In this case, after considerable delay, a rehearing was granted. Having written the opinion which temporarily prevailed, I have, after reconsideration, seen no reason for changing the result arrived at when the case was originally decided and reported. Keyworth v. Wiechers, 269 Mich. 687.
When the case was before considered, emphasis was perhaps not placed upon the most vital principles involved. In what follows, the order of discussion of the questions considered is not the same as in the original opinion.
The plaintiff invokes the conscience of a court of equity. She seeks equity and must, therefore, do equity. The writings involved are in part set up as marginal notes to the former opinion and need not be repeated.
The contract of November 27, 1929, recited the making of the original contract between plaintiff and the Chemical State Savings Bank, of Midland, and its terms of payment; that February 6, 1929, *Page 360 plaintiff had been granted an extension of time for one year, or until November 29, 1929, in which to make payments in consideration of the payment by plaintiff of three years' back taxes prior to March 1, 1929. The payment of the taxes is recited as having been made by plaintiff. There was to grow due upon the contract November 29, 1929, $2,000 in principal, together with the taxes for the year 1929. It recited the Wilford and Carey contract whereby plaintiff agreed to set over to them, in consideration of the payment by them of $2,000 to her, a one-half interest in all oil and gas produced on the premises. It recited that plaintiff could buy back from Wilford and Carey for $4,000 the rights agreed by contract with them to be conveyed to them; that plaintiff was desirous of obtaining sufficient financial assistance with which to pay the $2,000 due upon the principal sum of the contract, together with interest thereon and the taxes of 1929; and that defendant Wiechers was desirous of advancing the necessary financial assistance. It was agreed between the parties by such contract, after setting up these recitals, that in consideration of the financial assistance to be rendered to plaintiff by defendant Wiechers, plaintiff would execute a warranty deed conveying an undivided one-half interest in the property, both surface and minerals, together with the undivided one-half interest in all the oil and gas leases upon such property, with the understanding that upon the failure to complete each and every act plaintiff was to be released from the obligations under the contract and enabled to keep the money to be paid by defendant Wiechers thereunder. Plaintiff agreed to pay one-half of the current taxes upon the premises and one-half of all future taxes if the royalty or rental to be received by her was sufficient to enable her to do so. If the royalty or rental from the premises to be received was not sufficient to enable *Page 361 her to pay one-half the taxes, defendant Wiechers was to pay all of the taxes and, if he received from such royalty or rental more than sufficient to pay the taxes, the surplus was to be split between the parties to the contract on an even basis, but plaintiff's one-half of such royalty or rental was to be paid to defendant Wiechers until the balance of $229.50 was paid. The contract further provided:
"Second party further agrees to pay the balance now due under the above described land contract with the Chemical State Savings Bank of Midland, Michigan, together with interest thereon to date of payment as is provided in said contract and also agrees to pay one-half of the taxes assessed against said property from this date forward."
There was a provision in the contract that all revenues earned by the property by reason of the use thereof for grazing, sale of wood, or farming or agricultural use, should go to the first party for the period of three years, and thereafter to be divided equally. In consideration thereof, defendant Wiechers agreed to pay the $2,000 in principal payment then due, to pay $462 in interest upon the amount to grow due upon the contract, and taxes for the year 1929 in the amount of $459; and $2,462 was then paid by defendant Wiechers, who also agreed to pay the $4,000 to Wilford and Carey for a release of their rights in the premises.
1. The principal dispute arises over the contract of November 24, 1930. There is no question that the contract of November 24, 1930, left the contract of November 29, 1927 (November 27, 1929), in full force and effect except as modified by the contract of November 24, 1930. The contract of November 24, 1930, so provided.
What were these modifications in the contract of November 27, 1929, made by the contract of November *Page 362 24, 1930? Plaintiff was to convey to defendant Wiechers an undivided one-half interest in all oil and gas and/or revenues therefrom, but not of the surface rights on the premises except such as were necessary for the exploration of the property. The rights which defendant Wiechers had acquired by the contract of November 27, 1929, to the wood from the premises and in the agricultural and grazing rights were released by him and were thereafter to be held by plaintiff. Through negotiations with Wilford and Carey, the amount of $4,000, which they claimed, was reduced by them to $2,000, which amount was to be paid by defendant Wiechers. The contract provided for a forfeiture of Wiechers' rights unless he should within 90 days after receiving notice of such forfeiture make the payments due upon the contract. The contract further provided that in consideration of the payments made at the time of the execution and delivery of this supplemental agreement, no forfeiture could be declared for a period of 12 months after November 24, 1930.
Yet, it is gravely claimed by plaintiff that this arrangement amounted only to an option. The contract of November 27, 1929, gave to defendant Wiechers an interest in the land. The contract of November 24, 1930, left the former contract in full force and effect. It constituted something more than an option. Notice of forfeiture is not necessary to terminate an option, and there is no necessity in an option that there be a provision that no forfeiture may be declared for a period stipulated therein. The only object and purpose of a forfeiture is to terminate property rights. The contract itself, as well as the conduct of the parties, indicate that at the time the contract was made it was not considered as a mere option. In plaintiff's affidavit, filed March 8, 1933, she swears it was Wiechers' duty, *Page 363 or the duty of the Moraine Land Company, if his assignee, to pay the money directed to be paid by them in fulfillment of plaintiff's contract with the Chemical State Savings Bank, of Midland.
