suit was begun, and under which it must be concluded, is found in the Compiled Laws of 1876, as follows:

"Sec. 681. Any defendant may, after filing his answer, exhibit and file his cross-bill, containing his interrogatories to the complaint or complaints [complainant or complainants is evidently meant], and call upon him or them to make answer thereto. In such case, the complainants shall be held to answer, plead, demur, or except to such cross-bill in the same manner and under the same penalties that a defendant or defendants are herein before required to answer, plead, demur, or except to an original bill. If the cross-bill is filed in term time, the complainant or complainants shall answer within such time as the court may order; if filed in vacation, the complainant or complainants shall answer such cross-bill within the time herein before prescribed for defendants to answer original bills; and the issuance, service, and return of subpoenas, or publication of notice in case of non-residents, shall be the same as herein before provided in the commencement of actions in chancery."

The argument of defendant is, that this section, by its terms, applies only to cross-bills seeking discovery. The interrogatory clause is omitted from defendant's cross-bill. Therefore, it is claimed, this section does not apply, and the commonlaw rule governs. If this be so, which is not admitted, no common-law rule has been shown denying complainant the opportunity to answer a cross-bill. It is further argued that the relief sought by the cross-bill is only such as results to defendant from her successful denial of complainant's original and amended bills, and such as might have been claimed in her answers to those bills, and therefore her cross-bill admits of no answer. This is a non sequitur. Admitting that the claims for the very important affirmative relief demanded by the cross-bill might have been set up in the answer of defendant, they would then have been denied by the replication, and would have been in issue when the cause was tried and submitted. As it is, they have never been in issue at any time.

The doctrine of estoppel is invoked against complainant. It is claimed that, by his pleadings and proofs already in the record, he would be estopped from setting up any possible defense to the matters alleged in the cross-bill, if allowed the opportunity. After stating, in their brief, matters which they consider established by complainant's pleadings and proofs,

defendant's attorneys say: "He was estopped from denying any of these facts; he could have answered only by denying them." We are not prepared to say, as matter of law, that every possible defense that complainant might make to the new matter of the cross-bill, or any portion of it, is admitted away by his pleadings or proofs upon other issues. Were such a thing possible, even then complainant would have a right to an opportunity to answer the cross-bill, if he could do nothing more than confess a decree, and save additional costs. In other branches of the case defendant's attorneys have shown great industry in citing numerous authorities to support their positions. To sustain their argument that complainant was not entitled to an opportunity to answer defendant's cross-bill, they have not cited one. It is not likely that such an authority can be found in the history of English or American jurisprudence. The statement of the proposition is its own refutation. No argument can make the error plainer. The decree in this case, in awarding to defendant possession of the property in question, and in awarding process to put her in possession, and in awarding to her rent, goes outside of the issues as shown by the record. It is as if a man and his wife should be parties to a suit involving her homestead rights, and evidence should be admitted tending to show incidentally that they were not living happily together, and the court should proceed of its own motion to divorce them. The decree in this case, for error in attempting to adjudicate on matters not in issue, must be reversed.

The decree has also adjudicated the matters properly in issue; that is, the question of the specific performance of the alleged contracts, the question of compensation for complain. ant's improvements, and the question of enjoining the prosecution of the two actions of ejectment. It is therefore necessary to examine this adjudication, and to determine as to its correctness.

As to the alleged contract of Verling K. Hart to give title, when he should himself obtain title by patent, to occupants of the land who had made improvements thereon. At the time these promises or representations were made, Hart had no title, and could give none. It is not alleged that he promised to procure title, or to make any effort to procure title. This consideration, while not conclusive, seems unfavorable to complainant's equities. Neither is there any allegation or proof as to the amount or character of improvement that would

be required of the settler to entitle him to the benefit of the alleged promise. Improvements are spoken of, and the building of a burgh. An improvement might be a large business house or a pig-sty; and the building of a burgh might consist, in part, in the erection of one or the other, or both. It would Beem that Hart considered that he had a right to object to the construction of inferior buildings on his land, and in one case intimated that he did not regard such as entitled to consideration. Neither is the quantity of land fixed to which a settler would be entitled on account of improvements of any character. Fischer speaks of a lot. McCray mentions improved lots and adjoining lots as though two lots were intended to accompany each "improvement." Neither is any price fixed. It was to be a small price or a nominal price. Large latitude is not excluded by these terms. In McCray's testimony he speaks of a nominal figure that would about pay the expense of platting, etc., and says he thought ten dollars for improved lots, and twenty-five dollars for adjoining lots, too low; that he would fix the figures at twenty-five dollars, and forty or fifty dollars. It may well be doubted whether the settlers generally would consider these prices nominal, or whether they can properly be called nominal; and McCray mentions one amount as a nominal price for improved lots, and a different and larger amount as a nominal price for adjoining lots. These terms, "nominal prices" and "small prices," leave much room for controversy. A contract cannot be specifically enforced when it leaves any of its terms open to future treaty, or to be afterwards settled. These elements of incompleteness and uncertainty in the alleged contract are fatal to a claim for specific performance.

