granting the motion of the Ohio Oil Company for non-suit. It should have been kept in the case pending settlement of the controversy between the other parties. (Frank v. Stratford-Handcock, 13 Wyo. 37.)

Edward T. Clark, Herbert V. Lacey and John W. Lacey, for defendants in error.

The memorandum opinion of the trial court is not material to this inquiry. (Little v. Co., 100 S. W. 561; Holland v. Ry. Co., 101 N. W. 608; Martin v. Martin, 67 N. E. 1: Morgan v. Co., 107 Pac. 695; Randall v. Co., 43 N. E. 540.) There was a separate contract for each parcel of land and each admitted of separate execution in the matter of a separate agreement. (Perkins v. Hart, 11 Wheaton (24 U. S.), 237, 250; Small v. Co., 20 Fed. 753: Myers v. Croswell, 45 O. S. 543; Wooton v. Walters, 14 S. E. 734; McGrath v. Cannon, 57 N. W. 150.) The contract as to Parcel 3 expired not later than May 13th, 1914, removing any possible right to specific performance. Plaintiffs failed. to perform an election to furnish a stipulated bond; under the facts there was no waiver of this requirement. (Rice v. Deposit Co. (8th Cir.), 43 C. C. A. 270.) A waiver in law is the intentional relinquishment of a known right. (Aronson v. Ins. Co., 99 Pac. 537.) There must be acts of relinquishment amounting to an estoppel. (Bank v. Maxwell, 55 Pac. 980; Perin v. Parker, 18 N. E. 747; Holdsworth v. Tucker, 143 Mass. 369; Berman v. Assc., 78 Atl. 462: List v. Chaise, 88 N. E. 120.) No estoppel is pleaded and the point is not available. (Nebraska Co. v. Blust, 60 N. W. 1016; Homberger v. Alexander, 40 Pac. 260; Union Co. v. Bank, 72 Pac. 586.) But no estoppel was proven. (Norton v. Kearney, 10 Wis. 1043.) There was no evidence that plaintiff accepted benefits; there was no possession and no improvements made by plaintiff. The doctrine of relation as to the passing of land titles has no application here. Equity will not aid plaintiffs in error, since it is clear that they are seeking to open a contract which on their agreement had been closed, and this for the purpose of profiting by oil discoveries. (Whitney v. Fox, 166 U. S. 637; Turn

lick v. Marbury, 91 U. S. 587; Johnson v. Standard Co., 148 U. S. 360; Patterson v. Hewitt, 195 U. S. 309.) The decree of the court below should be affirmed.

POTTER, JUSTICE.

This is an action for specific performance wherein, as the case is presented here, the plaintiffs are seeking a decree requiring execution and delivery to them of a good and sufficient deed conveying a tract of land containing approximately forty acres and described as Lot Two (2) of Section Nineteen (19) in Township Forty-six (46) North of Range Ninety-eight (98), West of the 6th Principal Meridian, in this state. Upon a trial in the District Court, judgment was rendered upon a general finding in favor of the defendants, and the case is here on error.

As the plaintiffs in error were plaintiffs below and the defendants in error defendants below, they will be referred to respectively as plaintiffs and defendants, when not mentioned by name, but a reference to the defendants collectively will include only the Rocky Mountain Cattle Company and L. G. Phelps, against whom only a decree for specific performance is sought. The plaintiffs are George Merrill, H. J. Guthrie Nicholson, and George Pennoyer.

The contract upon which the action is based is in writing. and set out in full in the amended petition upon which the action was tried, and the material parts thereof are as follows:

"This Agreement Made and entered into in triplicate this 9th day of May A. D. 1912 by and between Rocky Mountain Cattle Company, a corporation, duly organized and existing under the laws of the State of Wyoming, by L. G. Phelps, its President, duly authorized, party of the first part, and George Merrill, G. J. Guthrie Nicholson and George A. Pennoyer, of Embar, Big Horn County, Wyoming, parties of the second part, and L. G. Phelps, witnesseth:

"That Whereas, Under the terms of a certain contract made and entered into by certain of the stockholders of the

Rocky Mountain Cattle Company on the 13th day of August 1910 wherein it was agreed by the said stockholders that the assets of the Company should be distributed upon terms therein designated, which said contract was duly ratified at a regular meeting of the stockholders of the said Company at the office of the Company on August 13th, 1910, and,

"Whereas, Under the terms of the said contract there was no time limit placed upon the acquisition of titles to certain lands then initiated, which said lands were subsequently conveyed by warranty deed to George Merrill, G. J. Guthrie Nicholson and George A. Pennoyer under the terms of the contract aforesaid, and

"Whereas, The parties hereto have agreed that title to the following lands included in the lands described in the warranty deed aforesaid, viz: (describing several tracts of land, containing a total of 1040 acres, and including the 40 acre tract aforesaid) which were initiated at the date of the contract aforesaid, so entered into, should not have been included in the Warranty Deed aforesaid, title not having inured to the Rocky Mountain Cattle Company.