2. Plaintiff, a shrewd and intelligent speculator, obtained the equity in this property in settlement of divorce proceedings instituted against her former husband. After such divorce proceedings, a new contract was made between the bank and plaintiff. The only way she could acquire title to the premises was to carry out and perform the contract with the Chemical State Savings Bank, of Midland. The burden was upon her of making the payments upon such contract to the bank. To obtain the money to make such payments was her object and purpose in all of her negotiations and borrowings. The question uppermost in her mind at all times was to procure the money to make the necessary payments to save the property and save herself the one-half interest in the oil, gas and mineral rights therein, and whatever else she was able to salvage without her ever investing a dollar of capital which originated with or was earned by her. Up until the property was fully paid for and her rights secured so they could not be forfeited, she had no other object or purpose, and but for the greed engendered by conflicting oil interests there would probably now be no suit in this court.
Stripped of all surplus verbiage, this is a bill in equity filed by plaintiff against defendants to recover the title and possession of the land in question after the vendors in the original contract have been fully paid and satisfied, and defendants have fully carried out and performed the several contracts with plaintiff, whereby plaintiff seeks the benefit of the payments made by defendants for the land as well as the land itself. Such action on the part of *Page 364 the plaintiff cannot appeal to any court which professes to administer the principles of equity jurisprudence.
It seems clear to me that under the circumstances, notwithstanding the language of the contracts involved, time was not so far of the essence of this contract as, after full performance by the defendants, accepted by the vendor, to deprive defendants of what they paid for the land which was deeded by the vendor for their use and benefit.
It is well settled that time is not of the essence of a contract unless the parties have either expressly stipulated, or the nature of the contract requires it. 13. Halsbury's Laws of England, p. 154.
Where, from the contract or from the nature of the case, time is not shown to be of the essence of the contract, courts of equity have been long in the habit of relieving against a mere lapse of time where it has been consistent with the substance of justice to do so. Roberts v. Berry, 3 DeG. M. G. 284 (43 Eng. Rep. 112); Hunter v. Seton, 7 Ves. 264 (32 Eng. Rep. 108);Parkin v. Thorold, 16 Beav. 59 (22 L. J. Ch. 170, 61 Eng. Rep. 239); Levy v. Lindo, 3 Mer. 81 (36 Eng. Rep. 32); Lennon v. Napper, 2 Sch. Lef. (Irish Ch.) 682.
The date for completion specified in the contract does not affect the equitable relation of vendor and purchaser. Before this date, the purchaser is already the equitable owner subject to completion. 13 Halsbury's Laws of England, p. 100.
In Bomier v. Caldwell, 8 Mich. 463, decided March 6, 1841, the court, by Chief Justice FLETCHER, after reviewing the English and American authorities, said:
"The general principle seems to be well established, that where the parties to the agreement have *Page 365 not expressly stipulated that performance at a particular time shall be an essential part of the agreement, and where, from the nature and circumstances of the contract and situation of the parties, there would be no particular hardship upon the party against whom the execution of the contract is sought to be enforced, and the conduct of the party in default not being unfair, or his claim unconscientious, a court of equity, so far as non-performance at the time is concerned, will aid the party in default, and decree a specific execution of the agreement as the only adequate measure of equitable justice between the parties."
Mere failure of the vendee to pay at the time agreed upon does not ipso facto forfeit his equitable rights. Morris v.Hoyt, 11 Mich. 9.
As a rule, time is not of the essence of these contracts, and where it is not so in fact, a declaration in the contract that it shall be will not make it so. Morris v. Hoyt, supra.
"Time cannot be made essential in a contract, merely by so declaring, if it would be unconscionable to allow it. Parties may stipulate to make it so, where the stipulation is reasonable; but, as in stipulated damages, if the stipulation is not reasonable, courts will not regard it."Richmond v. Robinson, 12 Mich. 193, 202, per Justices CAMPBELL, MARTIN and CHRISTIANCY.
"By the terms of the contract, it was expressly understood and declared that time is and shall be deemed and taken as of the very essence of the contract. Time is always of the essence of a contract when an act is required to be done within a specified time; as much so as the act itself, and no more. Every part of a contract is of its essence. It is not very clear what courts and text-writers who use this phrase mean, unless it be that a subsequent performance *Page 366 cannot be decreed, under all the circumstances of the case, by a court of equity, by way of relieving against the forfeiture of the contract, without doing injustice to the party against whom the relief is asked. This is the principle equity acts on in relieving against forfeitures. Nor will it, by any stipulation of the parties, be ousted of its jurisdiction, or refuse to relieve against the exaction of the pound of flesh, although the parties have, in express terms, stipulated for it." Richmond v. Robinson, supra, 199, per MANNING, J.
Lapse of time alone does not put an end to a vendee's rights, for time is not of the essence of the undertaking to pay money by such a contract. Converse v. Blumrich, 14 Mich. 108 (90 Am.Dec. 230).
