and to convey to the plaintiff the portion embraced in his claim; but, after having secured the title, he refused to execute the conveyance, and the court decreed that he should. The supreme court affirmed the decree. It was there held that a contract made before the issuing of the patent to convey after, did not violate the letter or spirit of the law, so as to invalidate the contract between the parties; and that if such contract were in violation of law, the defendant was the party who committed the wrong; that the government was the only party wronged, the only party that could take advantage of the wrong thus committed; and that in that proceeding the question could not be inquired into; that it could not be determined in the proceeding whether the defendant did obtain the title to the land by making false representations at the time of his entry; that the plaintiff did not violate any law by his contract with the defendant; and that the defendant should not be allowed to set up his wrongful act in bar of the plaintiff's rights.

In Myers v. Croft, 13 Wall. 291, it is held that a pre-emptor, who has entered a pre-emption claim, may sell before patent issues; and I find nothing in the authorities cited upon the part of the respondents that conflicts with that view. The distinction to be noted is whether the agreement was a sale of the pre-emption right or a vested interest in the claim after its acquisition under the law.

The respondents' counsel also claims that too long a time was allowed to elapse by the appellant before attempting to enforce the performance of the contract; but time was not made the essence of the contract, nor did the respondent Snyder attempt to make it the essence thereof, by calling upon appellant and demanding its performance, upon his part, within a specified time; both parties let it run

on.

The appellant being in the exercise of a possessory right over the land, would not be likely to urge its consummation; and besides, the said respondent was away, living in various other sections of country, remote from the state of Oregon, a great part of the time. Said counsel claims also that the respondent Crews is a purchaser of the land in good faith, and his equities, therefore, being equal to those of the appellant, and having obtained the legal title, his position is the better. This would be true if he were an innocent purchaser in good faith of the land; but has he shown himself to be such?

To constitute a purchaser in good faith, as against an outstanding equity, a party must plead and prove that the consideration money was bona fide, and truly paid, independently of the recitals in the deed. 2 Lead. Cas. Eq. 91, 120, (3d Amer. from 2d London Ed.;) Boon v. Chiles, 10 Pet. 177. No such defense has been averred in the case, nor any proof made, independently of the recital in the deed from Snyder to Crews of its payment. Besides, the circumstances surrounding the case-the appellant having cropped the land for several years prior to Crews' purchase, and the respondent Snyder not residing upon it-were such as would ordinarily put a prudent man

upon inquiry. It seems that Crews reaped a volunteer crop after he went onto the land-the result of former cultivation. It hardly seems possible that he would have bought the place without endeavoring to ascertain whether or not appellant did not claim an interest in it. It appears he did examine the records in the land-office and of the county.

The witness T. J. Shaw testified that he had a conversation with him at his (witness') residence in Centerville about the land; that witness asked him if he was not afraid he had "got his foot in it," to which Crews said no; he had been to Grande Ronde to the land-office, and saw that Richards had no shadow of a show to hold the land. If that testimony is reliable, Crews must have learned that Richards claimed some kind of a right in the land, and he should have gone to Richards to ascertain the fact; and besides this, his deed of purchase, under which he entered upon the land, was only a quitclaim deed. A purchaser under that kind of a deed cannot claim to be a bona fide purchaser of the property. We have decided that question at this term in Baker v. Woodward, ante, 173.

It is true that Crews, long subsequent to his entry, took from Snyder another deed to the lot,-a deed of bargain and sale, with covenants of warranty,-but he certainly had learned, by the time he took the second deed, that appellant claimed the land. It is our opinion that the respondents have not shown that Crews was a purchaser in good faith, and that he stands in no better condition than Richards would have stood if he had not executed said deeds. The remedy to compel the specific performance of a contract is not to be exercised as a matter of course. Its application should be controlled by circumstances, and courts are allowed to and often do exercise a discretion in granting it; but, as it is said by Mr. Pomeroy, in his work upon Equity Jurisprudence, "whenever a contract concerning real property is, in its nature and incidents, entirely unobjectionable, when it possesses none of those features which, in ordinary language, influence the discretion of the court, it is as much a matter of course for a court of equity to decree its specific performance as it is for a court of law to give damages for its breach." Section 1402.

In the view we take of this case, the contract sought to be enforced is, in its nature and incidents, unobjectionable, and the appellant is entitled to its performance. It appears to have been entered into in good faith, and to have been acted upon by the parties, and does not, under the view we have taken, conflict with any of the provisions of the pre-emption act.

Judgment reversed, and let a decree be entered as prayed for in plaintiff's complaint; and that he be required in the decree to pay to the respondent Crews the $100 upon demand of the same.

SUPREME COURT OF NEW MEXICO.

(3 N. M. [Gild.] 448)

THOMPSON, Adm'x, etc., and others v. MAXWELL LAND GRANT & RY. Co. and others.

