title to or interest in the premises; and their acts of performance of their legal duties in respect to the roads are not acts of ownership or occupancy. No assertion by them of their statutory control of roads, and no assertion by individuals of their right to use the roads, amounts to a claim of title to or interest in the premises. The plaintiff, therefore, has no remedy by ejectment, because there is no person or body who by the terms of the statute is liable to the action. See Child v. Chappell, 9 N. Y. 246.

Nor is there any other proceeding at law from which the plaintiff could derive any benefit. Actions of trespass against individuals using the road would be burdensome and interminable, and in the end would determine nothing; and no such action could be maintained against the board for the acts complained of. These acts are threatened to be continued as long as the plaintiff attempts to fence its right of way, so that it is deprived, and for an indefinite period will be deprived, of the full beneficial use and enjoyment of its property; and it is absolutely helpless unless equity shall interpose to afford relief. We cannot conceive of a case that comes more completely within the jurisdiction of a court of equity than the one made by the complaint. If the facts are as they are stated, the plaintiff is entitled, under the prayer for general relief, to a perpetual injunction, restraining the defendants from in any way interfering with or molesting it or its employés in the work of fencing the right of way. An investigation of the facts upon which this principal relief may be granted or withheld will involve a determination, as between the plaintiff and the defendants, of the questions whether the plaintiff's right of way was acquired in pursuance of law, and whether any portion or portions of it conflict with a public road which had, prior to its acquisition, been legally established. This is not a proceeding to quiet title under the Code, because the claim of the defendants is not a claim of such an estate in the premises adverse to 'the plaintiff as is contemplated by the statute authorizing the proceeding. Neither do we rest our decision upon the established ground of the jurisdiction of a court of equity to restrain vexatious litigation, and prevent a multiplicity of suits, although there is some analogy between that class of cases and this case. The acts of interference with and prevention of the plaintiff's enjoyment of its property by the defendants, and for which acts they cannot be reached in a court of law, are the grounds of the plaintiff's right to relief; and, according to the principles governing the jurisdiction and proceedings of courts of equity, the case is one peculiarly of equitable cognizance.

The defendants should have been ruled to answer the complaint, and it was error to sustain the demurrer. The judgment must therefore be reversed. Reversed.

1. The unexplained delay of the vendee to sue for the specific performance of a contract for the sale of a town lot for 31⁄2 years after the vendor refused to comply with the contract, and took possession of the lot, renders him guilty of laches which bars his right to such relief.

2. A person may, by his laches, be barred from enforcing specific performance of a contract, though the statutory period of limitations has not elapsed.

3. Where the trial court amends its judg ment on motion of defendant to correct certain defects therein, an appeal by defendant from the original judgment, and from an order denying the motion for a new trial, will not be dismissed on the ground that it should have been from the amended judgment, as the appeal from the order denying the new trial brings the entire case before the court.

4. The fact that the clerk enters a judgment in his book labeled "Minute Book," instead of in that labeled "Judgment by the Court," does not render the judgment void, so as to require the dismissal of an appeal therefrom.

Harwood, J., dissenting.

Appeal from district court, Cascade county; C. H. Benton, Judge.

Action by Jeremiah Wolf against the Great Falls Water-Power & Town-Site Company and others. There was a judgment for plaintiff, and defendants appeal. Reversed.

On the 22d day of January, 1887, the plaintiff and James J. Hill and Conrad Gotzian, and their wives, entered into the following agreement: "Articles of agreement made this 22nd day of January, in the year of our Lord one thousand eight hundred and eighty-seven, between James J. Hill and Mary T. Hill, his wife, Conrad Gotzian and Caroline Gotzian, his wife, by Charles H. Benedict, their attor ney in fact, all of the city of St. Paul, county of Ramsey, and state of Minnesota, all parties of the first part, and Jeremiah Wolf, of Great Falls, county of Choteau, territory of Montana, party of the second part, witnesseth, that the said parties of the first part hereby covenant and agree that if the party of the second part shall first make the payments and perform the covenants hereinafter mentioned, on his part to be made and performed, the parties of the first part will convey and assure to the party of the second part, in fee simple, clear of all incumbrance whatever, by a good and sufficient warranty deed, the following lot, piece, or parcel of ground, situate, lying, and being in the town of Great Falls, in the county of Choteau, territory of Montana, and more particularly described, according to the plat thereof on file in the office of the recorder in and for said Choteau county, as follows, to wit: Lot one (1) in block four hundred and eleven (411). It is hereby mutually understood and agreed that the above premises are sold to said second party for improvement, and the said party of