"It has been held that where parties to an agreement have not expressly stipulated that performance at a particular time shall be an essential part of the agreement, and where from the nature and circumstances of the contract and the situation of the parties there would be no particular hardship upon the party against whom the execution of the contract is sought to be enforced, a court of equity, so far as performance at the time is concerned, will aid the party in default."Munro v. Edwards, 86 Mich. 91.
It is said that time is of the essence of contracts and leases in relation to oil and gas. Whether time is of the essence of a contract in a particular case depends upon the circumstances. And the undisputed record in this case shows that time was never treated as of the essence of the contract either with the Chemical State Savings Bank or between the plaintiff and the defendants herein.
3. The most important question is whether a court of equity, whose jurisdiction and power plaintiff has invoked, will lend itself to enforce a penalty or forfeiture *Page 367 which will permit plaintiff to regain the land which she sold to defendants and which the defendants bought and paid for in full.
Perhaps, the two leading authorities in England on relief from penalties and forfeitures are Peachy v. Duke of Somerset, 1 Strange, 447 (93 Eng. Rep. 626), and Sloman v. Walter, 1 Bro. C. C. 418 (28 Eng. Rep. 1213), the holdings in which cases come to this — whether compensation will furnish effective relief. Smith, Principles of Equity (5th Ed.), pp. 252, 253.
Stated in the language of Snell, Principles of Equity (19th Ed.), p. 357:
"The court will only relieve against a forfeiture where the court could give compensation."
These rules have been modified by the text-writers in this country.
"Whenever a penalty or forfeiture is inserted in a contract merely to secure the performance of some act or the enjoyment of some right or benefit, the performance of such act or the enjoyment of such right or benefit is the substantial and principal intent of the instrument, and the penalty or forfeiture is only accessory, and therefore intended only to secure the damage actually incurred; and hence equity will relieve against the penalty or forfeiture, and decree compensation, whenever such compensation can effectually be made." Fetter, Equity (1st Ed.), p. 107.
"Forfeitures are not regarded with favor, and a jurisdiction similar to that in the case of penalties is exercised by equity to relieve against the consequences of forfeitures incurred at law, the rule being that such relief will be given where compensation can be fully made, on the tender or payment of such compensation, notwithstanding relief may be had at law." 21 C. J. pp. 100, 101. *Page 368
"Ordinarily, where the default is merely in the payment of money it may be compensated and relief will be granted." 21 C. J. p. 101.
"The exercise of the jurisdiction to relieve against forfeitures demands in most cases the application of the equitable doctrine that time is not essential, and that a failure to perform within the appointed time may be relieved against where compensation can be made for the delay." 21 C. J. pp. 102, 103.
"Relief against forfeitures is an independent ground of equity jurisdiction not dependent upon other equitable circumstances such as fraud, accident, or mistake." 21 C. J. p. 103.
"The general principle now adopted is, that wherever a penalty is inserted merely to secure the performance or enjoyment of a collateral object, the latter is considered as the principal intent of the instrument, and the penalty is deemed only as accessory, and therefore as intended only to secure the due performance thereof or the damage really incurred by the nonperformance. In every such case the true test (generally if not universally) by which to ascertain whether relief can or cannot be had in equity is to consider whether compensation can be made or not. If it cannot be made, then courts of equity will not interfere. If it can be made, then if the penalty is to secure the mere payment of money, courts of equity will relieve the party upon paying the principal and interest." 3 Story's Equity Jurisprudence (14th Ed.), p. 342.
"It is a universal rule in equity never to enforce either a penalty or a forfeiture. Therefore courts of equity will never aid in the devesting of an estate for a breach of a covenant on a condition subsequent, although they will often interfere to prevent the devesting of an estate for a breach of a covenant or condition." 3 Story's Equity Jurisprudence (14th Ed.), p. 349. *Page 369
"There are, as intimated above, special circumstances which will entitle a defaulting party to relief against a forfeiture in cases where otherwise it would not be granted. Although the agreement is not one measurable by a pecuniary compensation, still, if the party bound by it has been prevented from an exact fulfillment, so that a forfeiture is incurred, by unavoidable accident, by fraud, by surprise, or by ignorance, not wilful, a court of equity will interpose and relieve him from the forfeiture so caused, upon his making compensation, if necessary, or doing everything else within his power." 1 Pomeroy's Equity Jurisprudence (4th Ed.), p. 857.
"Where the terms of an agreement have not been strictly complied with, or are incapable of being strictly complied with, still, if there has not been gross negligence in the party, and it is conscientious that the agreement should be performed, and if compensation may be made for any injury occasioned by the non-compliance with the strict terms, in all such cases courts of equity will interfere, and decree a specific performance. For the doctrine of courts of equity is not forfeiture, but compensation, and nothing but such a decree will in such cases do entire justice between the parties." 2 Story's Equity Jurisprudence, p. 83.
"One of the most frequent occasions on which courts of equity are asked to decree specific performance of contracts is where the terms of the contract have not, in point of time, been strictly complied with. Time is not generally deemed in equity to be of the essence of the contract, unless the parties have expressly so treated it, or it necessarily follows from the nature and circumstances of the contract." 2 Story's Equity Jurisprudence, p. 85.