This brings us to the written instrument of September 20, 1883. The first clause of this instrument reads as follows: "Know all men by these presents, that I, Juliet W. Hart, administratrix of the estate and guardian of the minor children of Verling K. Hart, deceased, do hereby covenant and agree to and with the people of the town of Buffalo, Wyoming, that I will, upon obtaining a patent from the United States for the land upon which the said town is situated, sell to the parties in possession certain lots within said town upon the following terms and conditions." Then follow the terms, and the closing clauses are the following:

"All of which is covenanted upon condition that no further delay is caused, or any expense incurred, on account of affi

davits or protests which have already been made, or which may hereafter be made, in opposition to the issuing of a patent by the United States for said land.

"Witness my hand and seal, this twentieth day of Septem ber, A. D. 1883. JULIET W. HART.

"Witness: H. S. ELLIOTT."

This contract is signed, simply, "Juliet W. Hart." This suit is brought against Juliet W. Hart. It is thus treated as the individual contract of Juliet W. Hart, -as her individual covenant and agreement, upon obtaining a patent from the United States, to sell certain portions, or it may be uncertain portions, of the land. That contingency, upon which this contract was to take effect, if this view be the correct one, has never occurred. Juliet W. Hart never obtained a patent for the land.

It may be said that Mrs. Hart was endeavoring to secure the issue of the patent upon the desert-land entry of her deceased husband, and that the phrase, "obtaining a patent," in the contract, merely means so securing the issue of that patent. There are many things to sustain this view. This is the patent which all the parties interested were discussing. This is the patent, the issue of which the citizens were opposing. This is the patent which defendant, Mrs. Hart, sought to free from further opposition. This patent seems to have been regarded by the people as empowering Mrs. Hart, as administratrix, to sell portions of the land. It had not occurred to Mr. Elliott that this was not the case, and he represented the people of Buffalo. If such is the meaning of the phrase, "obtaining a patent," in the contract, then the contract is one which it was and is simply impossible to perform according to its terms. The issue of the patent to Verling K. Hart gave Juliet W. Hart no power or authority to sell or convey any of the land. It gave her no such authority, either individually, or as guardian, or as administratrix, or as widow and heir, or in all four capacities put together. It may be said that Mrs Hart, having contracted to sell and convey property to which she had no title at the time, on afterwards acquiring title from any source, should be held to sell and convey according to her contract; that the source of the title is not material; that the qualification, "upon obtaining a patent," in the contract, is not a material part of the contract, and may be rejected as immaterial or as surplusage, and the contract enforced without it. This is dangerous ground. Such a course, in this

case, would evidently change the meaning and intent of the contract from what was in the contemplation of the parties at the time it was made and accepted. The parties evidently acted under the impression that, upon the issuing of the patent to Verling K. Hart, Juliet W. Hart, as administratrix of his estate, could convey out of such estate, before distribution, the portions of the realty belonging thereto which are called for by this alleged contract. This would have reduced the estate to the diminution of the inheritance of all the heirs in proportion to their interest. This is evidently what was intended, and not that the contract should be filled out of the share of one heir after distribution. It could not be known, when the so-called contract was made, which heir would get the property described, or whether any of them would. It might have been necessary to sell it to pay intestate's debts. The time fixed for the performance of the contract, "upon obtaining a patent," sustains this view, and it is consistent with no other. No time is allowed for distribution. No such contingency was provided for, or, it seems, thought of. If the phrase in the contract, "obtaining a patent," means the issuing of the patent to Verling K. Hart, then it follows, from the foregoing considerations, that the contract cannot be enforced according to its true intent and meaning. If the phrase has its natural meaning, according to the order and sequence of words in the contract where it occurs, and means the obtaining of a patent by the contracting party, Juliet W. Hart, in her own right, then that contingency upon which the contract should take effect has never occurred. In either view, the action for specific performance must fail. There are other considerations leading to the same result, but these seem to be controlling and conclusive.

Then the question remains, What is the true relation of this complainant to the property which he has held all these years? Is he a trespasser? or is his possession rightful? He is not in possession by contract. Is he lawfully in, by permission of the party who had a right to give it? This brings us to the questions of license and equitable estoppel.

"License" is defined by Abbott to be, in its general sense, permission; consent that a person may do some act which, without such consent, he might not lawfully do; an authority to do some one act, or series of acts, on the land of another, without possessing any estate in the land. Bouvier's definitions of the term "license" are substantially the same.