the second part agrees and obligates himself, heirs, and assigns that he or they will, on or before the first day of August, 1887, build and construct a frame building, of the value of not less than five hundred dollars ($500), and that all improvements placed on said premises shall remain thereon, and shall not be removed until final payment of the consideration hereinafter named. And the said party of the second part, in consideration of the premises, hereby covenants and agrees to pay to the said parties of the first part the sum of three hundred and fifty dollars ($350), lawful money of the United States, in the manner following: Eighty-seven and 50/100 dollars ($87.50) on the execution of this contract; eighty-seven and 50/100 dollars ($87.50) on the 22 day of April, 1887; eightyseven and 50/100 dollars ($87.50) on the 22nd day of July, 1887; eighty-seven and 50/100 dollars ($87.50) on the 22nd day of October, 1887,-with interest at the rate of ten per cent. per annum, payable semiannually, on the whole sum remaining from time to time unpaid, and to pay all taxes, assessments, or impositions that may be legally levied or imposed upon said land subsequent to the year 1886. And in case of the failure of the said party of the second part to make either of the payments, or perform any of the covenants on his part hereby made and entered into, this contract shall, at the option of the parties of the first part, be forfeited and determined, and the party of the second part shall forfeit all payments made by him on this contract; and such payment shall be retained by said parties of the first part in full satisfaction and liquidation of all damages by them sustained, and they shall have the right to reenter and take possession of the premises aforesaid. It is mutually agreed that all the covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors, and administrators and assigns of the respective parties. In witness whereof, the parties to these presents have hereunto set their hands and seals the day and year first above written. James J. Hill and Mary T. Hill, his wife, by Their Attorney in Fact, Chas. H. Benedict. Conrad Gotzian and Caroline Gotzian, his wife, by Their Attorney in Fact, Chas. H. Benedict. Jeremiah Wolf. Signed, sealed, and delivered in the presence of Eugene P. Hickey, William A. Stephens." Afterwards, the lot in controversy, with a large tract of other lands, was sold to the defendant company, which assumed to carry out and perform the above agreement with the plaintiff. The evidence shows and the court finds that the plaintiff made but one payment on the lot in controversy during the time fixed for the payments thereof, on said agreement; that he failed to pay the taxes thereon before commencing this suit, amounting to $60, which the defendant company paid; that he failed to complete the house on the lot, according to the terms of the agreement, but, instead, erected a house,

which he did not complete, of the value of about $330. The plaintiff entered upon the premises in controversy at the time of the exe cution of said agreement, and occupied them until September or October of the same year, when he moved to his ranch. The court finds that the plaintiff on the 22d day of October, 1887, tendered the residue of the purchase money, and interest, which he had failed to pay at the times specified therefor in said agreement, which the defendant company refused to acccept. After the plaintiff left the premises the defendant company took possession, finished the house which plaintiff erected thereon, fenced in the same, and planted trees thereon, and has ever since held the possession thereof, declaring said agreement forfeited. On the 29th day of April, 1891, the plaintiff commenced this suit for a specific performance of the contract of sale of the said lot in accordance with the terms of said agreement. The case was tried by the court without a jury. The court made a good many findings of fact, including the facts set out in the above statement. Among other findings of fact by the court, we have the following: "(16) That at the time of entering into the contract for the sale of the lot in controversy the vendors, Hill and Gotzian, were the owners of a large amount of land in the neighborhood of said lot, which they had platted, and a part of which, being six in every fourteen lots, they were engaged in selling on contracts similar to the one made with plaintiff. (17) That the object and purpose of such vendors in such contract, requiring the purchaser to erect a building, was to secure an increase in the value of the property contiguous thereto. (18) That the plaintiff knew at the time of entering into the contract herein of the ownership by the vendors of the neighboring property. (19) That the erection of a building upon the lot in controversy would tend to advance the market value of the neighboring property owned by the vendors. (20) That, at the time such contract was declared forfeited by the defendant Paris Gibson, the building erected upon such lot by the plaintiff was incomplete, in this: that it was without siding or corner boards, and that such building was the only improvement made thereon by the plaintiff." The court, upon the findings of fact, rendered judgment for the plaintiff, for specific performance, upon his paying to the defendants the sums due them, according to the terms of said agreement. The defendants filed their motion for a new trial. This was denied, and from the order of the court refusing a new trial, as well as the judgment, this appeal is prosecuted.