The last above quotations from Story's Equity Jurisprudence are quoted from the opinion of the court in Bomier v. Caldwell,supra. *Page 370
" 'Courts of equity will never aid in the devesting of an estate for a breach of a covenant on a condition subsequent, although they will often interfere to prevent the devesting of an estate for a breach of a covenant or condition.' 2 Story's Equity Jurisprudence (13th Ed.), § 1319," quoted with approval in Hodges v. Buell, 134 Mich. 162.
"It is well settled that where the agreement secured is simply one for the payment of money, a forfeiture either of land, chattels, securities, or money, incurred by its nonperformance, will be set aside on behalf of the defaulting party, or relieved against in any other manner made necessary by the circumstances of the case, on payment of the debt, interest, and costs, if any have accrued, unless by his inequitable conduct he has debarred himself from the remedial right, or unless the remedy is prohibited, under the special circumstances of the case, by some other controlling doctrine of equity." 1 Pomeroy's Equity Jurisprudence (4th Ed.), § 450.
These principles have, from the earliest times, received the approval of this court.
"In the former case between the same parties, we held that a court of equity would not lend its aid to divest an estate for the breach of a condition subsequent, although that aid would be sometimes extended to relieve against such a condition. Wecannot, therefore, decree a forfeiture in the present case; and we certainly would not, did we possess the power." MichiganState Bank v. Hammond, 1 Doug. (Mich.) 527, 540.
"Equity will not lend itself to enforce a penalty or forfeiture." Crane v. Dwyer, 9 Mich. 350 (80 Am. Dec. 87).
Equity will not interfere to enforce a forfeiture, but, where such relief is sought, will leave the party *Page 371 complaining to such relief as he can obtain elsewhere.White v. Railway Co., 13 Mich. 356.
"Relief against forfeitures is a very ancient head of equity, and it is founded upon the broad and benign principle, that the possessor of a legal right shall not be allowed to use it to work oppression or injustice." Sandford v. Flint, 24 Mich. 26,30.
"A court of equity has no jurisdiction to enforce forfeitures. If a party desires such relief he must seek it at law, or by entry for the breach of condition."Fitzhugh v. Maxwell, 34 Mich. 138, 139.
"It has been held in this State that time is not generally so far of the essence of a contract that a failure to perform within a period specified will necessarily preclude a party from being allowed to perform subsequently. * * * When a vendee has failed to perform his obligations, relief is not a matter of right. * * * The ground on which equity relieves against forfeitures is that it would operate oppressively or fraudulently to refuse." Gram v. Wasey, 45 Mich. 223, 228.
"A forfeiture is not favored either at law or in equity, and a provision for it in a contract will be strictly construed, and courts will find a waiver upon slight evidence."Lyon v. Travelers' Ins. Co., 55 Mich. 141, 146 (54 Am. Rep. 354).
"The complainant is not entitled to enforce a forfeiture of the estate in equity, for equity does not aid in enforcing forfeitures." Watrous v. Allen, 57 Mich. 362, 367 (58 Am. Rep. 363).
"We have repeatedly held that equity will not render aid in enforcing forfeitures, but will interpose to relieve from them." Hodges v. Buell, 134 Mich. 162, 170.
"Equity will not aid to enforce forfeitures."Wallace v. Kelly, 148 Mich. 336 (118 Am. St. Rep. 580). *Page 372
It is the province of the court to relieve against forfeitures. John v. McNeal, 167 Mich. 148.
"Equity will sometimes relieve against forfeiture. It will do so, ordinarily, when it is incurred by the mere nonperformance of a pecuniary obligation at the day, when time is not of the essence of the contract, either made so by the nature of the subject-matter or by the express terms of the agreement, when performance by the defaulting party can be secured and when his general conduct has not been such as to render it unjust that he should be relieved." Lozon v. McKay, 203 Mich. 364.
"Equity will sometimes relieve against forfeiture."Hubbell v. Ohler, 213 Mich. 664.
Plaintiff was relieved from a forfeiture of his rights in that case by the court.
"Equity dislikes forfeitures and not only will not aid in enforcing them, but will restrict their effect as far as possible." Hull v. Hostettler, 224 Mich. 365, 369.
"The law does not favor forfeitures, and he who plants himself upon a forfeiture must look well to where he stands."Zadigian v. Gard, 223 Mich. 147, 152.
"The law does not favor forfeitures, and even though the alleged breaches upon which defendant sanitarium bases its claim to avoid this lease actually are technical violations of the strict terms of the lease, they are not such violations as would justify a court of equity in declaring what will amount to a forfeiture of plaintiff's rights." Aniba v. BurlesonSanitarium, 229 Mich. 118, 122.
"Forfeitures are in their nature penalties, or pecuniary punishment, not favored either in law or in equity."Bonham v. Northwestern National Ins. Co., 230 Mich. 349, 353. *Page 373
"A forfeiture is not favored either at law or in equity and a provision for it in a contract will be strictly construed and courts will find a waiver upon slight evidence, when the equity of the claim made * * * is, under the contract, in favor of the insured." Smith v. Independent Order of Foresters, 245 Mich. 128.
