Walton was appointed trustee to succeed Louis De Laigle, and that Verdery was appointed to succeed Walton; that on September 9, 1870, upon the joint petition of Verdery, trustee, and Emma De Laigle, the sale of the property was authorized, Emma De Laigle at that time being the only beneficiary of the trust in esse; that in accordance with the order the land was sold to Holt, the trustee conveying to him in fee simple; that the purchase money (four thousand dollars) was paid in cash to the trustee, who invested it for the benefit of the trust estate; that subsequently Verdery resigned the trust after Mrs. Hughes, the petitioner, was born, and that on the petition presented by Mrs. Hughes on her own behalf and as next friend of her daughter, Joseph B. Harris was appointed trustee; that Verdery fully accounted for the amount received by him and paid the same over to Harris, trustee, after the execution by Harris of a bond required by the order of court; that Mrs. Hughes has never repudiated or disaffirmed the petition that was filed in her behalf, or restored the money paid for her use; that the Port Royal Railroad Company had acquired the premises in dispute as a right of way under condemnation proceedings which were authorized by its charter; that under such proceedings it acquired title and went into possession, and at great cost proceeded to construct the main track of its railroad, placing thereon divers sidetracks which were necessary for its use, and completed the construction of its entire railroad from Augusta to Port Royal, South Carolina; that the property passed from the Port Royal Railroad Company to the Port Royal & Augusta Railway Company by virtue of the decree rendered in the foreclosure proceedings brought by the bondholders of the former company; that in 1893, in the foreclosure proceedings had against the Port Royal & Augusta Railway Company, under authority of the orders of court passed therein, receiver's certificates to the amount of one hundred thousand dollars were issued, and declared to be a first lien upon the entire line of railroad in the possession of the receiver; that none of such certificates were ever paid, and that the entire property of the railroad was sold because of the nonpayment of the same, together with a large amount of the other indebtedness of the receiver, amounting to not less than one hundred and fifty thousand dollars; that the defendant became the purchaser of the Port Royal & Augusta Railway Company at such sale, and received a conveyance of the same from the master; that under the law of Georgia the trustee of such a trust as was created by the will of Charles

De Laigle was not only for the benefit of the life tenant, but was to preserve the contingent remainders, and that Mrs. Hughes and her grantees are concluded; and especially, under the sale of the trustee to Holt, that Mrs. Hughes elected to ratify and affirm the sale when she applied for the appointment of Joseph B. Harris as trustee, under which order the purchase money received by Verdery, trustee, was recognized as representing the entire estate in the property and turned over to Harris, trustee, as such; that Mrs. Hughes well knew all of the facts, and when she became of age did not disaffirm such transaction or undertake to avoid the condemnation proceedings until August, 1896, and stood by and allowed the railroad company to occupy that portion of its right of way, many times a day using the same for the handling thereon of trains carrying passengers, freight, and mails; that petitioners are not entitled to maintain an action of ejectment or destroy the unity of the property as maintained and enjoyed for more than twenty years, and thus deprive the public of the benefit of a completed and operated railroad.

The court sustained a demurrer to the plea of the Charleston & Western Carolina Railway Company, and this ruling is the basis of one of the assignments of error in the main bill of exceptions. Thereafter the Charleston & Western Carolina Railway Company offered the following amendment to its pleading: "Now comes the Charleston & Western Carolina Railway Company, admitted to defend against the intervention of B. H. Hughes and others, and presents for refiling under the sanction of the court its original answer, and protesting against any judgment or decree against 10 it, and reserving the right to except' thereto, and reserving also all exceptions heretofore made and the right to insist thereon, for an amendment to the original prayer of the answer prays that the court order that if any verdict or decree is rendered against this defendant, the Charleston & Western Carolina Railway Company, that it be not one of ejectment, but a money verdict for the value of the land, upon the payment of which this defendant may retain the premises in dispute." The presiding judge refused to allow the original answer to be refiled with the amendment, and this is assigned as error. While the original answer of the defendant was stricken on demurrer, it appears from the record that at the trial of the case all of the evidence which would have been admissible under such an answer was admitted, and the facts appearing in such evidence are set forth in the first part of this

statement. After all the evidence was submitted, the judge directed the jury to find for the plaintiffs the premises in dispute, but that the railroad iron thereon was the property of the defendant. Upon this verdict a judgment was entered for the plaintiffs against the defendant for the land in dispute, directing a writ of possession to issue, and authorizing the sheriff, on demand of the plaintiffs, to put defendant, its agents and servants, out of possession. Thereupon the defendant excepted, and the plaintiffs by cross-bill complained of rulings which will be hereafter referred to. The errors assigned in the main bill of exceptions were: 1. The court erred in sustaining the demurrer to the original answer of the defendant; 2. The court erred in refusing to allow the defendant to refile its answer with the amendment so as to have a money verdict against the receiver, because, if under the evidence petitioners show a title in them which would ordinarily authorize a recovery in ejectment, there should in the present case be a finding for a sum of money, or a decree authorizing the receiver to acquire the premises by the exercise of the power of eminent domain enjoyed by the Port Royal & Augusta Railway Company. The assignment of error in the cross-bill of exceptions was, that the court erred in directing the jury to find for the defendants the iron rails and other improvements located upon and permanently attached to the railroad, 11 it being insisted that such rails and other improvements, being permanently attached to the railroad, should pass with the real estate.