A. J. Shores, for appellants. E. L. Bishop, for respondent.

PEMBERTON, C. J. (after stating the facts). Upon the filing of the record of the case in this court, the respondent moved this court to dismiss the appeal, upon the grounds that it appears that the judgment of the

court was not entered in the proper book. It appears that the clerk of the lower court kept a book labeled "Judgment by the Court," kept for the sole purpose of entering judgments by the court, and that the judgment in this case was not entered in this book, but it was entered in the "Minute Book" of the court. It also appears from the record of the case that the court on the 17th day of October, 1891, made and filed its findings and decision and judgment; that, on the 27th day of October, defendant filed its notice of intention to move for a new trial; that thereafter, on the 4th day of November, defendant excepted to the findings of the court, and moved the court to correct certain defects therein; that on the 11th day of November the court made and filed an amended finding, decision, and judgment, giving the defendant judgment for $75.30 more than by the original findings and judgment. And, as the appeal is from the original judgment, the respondent contends it should be dismissed. If this appeal were from the judgment alone, this last might be a serious question. But the appeal is also taken from the order of the court denying appellant's motion for a new trial, and, as this appeal brings the whole case here, we do not think it should be dismissed for the reasons assigned by respondent. It appears also that the judgment of the court was rendered and entered; but entered in the "Minute Book," instead of the book labeled "Judgment by the Court." We do not think the judgment was invalid, especially between these parties, on that account, or that no appeal would lie therefrom.

There are a great many assignments of error in this record. The appellant contends and urges that the evidence shows that time was of the essence of the contract, and that the evidence shows that the plaintiff failed to comply with its terms in many material particulars, and has shown no excuse for not complying, and is therefore not entitled to specific performance. The court found that time was not of the essence of the contract. Whether the court erred in this finding or not; whether time was of the essence of the contract, as shown by the evidence and circumstances surrounding the case,-we do not deem it necessary to decide in determining this case, while we confess that many of the facts and circumstances go far to support the theory that time was considered as of the essence of the contract by the parties at the time of its execution. At least, we think it cannot be insisted, under all the facts and circumstances, that time was not material. As we view it, the vital question in the case is this: Was the plaintiff guilty of such laches, under all the facts and circumstances, after being notified by the defendant.company that it would not fulfill its part of the contract, in bringing his suit, as to debar him of equitable relief? "Specific performance is not an absolute right. It rests in ju

dicial discretion, exercised according to the principles of equity, and with reference to the facts of the case." 4 Gen. Dig. U. S. 1710, and authorities cited. See, also, 2 Beach, Mod. Eq. Jur. § 566, and authorities cited. In Knox v. Spratt (Fla.) 6 South. 924, the court say: "The bill shows no reason for this long delay. Although time is not of the essence of the contract, yet if the complainant is not active and diligent in the assertion of his claim, and permits an unreasonable time to elapse, it will be presumed that he has acquiesced, and has abandoned any equitable right he might have had to enforce the contract. In the case under consideration the complainant waited two years and seven months, and he shows no reason why he delayed so long to file his bill. In Watson v. Reid, 1 Russ. & M. 236, the plaintiff, who was the vendor, did not file his bill for specific performance until about one year afterwards. The bill was dismissed on one ground that the plaintiff had unreasonably delayed filing it. In the case of Gentry v. Rogers, 40 Ala. 442, the plaintiff, though notified two years before the time for performance that the defendant would not perform the contract, waited nine months after the time when the contract should have been performed before filing his bill. 'In such cases, though time be not of the essence of the contract, a court of equity will not allow of a delay which would enable a party to take advantage of the turn of the market, and have the contract performed only in case it suits his interest.'" In Delavan v. Duncan, 49 N. Y. 485, the court say: "The contract was made November 6, 1862, for the sale of a house and lot in the city of New York for the price of $5,500, to be paid on the 15th of the same month, or as soon thereafter as the title could be searched, not to exceed thirty days. The judge finds as facts that early in December, 1862, about twenty days after making the agreement, the title to the property having been searched, the plaintiff said to the defendant that there were judgments recorded against him (describing such judgments), and requested him to have said liens removed, and stated that he was then ready to fulfill his agreement; that defendant said he could not or would not remove the liens. The action was not commenced until August, 1866. The inquiry is whether, upon these facts, the plaintiff was entitled to judgment for specific performance, and, if not, whether the evidence authorized the finding of such additional facts as would entitle him to such judgment. Fry on Specific Performance (section 730), a work of acknowledged authority, says: "The court of chancery was at one time inclined to neglect all consideration of time in the specific performance of contracts for sale, not only as an original ingredient in them, but as affecting them by way of laches. But it is now clearly established that the de lay of either party in not performing its terms on his part, or in not prosecuting his

on his part." See, also, cases cited in note. Mr. Pomeroy, in his work on Equity Jurisprudence (volume 3, § 1408), states the doctrine thus: "Although time is not ordinarily essential, yet it is, as a general rule, material. In order that a default may not defeat a party's remedy, the delay which occasioned it must be explained and accounted for. The doctrine is fundamental that a party seeking the remedy of specific performance, and also the party who desires to maintain an objection founded upon the other's laches, must show himself to have been ready, desirous, prompt, and eager.'