Defendants have paid in full the purchase price of the premises to the vendor. The vendor accepted the purchase price and interest thereon up to the date of payment. It confessed and acknowledged the receipt of the payment by executing and delivering a deed of the premises. Plaintiff cannot invoke the aid of a court of equity to keep the property bought and paid for by defendants and deeded by the vendor as requested by them. The facts clearly indicate that to grant plaintiff the relief prayed not only would not do equity, but would perpetrate inequity. Plaintiff's bill, on this ground alone, should be dismissed, and the decree of the trial court affirmed.
4. The underlying contract by which the owner of the legal title to the premises, the Chemical State Savings Bank, of Midland, Michigan, agreed to sell and convey the premises to plaintiff, provided that upon the fulfillment of the contract of purchase by the vendee, "part ... of the first part will well and faithfully execute and deliver a good and sufficient deed or deeds of, and thereby convey to the said party of the second part, her heirs and assigns, a good and unincumbered title in fee simple to the above-described premises with their appurtenances."
When the time came for the payment of the balance of the purchase price by the Moraine Land Company, the Chemical State Savings Bank, the vendor, was not in a position to convey an unincumbered *Page 374 title in fee to the premises. The title was incumbered by an outstanding lease. That an outstanding lease of real estate constitutes an incumbrance thereon does not admit of argument. This covenant in the contract upon the part of the vendor constituted a condition precedent to the payment in full of the balance of the purchase price by the vendee and by the Moraine Land Company. Elson v. Jones, 42 Idaho, 349 (245 P. 95);Northwestern National Life Ins. Co. v. Ward, 56 Okla. 188 (155 P. 524); Sunshine Cloak Suit Co. v. Roquette Bros., 30 N.D. 143 (152 N.W. 359, L.R.A. 1916 E, 932); Adams v. RailwayCo., 64 W. Va. 181 (61 S.E. 341); 6 R. C. L. p. 904; 13 C. J. pp. 564-570.
This is the rule recognized in Michigan.
"Equity could not allow the rights of a purchaser, under such a contract, to be forfeited by the vendor, when the latter had no title to convey, and was not in position to perform his own undertaking." Converse v. Blumrich, supra.
"When they complain of a default, it is upon the assumption that they have themselves performed, and a showing to the contrary is fatal to their case." Williams v. Hodges, 41 Mich. 695,698.
"He could not forfeit the contract for nonpayment, and oust the defendant of possession, when he himself was not in a condition to perform on his own part." Getty v. Peters,82 Mich. 661, 668 (10 L.R.A. 465).
"Defendant covenanted that the land was free from all incumbrances, and to give a warranty deed. The land was subject to a mortgage, which was not discharged until June 14, 1904. Defendant was not in position to demand payment or to forfeit the contract until he was in a position to perform himself."Bartlett v. Smith, 146 Mich. 188 (117 Am. St. Rep. 625). *Page 375
"A vendor in default, who is not in condition to perform on his part, cannot forfeit the contract for nonpayment by the vendee." Wexler v. Poe, 245 Mich. 442, 447.
The rule that a vendor is not entitled to forfeit a land contract when he himself is in no position to perform by making conveyance in accordance with the contract was adopted for the protection of the vendee. Langley v. Kirker, 247 Mich. 443.
"To entitle the vendor to avoid the contract he himself must not be in default. So, too, he is not entitled to rescind or forfeit the contract for a default of the purchaser unless he is able to perform in accordance with the terms of the contract. However, where land is to be conveyed on payment of the last installment of the purchase money, the fact that there is a defect in the vendor's title has been held not to prevent the vendor from forfeiting the contract for default in payment of installments before the last, provided the vendor is not insolvent, but he is prevented from forfeiting or rescinding the contract because of a default in payment of the last installment where he is unable to perform his part of the contract." 66 C. J. p. 758.
The covenant in the contract upon the part of the vendor to convey, upon payment in full of the purchase price, an unincumbered title to the premises in question constituted a condition precedent to the payment in full of the balance of the purchase price. The performance of the conditions of the contract by the vendee, and by the Moraine Land Company, by the payment upon the purchase price was dependent upon the precedent performance and discharge by the vendor of the covenant against incumbrances. The vendor defaulted in this precedent covenant, and it was not necessary for the vendee, or those claiming under her, to pay the balance of the purchase *Page 376 price until the vendor was in a position to perform. Nor will it do to say that the outstanding lease was unimportant or was invalid. It was an existing, outstanding lease of a part of the premises, and, whether valid or not, constituted a cloud upon and an incumbrance against the title, which it was the duty of the vendor to cancel and discharge. It does appear there was an outstanding lease, and it does not clearly appear whether that lease was valid or not.
"The following doctrine seems to be sustained by the great majority of the American decisions: Where the instrument or proceeding constituting the alleged cloud is absolutely void on its face, so that no extrinsic evidence is necessary to show its invalidity, and where the instrument or proceeding is not thus void on its face, but the party claiming under it, in order to enforce it, must necessarily offer evidence which willinevitably show its invalidity and destroy its efficacy, — in each of these cases the court will not exercise its jurisdiction either to restrain or to remove a cloud, for the assumed reason that there is no cloud. While this doctrine may be settled by the weight of authority, I must express the opinion that it often operates to produce a denial of justice. It leads to the strange scene, almost daily in the courts, of defendants urging that the instruments under which they claimare void, and therefore that they ought to be permitted tostand unmolested, and of judges deciding that the court cannot interfere, because the deed or other instrument is void, while from a business point of view every intelligent person knows that the instrument is a serious injury to the plaintiff's title, greatly depreciating its market value, and the judge himself who repeats the rule would neither buy the property while thus affected nor loan a dollar upon its security. This doctrine is, in truth, based upon mere verbal logic, rather than upon considerations of *Page 377 justice and expediency." 4 Pomeroy's Equity Jurisprudence (3d Ed.), pp. 2755-2758.