1. The item of the will of Charles De Laigle under which the petitioners derived title was construed by this court in the case of Fleming v. Hughes, 99 Ga. 444. It was there held that the legal title passed to the trustee as to the life-estate only; that the remainder created was a legal and not an equitable estate, and that therefore the order of sale which was granted on the application of Verdery, trustee, did not authorize the sale of any other interest in the land than the life estate of Emma De Laigle. The only interest acquired by Holt under such sale being the life estate, that was all that he could convey. By the terms of this decision the title to the fee vested in Mrs. Hughes upon the death of her mother on January 13, 1894. It appears, therefore, that all the issues raised in the present case involving the question of title are conclusively settled by the case cited.

2. The Port Royal Railroad Company was incorporated by an act of the general assembly, approved December 19, 1859; and

by its charter it was declared that "the said company shall posBess and enjoy the same privileges as to right of way as are vested in, and enjoyed by, the Central Railroad & Banking Company of Georgia": Acts 1859, p. 324. In the charter of the Central Railroad & Banking Company it was provided that that company should have power to construct a railroad, "paying to the owners of lands through which the same may pass a just indemnity" for the value of the land covered by the railway and the right of way on either side thereof. If the company could not acquire the title to the right of way by purchase, it was provided that the amount of damage or injury occasioned by the construction and maintenance of the road should be ascertained and determined by the award of three appraisers, one to be chosen by the company, one by the "owner," and one by the inferior court of the county where the land lay; and if the "owner," should decline to appoint an appraiser, then two were to be appointed by the inferior court, the finding of the appraisers to operate as a judgment for the amount against the company, 12 either party having the right to appeal from the award of the appraisers to a special jury in the superior court. It was provided that "the decision shall vest in the company the fee simple of the land in question, and in the other party a judgment for its value." In making the valuation the appraisers, and in case of appeal the jury, should take into consideration the loss or damage which may occur to "the owner" or "awners” in consequence of the land being taken, and also the benefit and advantage to be received from the construction of the railroad: Prince's Digest, 331, 332; Acts 1835, p. 217. It will be seen that, under the charter above quoted from, it was contemplated that the right of way should be acquired by purchase from the "owner" of the land, and that upon failure of the company and the owner to agree upon the amount to be paid, condemnation proceedings could be had in the manner above referred to, and that the persons against whom such condemnation proceedings must be instituted were the owners of the property-that is, the same persons with whom the company would be required to negotiate for the purchase of the property. The persons, therefore, who are the owners and who would have to be consulted if a purchase at private sale was desired, are ones who should be made parties to the condemnation proceedings. If the person in possession of the property was not clothed with the power to make a conveyance of the interest of another in the same property, then such person could not acquire the right

to dispose of the interest of the other party by submitting to condemnation proceedings to which the other person at interest was not a party, nor deprive the other of his right to assert his interest, whatever it may be, against the corporation instituting the condemnation proceedings. If a life-tenant could not convey to a railroad company for a right of way the interest of a remainderman, the most solemn judgment that could be rendered in condemnation proceedings, to which the railroad company and the life tenant alone were parties, could not operate as an estoppel upon the remainderman. It becomes necessary in the present case to determine whether, in condemnation proceedings instituted under the provisions of the charter referred to against a person who was the assignee of the 13 life tenant, the interest of a contingent remainderman, who was not in esse when the proceedings were had, passed to the railroad company. The award of appraisers in such proceedings operates as a judgment between the parties, and is governed by the same rules that would ordinarily be applied to judgments of courts; and such an award, or a verdict and judgment on appeal from the same, has the same force as an ordinary judgment rendered by a court of competent jurisdiction. It is conclusive upon the parties and privies, but is not binding upon strangers. If at the time the condemnation proceedings were. had there were two estates in the property, one a life estate, and the other a contingent remainder, the fact that it was impossible to ascertain the persons who would eventually take as remainderman upon the happening of the contingency provided for in the will would not authorize the conclusion that the interest of such remaindermen was acquired by proceedings against the life tenant, who under no circumstances could be held to represent them. If the condition of the title to the property at the time of the condemnation proceedings is such that notice cannot be given to all interested, notice to such as are definitely known to be interested would not be held to be sufficient to deprive of their rights others whose identity was unknown, but whose interest in the property was ascertainable.

Condemnation proceedings pass title to whatever interest the parties who took part in the proceedings have in the property, and a party who could not be notified is not bound by the award or judgment. In such cases the railroad company would fail to acquire a perfect title to the property; and this imposes no greater hardship upon a railroad company than it does upon any other person who desires to purchase property in which there