8 Mont. 201
Mont.
1888
McConnell, C. J.

Action of ejectment. Demurrer to the complaint overruled, and answer filed. Demurrer to equitable defense sustained. Judgment for the plaintiff on the pleadings, and an appeal taken to this court. The appellant relies on several grounds of error for the reversal of this case. (1) Error in overruling demurrer to complaint. (2) Error in sustaining demurrer to equitable ground of defense set up in answer. (3) Error for abuse of discretion, in not allowing the denials in the answer to be amended, pending the motion for judgment on the pleadings.

1. The complaint avers that the plaintiff “is seised in fee and possessed of, and entitled to the possession and occupation' of, a certain tract or parcel of land.” This is demurred to, because “ indefinite and uncertain in this, that it does not state how the plaintiff became seised in fee and possession of said premises, .... but merely alleges a conclusion of law.” The decision of the court below in sustaining the sufficiency of the complaint in this respect is sustained by this court in the ease of McCauley v. Gilmer, 2 Mont. 204., In this case the court says: “ Upon an examination of all the authorities which have been cited by counsel, we are inclined to follow the ruling of the Supreme Court of California in Payne v. Treadwell, 16 Cal. 220. The only facts which are necessary to be alleged in a complaint of this character are that the plaintiff is seised in fee, or for life, or for years, as the case may be; that the defendant was in possession at the time of the commencement of the action; and that he withholds the possession of the same. The complaint in the case at bar contains the necessary allegations, and is therefore sufficient for the maintenance of this action.” The complaint is further demurred to, because it does not state facts sufficient to constitute a cause of action. It avers seisin and possession as above stated; that while so seised and possessed, the defendants entered and ousted plaintiff, together with appropriate averments as to the time and damage and venue and description. The demurrer was properly overruled upon this ground.

2. The equitable defense set up in the answer was demurred to, upon the ground that it did not state facts sufficient to constitute a cause of action. It admits an entry by mistake, and then avers that the defendants subsequently undertook to hold as *205under a contract of purchase from the Northern Pacific Railroad Company by virtue of the provisions of a circular issued by said company. The following are the substantial provisions of said circular, to wit: It gives notice of the discontinuance of the practice of sending out “ printed forms of acknowledgment of applications for lands in Montana,” for the reasons therein assigned. It then proceeds to inform.the public that “it will make no difference to actual settlers whether they have an application on file in this office or not, as the lands will be carefully examined before they are offered for sale, and all bona fide settlers, who may be found occupying the lands of the company, will be given the first opportunity to purchase the same at the minimum price; providedl, the lands are not of the character which are reserved by the terms of the resolution of the board of directors, adopted October 15, 1879, which reads as follows: ‘ Resolved, that the agricultural lands of the company west of the Missouri River to Puget Sound shall be offered for sale to the actual settlers at the government price of two dollars and a half per acre, with an addition of ten cents per acre, to be paid to the company to re-imburse it for the cost of selecting, surveying, and conveying said lands. This resolution does not apply to coal and iron lands, nor to lands required for town sites, nor in regions where water is scarce, to lands containing springs, or other natural supply, where it shall be for the interests of settlers at large that such water privileges shall not be exclusively held or controlled by any individuals, nor to lands required for the use of the company in connection with the operation of the road.’ No person who has settled on the lands of the company in good faith, with intention of establishing a home there, need have any apprehension that advantage will be taken of his situation. It will be the policy of the company, as it is to its interest, to treat all such settlers in a liberal manner. As rapidly as possible after the final location of the road, the lands will be examined, and due notice given, when they will be ready for sale.” The answer avers that the defendant, Frank Sanderson, entered upon the land in dispute on the-day of May, 1881, in good faith, believing that it was public land, for the purpose of making it his home, under the homestead laws of the United States; but that he subsequently found out that it was *206within the land grant of the Northern Pacific Railroad Company ; that he learned of the foregoing circular in October, 1881; that he thereafter remained in possession, under the promises of said circular, and with his co-defendant, has been in the open and notorious possession of said premises, up to the present time; that they, relying upon the terms of the agreement contained in said circular, in good faith, made extensive and' valuable improvements on said land; that said land does not come within the exception contained in said circular; that defendants are now, and ever have been, ready to perform their part of said contract; that the plaintiff knew of the defendants’ rights at the time of his purchase of the land in controversy. The question is, do the terms of the circular constitute a proposition for a contract with any bona fide settler, and do the averments of the answer show such acceptance of them as to make a contract between defendants and the northern Pacific Railroad Company? To make it a contract, the circular must contain a distinct proposition to sell, and there must be such an unequivocal acceptance of it, that it would be reciprocally binding, and capable of specific enforcement at the instance of either party. The circular says that “ it will make no difference to actual settlers whether they have an application on file in this office or not, as the lands will be carefully examined before they are offered for sale; and all bona fide settlers, who may be found occupying the lands of the company, will be given the first opportunity to purchase the same at the minimum price.” The circular also contains a resolution passed by the company to the effect that “ the agricultural lands of the company west of the Missouri River to the Puget Sound shall be offered for sale to actual settlers at the government price of two dollars and fifty cents per acre.” This contains a distinct proposal to bona fide settlers, to give them the preference in the sale of agricultural lands of the company. But there is no averment in the answer that the defendants ever notified the company of their acceptance of the proposed sale. It is true, the company waived notice by advising the settler that an application to purchase was not necessary, and by refusing to send out printed forms for such applications. But this cannot remove the difficulty in the way of the defendants; for, without such acceptance in writing, there can be no *207contract which the company can enforce against the settler. And to be binding upon the company it must be binding upon him. Where there is no acceptance in writing the settler has nothing to rely on except the good faith of the company. The cases of Boyd v. Brinckin, 55 Cal. 428, and Southern Railroad Co. v. Terry, 70 Cal. 484, are referred to, to sustain the answer of the defendants. We fully agree with the doctrine laid down in these cases; but in each of them there was an acceptance of the terms of the circular letter of the company in writing, filed with the company. In the former case, the court says: “The objection that the defendant, by his acceptance, did not bind himself to buy the land upon the terms proposed by the company, does not seem to us to be tenable. His acceptance is evidenced by his settling upon and improving the land, and by filing an application to purchase it. Both by acts and in writing did he manifest such acceptance. If that did not bind him to purchase the land, on the terms proposed by the company, we can conceive of no form of acceptance by which he could bind himself to purchase it on those terms.”