Filed March 14, 1885.

1. EQUITY-PRACTICE AND PLEADING

FENDANT.

AMENDMENT TO BILL-RIGHTS OF DE

Any amendment to a bill in equity, no matter how trivial, gives to the defendant the right to file a new answer, making an entirely new defense, and even contradicting his former answer.

2. SAME-INFANT DEFENDANT-ARRIVAL AT AGE-RIGHTS AS TO SUIT.

Upon an infant defendant's coming of age, he can disregard the answer set up for him by his guardian ad litem, and file an entirely new answer for himself. 3. SAME-CASE.

The court reviews the various proceedings had with reference to the case, reverses the ruling of the court below, and remands the case, with instructions that defendants be permitted to restore to their answers the parts stricken out, and that the cause then proceed to trial.

Error to the district court for Colfax county.

Caldwell, Yeamans, Wells, Smith & Macon, for plaintiffs in error. Catron, 'Thornton & Clancy and Frank Springer, for defendants in

error.

BELL, J. The facts in this case are substantially as follows:

On the first day of August, 1870, the Maxwell Land Grant & Railway Company, Lucien B. Maxwell, and Luz B. Maxwell, his wife, filed in the district court of Colfax county their bill in equity against Guadalupe Thompson and George W. Thompson, her husband, and Charles Bent, Juliano Bent, and Alberto Silas Bent, three infant children of the said Guadalupe Thompson, by Alfred Bent, her former husband.

An amended bill was filed on the eleventh day of January, 1873. This amended bill states that in 1841 the republic of Mexico granted certain lands to Charles Beaubien and Guadalupe Miranda,-the same now commonly known as the Maxwell land grant; that in 1860 the grant was confirmed by act of congress; that afterwards Maxwell and his wife became the sole owners of the said premises, and, in 1870, conveyed them to the Maxwell Land Grant & Railway Company. With certain exceptions, the bill then sets forth that in September, 1859, Alfred Bent, since deceased, Estefana Hicklin, and Alexander Hicklin, her husband, Teresina Bent, and Aloys Scheurick, her husband, instituted their bill in the district court for Taos county against the said Maxwell and wife, and sundry other persons, claiming an undivided onefourth part of this grant, as heirs at law of Charles Bent, their father and ancestor; alleging, in substance, that, by parol agreement between the original grantees and the said Charles Bent, the said Charles Bent was equitably entitled to such undivided interest; and praying that the defendants in that bill might be declared to hold the premises, in respect to the undivided one-fourth, in trust for the said complainants.

The bill further sets forth that at the May term, 1865, of the Taos district court a decree was entered, which in this bill is termed interlocutory in substance, establishing the rights of the plaintiffs, and declaring that in the lifetime of the said Charles Bent, Beaubien and Miranda held the legal title and estate in and to one undivided one-fourth part of the grant in trust for Charles v.6p,no.4-13

Bent; that, upon the decease of the said Charles Bent, the complainants in this suit succeeded to this equitable interest; and decreeing partition; that commissioners were appointed, etc.

The bill further sets forth that afterwards, and in the life-time of the said Alfred Bent, the plaintiffs in the said suit being all sui juris, before any steps had been taken to execute the decree, entered into an agreement of compromise with Maxwell, whereby, in consideration of $18,000 to be paid them by Maxwell, they agreed to release Maxwell and wife of the said trust in equity; that afterwards, and about the fifteenth of December, 1865, Alfred Bent died, leaving as his sole heirs at law three minor children, to-wit: Charles Bent, Juliano Bent, and Alberto Silas Bent; that at the April term of the Taos district court, in 1866, the death of the said Alfred Bent was suggested, and the said three minors were made parties plaintiff, and their mother, Guadalupe Bent, was appointed their guardian ad litem; and it was afterwards made to appear to the court that the aforesaid agreement had been entered into for the extinguishment of the said claim and trust, and thereupon, at the request and with the consent of the solicitors of the parties, it was ordered that interlocutory decree, declaring said trust and equity, and all orders made in virtue thereof, be vacated; that Maxwell should pay to the plaintiffs $18,000, one-third to Scheurick and wife, one-third to Hicklin and wife, and one-third to and among the children of Alfred Bent, to be paid to their guardian ad litem; and that the said Hicklin and wife, Scheurick and wife, and Guadalupe Bent, guardian ad litem of the infant defendants, should, within 10 days from the date of that decree, execute and deliver to Maxwell a good and sufficient conveyance of their right.

The bill further sets forth that on the third day of May, 1866, Maxwell paid said sum of $18,000, as directed by the said court, except that the said sum of $6,000 was paid to the said Guadalupe Bent, as administratrix of the estate of Alfred Bent, and not as guardian ad litem of the infants; that on the third day of May, 1866, Hicklin and wife executed a like conveyance; and that on the third day of May, 1866, the said Guadalupe Bent undertook to convey to the said Maxwell all right and interest of the said children of Alfred Bent in the premises.

