian. Wash. Code Proc., §§ 1154, 1170, applied. Pollock v. Horn, 13 Wash. St. 626 (43 Pac. Rep. 885; 52 Am. St. Rep. 66). A judgment against an insane person who has not a guardian, without the appointment of a guardian ad litem, is irregular, but not void. Dunn v. Dunn, 114 Cal. 210 (46 Pac. Rep. 5). In Louisiana it is held that in case of sale being made of a minor's property during the lifetime of both father and mother, the father may occupy the place of tutor pro hac vice, and in such event the law clothes him with the power of a tutor; but he does not become tutor in point of fact, and consequently he is dispensed from furnishing security, taking and subscribing an oath, having an inventory taken, or causing a mortgage to be inscribed against himself, and the like. Succession of Allen, 48 La. 1240 (20 So. Rep. 683). In New York it is held that the legislature has power, subject to judicial review, to authorize by special act the sale of infant's lands, including the future contingent interests of those not in being. N. Y. Laws, 1872, ch. 479, construed. Ebling v. Dreyer, 149 N. Y. 460 (44 N. E. Rep. 155). The Kentucky statute, Code § 490, provides that " a

vested estate in real property jointly owned by two or more persons may be sold by order of a court of equity, in an action brought by either of them, though the plaintiff or defendant be of unsound mind or an infant: (1) If the share of each owner be worth less than one hundred dollars. (2) If the estate be in possession and the property cannot be divided without materially impairing its value, or the value of the plaintiff's interest therein." Construing this statute it is held that infants out of possession cannot, by their next friend, maintain an action for the sale of land. Swearingen v. Abbott, 99 Ky. 271 (35 S. W. Rep. 925). Particular fact case as to the sufficiency of the petition and necessary par ties in proceedings to sell an infant's real estate under the law of Virginia. Va. Code, § 2616, applied. Lancaster v. Bar. ton, 92 Va. 615 (24 S. E. Rep. 251).

Sec. 401. Rescission by infant or insane personReturn of consideration. Where one deals fairly with person of unsound mind, but apparently of sound mind without knowledge of such unsoundness, he is entitled to b placed in statu quo upon the avoidance of the deed or contract resulting from such dealings; but this rule does not apply where the contract has been entered into with the knowledge of the insanity and an unconscionable advantage has been taken of the insane person. Thrash v. Starbuck, 145 Ind. 673 (44 N. E. Rep. 543). The court say: "It has not, to our knowledge, been decided in this or any other state thit, where the contract has been entered into with knowledge of the insanity, and an unconscionable advantage has been taken of the insane person, it is a necessary prerequisite to aviddance that a tender of that which has been received by such insane person shall be made. If the rule requiring the parties to be placed in statu quo includes, as a necessary element, the requirement that the party dealing with the non compos shall be ignorant of the incapacity, and shall not deal unfairly, it would seem to follow as an indispensable 1sult that the presence of such knowledge and of an unfai advantage would discharge the rule; otherwise such elements of the rule are merely empty phrases. Some cases go so far as to hold that one dealing with another who is insane, kno wing

6

of such insanity, unless such dealing is to supply necessities, cannot claim the contract to be merely voidable, but they hold it to be void. Lincoln v. Buckmaster, 32 Vt. 652; Henry v. Fine, 23 Ark. 417; Matthiessen & Weichers Refining Co. v. McMahan's Adm'r, 38 N. J. Law 536; and cases cited in each. Though this rule may not prevail in Indiana, it discloses the bent of the judicial mind against permitting the shrewd and cunning man of affairs to deal with one whom he knows to be incapable of dealing with judg ment and discretion, and, after taking an unfair advantage of the opportunity, incur no hazard whatever. If he may so deal with the possibility of retaining that so illy gotten, and with no possibility of losing that with which he parted, he is not restrained from attempting the advantage as opportunity offers. In Gibson v. Soper, 6 Gray 279 (66 Am. Dec. 414), it was held that: To say that an insane man, before he can avoid a voidable deed, must put the grantee in statu quo, would be to say, in effect, that in a large majority of cases his deed shall not be avoided at all. The more insane the grantor when the deed was made, the less likely will he be to retain the fruits of his bargain, so as to be able to make restitution. If he was so far demented as not to know or recollect what the bargain was, the difficulty will be still greater.' In Eaton v. Eaton, 37 N. J. Law 109, it was said of the above holding that: 'This is good law where there is fraud practiced upon one who is known at the time to be insane, but is not the law where the purchase and conveyance are made in good faith, for a good consideration and without knowledge of the insanity.' The case of Crawford v. Scoville, 94 Pa. St. 48 (39 Am. Rep. 766), followed the case of Gibson v. Soper, supra. In Halley v. Troester, 72 Mo. 73, it is held that one who receives property by exchange from another who is of unsound mind, and this fact may be known from ordinary observation, is not entitled, upon avoidance of the transfer, to have the exchange property tendered back. See, also, Crawford v. Scovel, 20 Am. Law Reg. (N. S.) p. 65.” An infant suing to set aside a conveyance is not required to offer a return of the purchase money, it appearing that he is not able to make such return. Fox v. Drewry, 62 Ark. 316 (35 S. W. Rep. 533).

