Opinion of

The amended answer and cross-petition of the appellee seems to have conformed in every particular to the opinion of this court' rendered on the former appeal, and the court did not err in permitting it to be filed.

The amended answer tendered by the appellant was inconsistent with his original answer, in so far as it related to the 42 acres of land. In the original answer he sought to enforce the contract when he knew it was not in the power of the appellee to convey to him more than the 42 acres; and, while he did not in terms say so, it is evident that he then only sought a conveyance for so much of the 106 acres as had not been sold under the decree of the United States court.

So much of the answer as sought to set up the alleged indebtedness of the appellee, on account of the matters therein stated, was *723properly refused because jt came too late. The facts, if they existed as alleged, must have been known to him when he filed the original answer, and no excuse is given for a failure to set them up then.

Wherefore the judgment is affirmed.