ON PETITION EOR RE-HEARING.
Hoyt, J.In due time after the decision of this cause a petition for re-hearing was filed by the respondents. More than a month thereafter they filed a petition, supported by affidavits, to be allowed to introduce further proofs upon the merits of the controversy covered by the decision of the cause. Such petition states nothing to show why it was not filed before or at the time of the filing of the petition for re-hearing. Without some reason being given for the delay, it is not entitled to be considered. If, without any explanation of the reasons for such a course, motions or petitions in causes before this or any other court are filed out of their proper time, it will tend greatly to embarrass the administration of justice, and such a practice cannot with propriety be allowed. Especially is this true where the petition, like the one at bar, seeks to take advantage of a purely legal defense which does not very largely appeal to the conscience of a court of equity. The petition to be allowed to introduce further proofs must be denied.
The petition for re-hearing does not seriously attack the conclusions of this court in deciding the cause, so far as they determine that the appellants were in equity the owners of the property. The principal contention in such petition is as to the proper rule by which to determine the equities of the parties in adjusting the rights growing out *575of the improvements made upon the land by the respondents, and of their liability to the appellants for the use and occupation thereof. In discussing this question, the petition has assumed as a basis for argument the fact that the respondents had made such improvements as bona fide occupants of the property under color of title. Upon this basis it presents a strong case in favor of the rule therein contended for, and cites a large array of authorities in support of such rule. And if we could agree that the facts shown by the record warranted the assumption of such a basis for argument, we should doubtless agree with the respondents in their contention that the rule heretofore announced by this court was not according to the principles of equity. But, as we understand the law, the basis upon which the argument is predicated can only exist where one occupies the land of another under color of title in good faith without any knowledge whatever of the claim of the real owner. The facts of this case fail entirely to put the respondents in any such position. Not only is it not made to appear that they are such occupants, but on the contrary it affirmatively appears with reasonable certainty that they in no sense occupy such a relation to the land, and to the title of appellants. From all the circumstances surrounding the case, we are satisfied that at the time respondents entered upon the land it was in the possession of appellants, or those under whom they hold; that it was well known by all that such possession was founded upon an entry, or attempted entry, of the land by agents of the territory for university purposes. And it was only upon the assumption that such attempted selection for university purposes had been for some technical reason ineffectual, that they expected to maintain their entry thereof as a homestead. In other words, the respondents, at the time they made entry of the land, knew all about the claim of the appellants, or those under whom they hold, and knew *576that any right which they might assert, or possession which they might maintain as to the premises, was in direct opposition to the claim of appellants. They further knew that appellants, or those under whom they hold, were actively asserting an adverse claim to the land. Not only was this state of facts existing when the entry was made, but the same has continued until this time. At all times since said entry the appellants, or those under whom they hold, have been actively asserting a claim to the premises adverse to that of respondents, which claim has by the adjudication of this court now been held to have been at all times well founded.
Under these circumstances, the improvements made by the occupant cannot be said to have been made in good faith, and without knowledge of the adverse claim, and the rule contended for by the respondents cannot be invoked in the adjustment of the equities of the parties. In fact it is very doubtful whether or not under a strict construction bf the rights of the respondents they would be entitled to any relief at all on account of the improvements made by them upon the premises. But in view of the hardship of the case if they were allowed nothing for such improvements, we made the direction which we did in deciding the case, and we feel now as we did then, that it was as favorable to the respondents as the facts would warrant.
The petition for re-hearing must be denied.
Dunbar, C. J., and Stiles, Anders and Scott, JJ., concur.