INSURANCE.

HARRISON v. PEPPER.

(166 Mass. 288.)

A

Insurance by life tenant-Right to proceeds. life tenant is not required to insure buildings, and he cannot be compelled to use insurance money he receives on a policy procured for his sole benefit, in rebuilding, or to share it with the remainderman although the amount equals the full value of the buildings and exceeds the value of the life estate.

MORTON, J.

Sec. 402.

* * *

66

Statement of the case. The defendant, a life tenant, had an insurable interest in the property; and although it is alleged in the bill that she renewed the insurance on the building in her own name as an entirety of estate, without qualification for the sum of twelve hundred dollars," and that that sum was paid to her as the full value of the dwelling house, without any deduction by reason of the plaintiff's ownership in fee, it is not alleged that the sum so paid exceeded the value of the defendant's interest, or what the value of the defendant's interest was. If the amount received by the defendant did not exceed the value of her interest, then it is clear that the plaintiff has no right in equity to any portion of it. Reitenbach v. Reitenbach v. Johnson, 129 Mass. 316; Martineau v. Kitching, L.R. 7 Q. B. 436; Stillwell v. Staples, 19 N. Y. 401. But if we assume that the sum paid represents the total value of the dwelling house, and exceeds the value of the defendant's interest, and that the bill fairly alleges this, still we do not think that the plaintiff is entitled to recover. A tenant for life is liable for any unauthorized act which tends to the injury of the inheritance; in other words for voluntary waste. How far and under what circumstances he is liable for what is termed permissive waste is not altogether clear, and we need not consider. In re Cartwright,

41 Ch. Div. 532; 3 Leake, Prop. 92; Pol. Torts, 285, 286 Tayl. Landl. & Ten. (7th Ed.), § 688; Kerr Inj. (1st Ed.).

252.

Sec. 403. Insurance by life tenant-Right to proceeds. We have been referred to no case in which it has been decided that the neglect of the life tenant to insure is to be regarded as in the nature of voluntary or permissive waste though it has been held that the failure to pay taxes is (Stetson v. Day, 51 Me. 434); but that, manifestly, stands upon different ground. It is plain that the plaintiff is not entitled to recover unless she has some claim upon the funds in the hands of the defendant. In the absence of anything that requires it in the instrument creating the estate, or of any agreement to that effect on the part of the life tenant, we think that the life tenant is not bound to keep the premises insured for the benefit of the remainderman. Each can insure his own interest, but, in the absence of any stipulation or agreement, neither has any claim upon the proceeds of the other's policy, any more than in the case of mortgagor and mortgagee, or lessor and lessee, or vendor and vendee. Suffolk Insurance Co. v. Boyden, 9 Allen, 123; Burlingame v. Goodspeed, 153 Mass. 24 (26 N. E, Rep. 232); International Trust Co. v. Boardman, 149 Mass. 158 (21 N. E. Rep. 239); Warwicker v. Bretnall, 23 Ch. Div. 188; Leeds v. Cheetham, 1 Sim. 146; Rayner v. Preston, 18 Ch. Div. 1; Kearney v. Kearney, 17 N. J. Eq. (2 C. E. Greene), 59, 71. The contract of insurance is a personal contract, and inures to the benefit of the party with whom it is made, and by whom the premiums are paid. It is a contract of indemnity against loss. The sum paid "is in no proper or just sense the proceeds of the property." King v. State Ins. Co., 7 Cush. 1; Wilson v. Hill, 3 Met. 66; Suffolk Ins. Lerow v. Wilmarth, 9 Allen, v. Lawrence, 10 Pet. 507, 512. appear, that the defendent intended to make a present of the proceeds of the policy to the plaintiff, or was insuring for her benefit. Whether the amount of the indemnity received by the defendant for her loss was more or less than the value of her interest cannot affect the plaintiff; nor can the defendant

Co. v. Boyden, 9 Allen, 123; 382, 385; Columbia Ins. Co. It is not averred and does not