The bill further alleges that by reason of certain errors and irregularities in said proceedings, it is doubtful whether, as against the minor heirs of the said Alfred Bent, it sufficiently appears that they have no equitable or other interests in the said premises; and that such doubt creates a cloud upon the title to the premises, which can only be removed by the interposition and decree of the court; that among other irregularities are the following: That it does not appear, as the fact is, that the agreement for the sale of the equitable interest of the said Alfred Bent was made between the said Maxwell and the said Alfred Bent in the life-time of the latter; that the interlocutory decree should not have been set aside, but should have been modified; that the money payable for the equitable interest of the said Alfred Bent should have been directed to have been paid to the personal representatives of the said Alfred Bent, and not to the guardian ad litem of the minor children; that the court ought, by a proper decree, to have adjudged the trust, or the equitable claim, extinguished; and that the court had no jurisdiction to order a conveyance by the guardian ad litem of the infants.

The bill further alleged that in fact the share of the said Alfred Bent in said $18,000 had passed into the hands of the personal representatives of the said Alfred Bent, namely, said Guadalupe Thompson, (late the said Guadalupe Bent, widow of the said Alfred Bent, but now the wife of the said George W. Thompson,) who, on the twelfth of April, 1866, was appointed administratrix of the estate of Alfred Bent by the judge of the probate court of the county of Taos; and the bill thereupon prayed that for the errors at law appearing upon the face of the decree of September 10, 1866, the same may be

reviewed and reversed in the points complained of; that the trust aforesaid might be decreed to be extinguished and terminated as against the defendants; and that plaintiffs might be decreed to hold the premises free of all trust in favor of the defendants, and all persons claiming under them, etc.

To this bill the infant defendants filed their answer by their guardian ad litem, asserting their infancy, and submitting their rights to the protection of the court. The adult defendants, having previously answered the original bill, filed their answer to the amended bill, responding only to the amendments, and denying that Guadalupe Bent undertook to convey to the said Maxwell the right, title, and interest of the minor children. Their answer to the original bill admits the grant and confirmation thereof; denies that Maxwell and his wife were at any time the sole owners of the premises, as alleged in the bill; denies the conveyance to the Maxwell Land Grant & Railway Company; admits the institution of the suit in equity of the said Alfred Bent and others, heirs at law of Charles Bent, and that the decree was given therein as alleged in the bill; denies that Alfred Bent at any time entered into any such agreement of compromise or sale as alleged in the bill; admits his death and the heirship of the minor children; and as to the proceedings alleged to have taken place at the April term of the court in 1866 refers to the record without admitting the validity or legality of the same, but protesting against the same as illegal, unjust, and void as to the minor heirs of Alfred Bent; denies that the minor heirs of Alfred Bent were in any manner divested of their estate in the grant; avers that Guadalupe Thompson, in making the pretended deed alleged to have been executed by her, was wholly ignorant of her duties and obligations as guardian ad litem; avers that the supposed deed of conveyance of the said Guadalupe Bent was illegal and void; and denies that $6,000 have passed into the hands of the said Guadalupe Thompson from the said Maxwell; but admits that a portion of the $6,000 may have so passed, but whether it was paid to her as administratrix or as guardian ad litem, she is, and was at the time of the payment, wholly ignorant.

Upon the issues thus raised, depositions were taken, and at the August term, 1873, a final decree was made and entered, declaring that the decree of September 10, 1866, in the Taos district court, was erroneous in sundry particulars, and directing that the said decree of September 10, 1866, given in the Taos district court, be in the said respects vacated and set aside, and that the premises be held by the Maxwell Land Grant & Railway Company, free of all trust in favor of Guadalupe Thompson, either in her own right or as administratrix of Alfred Bent, deceased, the said George W Thompson, or the said Charles Bent, Alberto Silas Bent, and Juliano Bent, or either of them. An appeal was taken to this court from the said decree, but the same was affirmed. An appeal was then prosecuted to the supreme court of the United States, and in that court the decree was reversed.

On February 25, 1880, there was filed in the office of the clerk of the Taos county district court a mandate of the supreme court of the territory, reciting that the decree of the Taos district court of September 4, 1878, the decree of affirmance given in the supreme court of the territory, and the decree of the supreme court of the United States, whereby the decree of the supreme court of the territory was reversed, and the cause remanded with directions to allow the plaintiffs to amend their bill as they should be advised, with liberty to the defendants to answer any new matter introduced therein; and the order of the supreme court of the territory at the January term, 1880, remanding the cause to the Colfax district court with liberty to amend, etc. At the March term, 1880, of the Colfax district court an order was entered, allowing the plaintiffs to amend their bill as they should be advised, and the defendants were allowed to answer any new matter which should be introduced in such amended bill. The effect of these amendments was to strike from the origi