The defendant Moraine Land Company carried out and performed the contract and paid the entire balance due upon the contract, except that paid by defendant Wiechers who assigned his interest to the Moraine Land Company, and paid to the defendant Chemical State Savings Bank, of Midland, Michigan, the entire balance due upon the contract in fulfillment of the terms of the contract made between Wiechers and the Moraine Land Company.
After the balance of the purchase price upon the original contract between the Chemical State Savings Bank and plaintiff was fully paid up, except the last payment, the plaintiff was in no position to cause an unincumbered title to be conveyed to defendant Wiechers or the Moraine Land Company, nor was defendant Chemical State Savings Bank in such position. And, not being in a position to tender an unincumbered title of the premises, neither party was in a position to enforce a forfeiture of the rights of the Moraine Land Company or of defendant Wiechers.
The vendor was under obligation to discharge or cancel the outstanding lease as a condition precedent to the payment of the full amount of the purchase price. It had failed to do so within the time fixed by the contract for payment of this balance. It had defaulted in the performance of the condition precedent. It had failed to live up to the covenants contained in the original contract to sell the premises to the plaintiff, and it would not have been necessary, had defendants sought to enforce specific performance, to allege a tender of performance or even an ability to perform. 5 Page, Contracts (2d Ed.), § 2960, p. 5228; 13 C. J. p. 726, § 849. *Page 378
"Where anything is to be done by plaintiff precedent to performance by defendant, plaintiff must, as a rule, allege performance by himself in declaring for a breach of defendant's promise. But where it is alleged that nonperformance of a condition precedent was caused by the act of defendant, plaintiff is not bound to aver performance or readiness to perform on his part; he may simply allege the facts constituting his excuse." 13 C. J. p. 726, § 849.
Plaintiff was not in a position, at the time she gave notice of forfeiture, to perform upon her part, nor was the Chemical State Savings Bank in a position to perform at the time such notice of forfeiture was given; and the notice of forfeiture was, therefore, inoperative, invalid, and of no effect so far as the right of the defendant Moraine Land Company is concerned. For this reason alone, plaintiff was not entitled to decree.
5. There is no question but that performance within the time specified in a contract may be waived by oral or written agreement. Kimball v. Goodburn, 32 Mich. 10; Hickman v. Chaney,155 Mich. 217; Bugajski v. Siwka, 200 Mich. 415;Waller v. Lieberman, 214 Mich. 428; Sliwinski v. Gootstein,234 Mich. 74.
In Waller v. Lieberman, supra, the court quoted with approval the rule stated in 39 Cyc., p. 1384, as follows:
" 'Where strict compliance with contract has been waived. Whether time is or is not of the essence of the contract, if the vendor has waived strict compliance with its terms as regards time of payment, he cannot thereafter rescind or forfeit the contract, without notifying the purchaser of his intention to do so unless payment is made, and allowing him a reasonable time for performance, and it has been held immaterial whether the extension of time was *Page 379 upon a valuable consideration or not. After forfeiture for a default has been waived, time becomes essential thereafter only where the vendor makes it so by proper notice and demand. The decisions proceed upon the theory that the vendor "cannot use his own indulgence as a trap in which to catch the purchaser!" ' "
This rule was again quoted with approval inSliwinski v. Gootstein, supra, where the trial court held that where payments upon a land contract had not been regularly made, but plaintiffs had accepted them and the vendors, by accepting payments in this manner, waived the provision of the contract having to do with making time the essence of performance in the contract, plaintiffs, under the authorities, were precluded from forfeiting the land contract until they properly notified the defendants of their intention to do so and to make a proper demand for the overdue payment. In that case, the court cited with approval Corning v. Loomis,111 Mich. 23; Waller v. Lieberman, supra; Fry v. Miller, 220 Mich. 463; Letinsky v. Smith, 220 Mich. 465; Zadigian v. Gard,223 Mich. 147; Malys v. W. C. Hood Realty Corp., 229 Mich. 110 . It quoted with approval the language of Treat v. RailwayCo., 157 Mich. 320 (133 Am. St. Rep. 347), where it is said:
"We are of opinion that, before a forfeiture could be declared by plaintiff, he was bound to give notice of his intention to claim a forfeiture, coupled with a notice to defendant of the particular default of defendant relied upon by him. After such notice the defendant should have reasonable time in which to comply, and thus avoid forfeiture."
In this case, it is said:
"If a vendor accepts a payment on the purchase price after it is due, he thereby waives his then *Page 380 existing right to declare a forfeiture because of the failure to make the payment on time. If such vendor should, after accepting the payment, declare a forfeiture because of the failure to make such payment on time and should institute an action of ejectment, the purchaser might use such waiver in his defense. Surely the purchaser to have benefit of such waiver need not file a bill in equity to be relieved of the forfeiture and to restrain such action at law.