In

In the case at bar the plaintiff not only failed, as the evidence shows, to strictly comply with his part of the contract of sale, although he had ample reason to presume, from the feeling existing between the parties in relation to the matter, that a strict compliance would be required, but after being notified by the defendant company that it would not perform its part of the contract, after his tender of the purchase price of the lot was refused, and after the defendant company had re-entered and taken possession of the premises in controversy, he waited for more than three years before commencing his suit for specific performance. This delay is not explained, or in any way attempted to be explained, or excused. fact, it seems that no excuse for this delay existed. The plaintiff, in his testimony, uses this language: "I had several thousand dollars last fall, and had at all times the ability to get money." The court finds that the object of the vendors in said contract, in requiring plaintiff to erect such a building on the lot, was to enhance the value of the property contiguous thereto, owned by defendant; that the erection of such a building thereon would have such effect; and that plaintiff was aware of these facts. The lot in controversy is situate in the city of Great Falls. At the time the contract was sought to be enforced, Great Falls was a small, struggling village. At the time of the commencement of this suit,-more than three years after the expiration of the contract,-it had grown to be a flourishing young city. estate had vastly increased in value, and its population had grown from hundreds into thousands. The circumstances and surroundings of the parties were different at the commencement of this suit from what they were at the date fixed for the completion of the contract sued on. Could the plaintiff lie by and wait for three years to see whether his contract was a good one, and, if so, ask a court of equity to enforce it, and, if a bad one, ignore and renounce it? We think not. The doctrine involved in this branch of the case is very elaborately discussed in Green v. Covillaud, 10 Cal. 317; and see authorities cited in this case. In the case just cited the court say: "In California, where such rapid and sudden fluctuations in the affairs and fortunes of men oc

Real

curred as in all history is unexampled, and where the work of years was accomplished in months, it is impossible to hold that time, as an element of past contracts, should be measured by the standards which obtain in old and settled states, where everything is comparatively stable and permanent; where capital is abundant, titles ascertained, and interest is low. The peculiar circumstances, showing the value of punctuality here, call for a corresponding rule, whereby the courts should exact it; and we conceive that it would be as unjust as impolitic and demoralizing to make new contracts for parties, by extending time they never intended to give, for it would be to encourage violation of engagements, and foster a spirit of reckless speculation."

We think it the well-settled doctrine that a party suing for a specific performance of contract, in a court of equity, must show that he has been "ready, desirous, prompt, and eager" in complying with his part of the contract, or in filing his bill and prosecuting his suit for relief, in case of failure or refusal to fulfill on the part of his adversary, or show good and sufficient reason for his delay in so doing. In this case the plaintiff has not done so. In failing to do so, we . think the plaintiff has been guilty of such laches as to debar him of the right to the relief sought. But it is contended that the statute of limitations controls in such cases, and that as a consequence the plaintiff would not be guilty of fatal laches, if he has brought this suit within the time prescribed by the statute of limitations. In Beach on Modern Equity Jurisprudence (volume 1, § 20) the rule is thus stated: "Ordinarily courts of equity adopt the time fixed by the statute of limitations in analogous cases as the period at the end of which they will conclude recovery in equity. And it is said that courts of equity act not so much in analogy as in obedience to statutes of limitation of legal actions, because, where the legal remedy is barred, the spirit of the statute bars the equitable remedy also. Though, on the equity side of the United States courts, the statute of limitations cannot be pleaded, the court may look to such statute for analogies in applying the doctrine of laches. But the rule that the statute furnishes an analogy is not inflexible, and its application will always depend upon the particular circumstances of the case. In some of the states there are statutes of limitation applicable to equitable actions, but it is held that the period of limitation of equitable actions, fixed by the statute, is not, where a purely equitable remedy is invoked, equivalent to a legislative direction that no period short of that time shall be a bar to relief in any case, or preclude the court from denying relief in accordance with equitable principles for unreasonable delay, although the full period fixed by the statute has not elapsed since the cause of action accrued." See, also, cases