"Now, Therefore, for and in consideration of the payment of the sum of Twenty Thousand Eight Hundred ($20,800.00) Dollars to them in hand paid, the receipt whereof is hereby acknowledged, the parties of the second part herein do hereby agree to execute and deliver to the party of the first part herein a quit-claim deed to all of the property hereinbefore enumerated, and the party of the first part herein agrees that it will use all due diligence to obtain title to the lands hereinbefore described within Two (2) years from this date and will convey the same to the parties of the second part herein for the sum of Fourteen ($14.00) per acre, it Being Understood and agreed that the party of the first part herein is not required, under the terms of this contract, to obtain such title whenever it would be required to pay any sum in excess of Fourteen ($14.00) dollars per acre for such land. And the parties of the second part herein agree that they will pay the said sum of Fourteen ($14.00) Dollars per acre upon tender of good and sufficient title, as

the same may be secured from time to time during the period of Two (2) years aforesaid, to any of the lands herein set forth and will execute a good and sufficient bond in favor of the party of the first part herein conditioned that upon tender of good and sufficient deed to any of such lands save and excepting where surface rights only are required by the party of the first part under the terms hereof, then and in that event such surface rights shall be considered a full - compliance with the terms hereof and such payment of Fourteen ($14.00) dollars per acre shall be made, it being understood and agreed, however, that such purchase and payment of and for the lands hereinbefore designated is conditioned upon the sale and disposal of all of the stock of the parties of the second part herein in the Rocky Mountain Cattle Company under the terms of this agreement prior to such purchase and payment; should such title be perfected and offered before the sale of the stock of the parties of the second part herein, then the payment shall be made at the rate of Twenty ($20.00) per acre for such land.

"It is understood and agreed by and between the parties. hereto that the right of possession of the parties of the second part, without let or hindrance of the party of the first part, to the lands hereinbefore set forth shall continue during the period of Two (2) years herein designated and that the Quit-claim deed shall contain a clause to that effect and the parties of the second part paying the taxes thereon.

"It is understood and agreed by and between the parties hereto that a deed or deeds to the lands hereinbefore designated, as titles shall be acquired from time to time under the terms hereof, shall be tendered to S. C. Parks, of Cody, Wyoming, who shall be authorized by the parties of the second part herein to receive such deed or deeds and make payment there for within Thirty (30) days of such tender.

"It is further understood and agreed by and between the parties hereto that the party of the first part herein does not guarantee the procurement of title to any of the land hereinbefore designated within the time designated, but agrees to use all reasonable diligence to procure the same under the

terms and conditions of this contract and the parties of the second part agree that they will not molest or hinder the party of the first part in its endeavor to procure such titles.

"It is further understood and agreed by and between the parties hereto that at the expiration of Two (2) years from the date hereof the party of the first part shall submit to E. E. Enterline and E. T. Clark of Sheridan, Wyoming, at Sheridan, Wyoming, such muniments of title as it or its agents or trustees then possesses or possess to lands hereinbefore described but which have not been, in the meantime, conveyed, to the parties of the second part, under the terms of this agreement, and the said E. E. Enterline and E. T. Clark shall thereupon determine what muniments of title are sufficient, in their judgment, to warrant the party of the first part conveying or assigning its right thereto in the lands to which such muniments of title pertain to the said parties of the second part, as well as the parties of the second part receiving the same, and designate the character of instrument or instruments in writing by which the ownership thereto shall pass from the party of the first part to the parties of the second part, the parties of the second part agreeing to pay the sum of Fourteen ($14.00) Dollars per acre for all such lands or muniments of title so conveyed or assigned."

The petition aforesaid, after setting out said contract, describes the lands covered thereby to which said petition relates by classifying them as Parcels 1, 2, 3 and 4, respectively, and designating the land in controversy here as Parcel 3. The allegations as to Parcel 4 were eliminated upon demurrer. The petition alleges and the answer admits that title to the separate tracts described as Parcels 1 and 2 respectively was acquired by the defendant Phelps and conveyed to the plaintiffs within the two year period prescribed by the contract,-title to Parcel I having been acquired in May, 1913, and conveyed to plaintiffs in August of that year, and title to Parcel 2 having been acquired in June, 1912, and thereafter conveyed to plaintiffs. The averment as to Parcel 2 does not state the date of its conveyance to the