"If a vendor repeatedly accepts payments after due from the purchaser, habitually indulges him in delinquency, he thereby waives, as to future payments, strict compliance with the terms of the contract as regards time of payment, and he must give the said preliminary notice or demand before he can declare a forfeiture, and if forfeiture be declared without the preliminary notice, and ejectment instituted, the waiver may be used in defense of the action."
The court, also, in that case quoted with approval from a note contained in 9 A.L.R. 996, 1002, and since the decision of that case, this court has not departed from the rule therein laid down. For this reason, plaintiff was not entitled to decree.
6. The opinion heretofore filed held the arrangement existing between the parties was something more than an option. The reasons for so holding appear from Keyworth v. Wiechers,269 Mich. 687, 693-695, and a consideration of the terms of the contract itself, and are stated above. Under these instruments in writing, defendants acquired an interest in lands to the extent one must consider the vendor as holding the title in trust for the beneficial owners, the plaintiff and the defendants. The contracts were so treated by plaintiff. If defendants had no interest under the contracts, notice of forfeiture *Page 381 would not have been provided for to terminate such interest.
But, suppose defendants had only an option. That would not, under the facts, benefit plaintiff. She is here asking the court to give her the land and, at the same time, permit her to reap the benefit of the payments made by defendants; to hold defendants in default in not paying in full for an unincumbered title when neither she nor the vendor were in a position to perform, when they and each of them were in default. Equity does not concern itself with weighing the comparative merits of defaults of parties to suits nor interest itself in the comparative importance of failures to perform contracts. If defendants had an option, they exercised it. The vendor accepted their money and deeded the property as requested by them. This was, if an option at all, not a gratuitous option but one based upon a valuable consideration — an option exercised, from which a resulting contract arose, which was carried out and performed by defendants, the money paid, and deed executed by the vendor.
The law has always recognized the difference between gratuitous options and options based upon a valuable consideration, as well as the difference in their treatment and effect. Gustin v. Union School-District of Bay City, 94 Mich. 502 (34 Am. St. Rep. 361); Mier v. Hadden, 148 Mich. 488 (118 Am. St. Rep. 586, 12 Ann. Cas. 88).
7. In the opinion heretofore filed, it was held plaintiff stood in the position of a surety on the contract and the bank ceased to have a lien upon the land for the payment of the balance due after extending the time of payment on the contract to the assignees of the vendee therein. Reliance was placed upon Smith v. Sheldon, 35 Mich. 42 (24 Am. Rep. 529), and Metz v. Todd, 36 Mich. 473. *Page 382
"As between the assignor and the assignee, the latter becomes the principal debtor and the former a surety." Barnard v. Huff,252 Mich. 258, 264 (77 A.L.R. 259).
"As between the assignor and the assignee, the latter becomes the principal debtor and the former a surety." Krueger v.Campbell, 264 Mich. 449, 451.
It is a general rule that a valid agreement between a creditor and the principal debtor extending the time of payment of indebtedness without the consent of a surety discharges the latter. This has always been the rule in this State (Metz v. Todd, supra; Michigan State Ins. Co. v. Soule,51 Mich. 312; Dedrick v. Den Bleyker, 85 Mich. 475), and in Gorman v. Butzet, 272 Mich. 525, 531, it was said:
"The assignee becomes primarily liable for the purchase price and the vendee is his surety. * * * It is familiar law that the obligee and principal cannot materially change the contract of suretyship without releasing the surety."
Bigelow v. MacCrone, 267 Mich. 217, in an action at law to recover the amount due on a land contract, the defense was based upon novation. It was held there was no privity of contract between the plaintiff and the assignee of the vendee, and no novation.
In Cheff v. Haan, 269 Mich. 593, it was held an extension of time of payment granted by the vendor to the assignee of the vendee did not discharge the debt. The question whether such extension of time of payment would discharge one in the position of a surety was not raised.
Where an extension of time of payment upon a land contract has been granted by the vendor to the assignee of the vendee, these cases hold the vendor may not declare the contract forfeited for failure *Page 383 to pay within the extended time. Such an agreement amounts as between the parties thereto, if based upon a valid consideration, to a modification of the contract.
"An agreement by the vendor and a subpurchaser for an extension of time does not affect the vendor's right to the lien." 66 C. J. p. 1273.
My brethren think such extension of time of payment by the vendor to the subpurchasers under the vendee did not discharge the vendee from liability, but only suspended, during the extended time, the right of the vendor to declare the vendee and the subpurchasers under the vendee in default.
Wiechers was a subpurchaser. The contract of November 27, 1929, provided:
"Said second party further agrees to pay the balance now due under the above described land contract with the Chemical State Savings Bank of Midland, Michigan, together with interest thereon to date of payment as is provided in said contract."
The Chemical State Savings Bank extended to defendant Moraine Land Company the time of payment of part of the balance due upon the original land contract. This was an agreement between the bank and the Moraine Land Company. It was evidenced by the receipt of November 25, 1931. The contract of Wiechers was not to pay to plaintiff the amounts mentioned in the contract. It was a contract upon his part to pay to the Chemical State Savings Bank, of Midland, Michigan. The bank accepted part payment, extended the time of payment of the balance, and the balance has been paid.