From the above it will be observed that the settler in that case not only accepted the proposal by his acts, in living upon and improving the land, but in writing, filed with the company. If the agent of the company had found the defendants in possession of its lands, what was there in that circumstance alone that would have enabled the company to have treated it as a sale, and enforced a specific performance of the contract? Certainly, nothing at all. There is abundance in the circular of the company to bind it, if the defendants had done enough to bind .^themselves.

And, further, the defendants, in their counter-claim, proceed upon the implied theory, although they do not distinctly aver it, that the plaintiff holds under the Northern Pacific Railroad Company. If so, they should have averred it, and averred a tender of the purchase money, and tendered it in court; and should have sought to have held the plaintiff as trustee of the title for themselves, as held in the case of Boyd v. Brinckin, supra. The want of mutual obligation is fatal to defendants’ answer, and the demurrer was properly sustained.

3. After the case was called for trial, a motion was made by *208plaintiff for judgment on the pleadings, upon the ground that the denials in the answer of the material averments in the complaint were insufficient. The denials were admitted to be insufficient, but, pending the motion for judgment on the pleadings, the counsel for defendants moved to amend said denials, which motion was disallowed, and judgment rendered for plaintiff. Was this an abuse of the discretion of the court? We think not, under the facts as disclosed by the record. The complaint was filed July 16, 1885. Service of summons, August 1, 1885. Defendants’ demurrer overruled, December 4, 1885, and leave to answer in sixty days. It seems that this answer was suppressed for some reason, as the record shows an amended answer was filed September 21, 1886, nearly a year later. This amended answer contained the alleged equitable defense which we have just had under consideration, the demurrer to which was sustained May 25,1887, the defendants being again given leave to answer. At the October term following, the case was called for trial, and the defendants again asked for delay, that they might amend what answer they had left. And thus after two years of dilatory pleading this case was brought to a close. It seems to us that in this case “patience had ceased to be a virtue,” and tho court did right in refusing the proffered amendment. Let the case be affirmed, with costs.

Judgment affirmed.

De Wolfe, J., and Liddell, J., concur.