The language used in the original opinion may have been too broad. Plaintiff is in no position to take advantage of the failure of defendant Wiechers *Page 384 and those claiming under him to pay the Chemical State Savings Bank in accordance with the contract of November 27, 1929, as subsequently modified. The bank, during this extended time, was not in a position to claim plaintiff was in default upon her contract, not in a position to enforce payment against defendant Wiechers or defendant Moraine Land Company, but was bound by the agreement to extend the time evidenced by the receipt of November 25, 1931, and could not proceed contrary thereto. It did not so proceed, but recognized and carried out the contract. Plaintiff is not, therefore, entitled to decree.
8. Reliance is placed upon Pendill v. Union Mining Co.,64 Mich. 172; Negaunee Iron Co. v. Iron Cliffs Co., 134 Mich. 264;Miller v. Steele, 146 Mich. 123; Lozon v. McKay,supra; Village of Grandville v. Railway Co., 225 Mich. 587 (34 A.L.R. 1408), to show that equity will enforce a forfeiture herein. The law is well settled against the contention made, by the authorities relied upon which are inapplicable to the facts involved.
Pendill v. Union Mining Co., supra, involved a mining lease, the removal of ore from the land, and consequent corresponding diminution of the value of the premises leased. The lease was for 19 years and 8 months and provided for the payment of a royalty or rental of 50 cents a long ton for the ore removed, and a minimum rental of $2,000 a year. The royalty was payable monthly. The lease provided if the lessee should fail to pay the royalty for 10 days, the lessor might re-enter without notice. The title was not purchased. If the lessee failed to pay, he forfeited his right to make prospective profits. The lease was made in 1880. Nothing was paid as rent or royalty from May 1, 1883, to March, 1885. The bill was filed to remove cloud from title. *Page 385
The lease was upon the express condition that if the lessee defaulted for a period of 10 days, lessor might re-enter without notice and after such re-entry the lease should cease and be void. As said by the court:
"The bill treats the lease as a void incumbrance, under which the defendant company, by its claims thereunder, clouds the complainant's title. The court is not asked to declare the forfeiture, but to ascertain whether or not a completed forfeiture exists, and, if so, to remove the cloud. The bill does not ask the court to do the thing, but to ascertain whether it has been done, and, if so, to declare its effect upon the title to complainants' property."
Upon the question of relieving against a forfeiture, the court said:
"Equity has jurisdiction in such cases, but the defendant company is not before us asking any such relief, and the subject cannot be further discussed."
In Negaunee Iron Co. v. Iron Cliffs Co., supra, a bill was filed to remove cloud from title. It alleged plaintiff's exclusive possession for more than 15 years and the abandonment by the lessee of the lease for nearly 40 years. The court said:
"We think, however, the main purpose of the bill is, not to declare a forfeiture of the lease, but to determine the rights of the parties, which depend largely upon the construction of the deeds, the leases, and the various acts and conduct of the parties, extending over a period of more than 40 years, and to enjoin a continuing trespass."
Those who claimed under the lessee were threatening to remove the ore from the premises. What the court really decided was this:
"That leases of this character may be abandoned and forfeited by nonuser is established in Porter v. *Page 386 Noyes, 47 Mich. 55, at least as to those who have purchased or leased from the lessor, entered upon the land, developed mines, and made valuable improvements. * * * Whatever may be the rule as between the lessor and the lessee where neither has taken any steps to exercise the right to mine, as between such lessee and subsequent lessees and grantees of the lessor, who have in good faith expended large sums in developing mines, the lessee is estopped to assert his personal and incorporeal right" to remove the ore. The court applied the rule to the lessees that they had stood by and seen large expenditures incurred and had no right to the aid of a court of conscience.
Miller v. Steele, 146 Mich. 123, involved a tax title to land. The owner of the tax title filed a bill to quiet title.
Complainant purchased from the auditor general. He had given the statutory notice and defendant had redeemed by payment to the register in chancery, and, under the statute, the tax title thereupon became void and of no effect against the land thus redeemed. Complainant claimed defendant could not enforce a forfeiture. The court held defendant had a right to redeem and that, under the circumstances, complainant had no title to forfeit.
Lozon v. McKay, supra, involved specific performance of a land contract. The court treated the bill as amended so as to ask for relief from the forfeiture, modified the decree below to relieve plaintiffs from the forfeiture upon condition that within 60 days after the entry of decree they pay to the defendant the unpaid purchase price with all arrearages thereon. This case really involves the exercise by this court of its power to relieve against forfeiture. *Page 387 Village of Grandville v. Railway Co., supra, involved a bill to enforce forfeiture of a franchise, for failure to pave within the tracks of the railroad company. Part of the paving between tracks had been done. A decree was entered modifying the decree below and requiring the holder of the franchise to pave between the rails of its tracks in accordance with the franchise on or before the first day of May, 1924, in default of which defendants were to forfeit their rights under the franchise. This case in itself involved equitable relief granted against forfeiture.
Decree should be affirmed, with costs.
NORTH, J., concurred with POTTER, C.J.