Bill for the specific performance of a contract for the sale of land. Robinson, being the owner of the real estate mentioned in the bill, on the 30th December, 1856, with his wife mortgaged the same to George R. Weeks, to secure the payment of three promissory notes, given by himself and wife to Weeks, on the 20th September, 1856, for $286.66 each, payable as follows: one on the 20th September, 1858, one on the 20th September, 1859, and one on the 20th September, 1860, with annual interest. On the 13th March, 1858, Robinson entered into articles of agreement with one Barlow, to sell and convey the mortgaged premises to Barlow, on Barlow’s paying Robinson $54.73 on the 1st September, 1858, and paying to Weeks the three promissory notes secured by the aforesaid mortgage, with interest from the date of the aforesaid articles of agreement. On the 6th September, 1858, Barlow assigned *199the contract to Richmond, who, on the 9th November following, paid, the first note due to Weeks, and on the 15th day of the same month paid to Robinson the $54.'73 going to him. On the 21st November, 1859, Richmond paid Weeks the further sum of $180. On the 12th April, 1860, Robinson served a written notice on Richmond of the forfeiture of the contract, and to quit the premises. Richmond afterwards, and in the same month, paid Robinson’s mortgage and notes to Weeks, and tendered them to Robinson, and demanded a deed.
Several questions were made on the argument which I will now proceed to consider.
Jñrst. That the bill is defective in not alleging payment of taxes, and the non - commission of waste; and that no decree can therefore be entered upon it. By the articles of agreement, the vendee was to have possession of the land, and was to pay all taxes and assessments, and not to commit or suffer waste or damage to the land. And on the performance by him of the covenants and agreements to be performed by him, the vendor was to convey. The bill does not allege the payment of taxes, or the non - commission of waste. This is the ground of the objection. No allegation of the non - commission of waste was necessary, as it required .no act to be done by the vendee, and the presumption of law in such cases is, that the party has not done the prohibited act. The payment of taxes stands on different ground, as it is an act to be done, and not one to be abstained from. It differs from the other acts to be done by the vendee, in that it s an undertaking to perform a public duty • for the vendor. The duty must, however, exist before the obligation arises. The land may not have been assessed, and the existence of a tax is therefore not to be presumed. It must be shown by way of defense; and payment need not be averred in the bill.
The next objection is, that by the terms of the con*200tract, 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 specr fled 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 can not 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 éxpress terms, stipulated for it.
The first payment was not made within the time required by the contract, and no forfeiture was declared or insisted upon. In November following the forfeiture in September, both Robinson and Weeks were paid, Robinson receiving the money for Weeks as well as that which was going to himself. On the 21st November, 1859, $180 more were paid on the second payment to be made to Weeks — making the whole amount paid complainant $649.98. In April following, the notice of forfeiture, and for complainant to quit the premises, was given by Robinson. Thereafter, and during the same month, Richmond paid the balance due on the notes and mortgage to Weeks, the last note not being due until the following September. The object of the notice to quit from Robinson is too obvious not to be seen. It was to make $649.98 out of complainant. He had suffered no loss whatever, and Weeks, to whom the money was going, made no complaint. And after the notes and mortgage had been paid, the payment of which appears to have been *201the object he had in view in selling the premises, he refused to convey. A stronger case could not well be presented for the interposition of a court of equity.
The third objection is, that Mrs. Robinson was not a party to the contract, and should not, therefore, be required to unite with her husband in the deed to complainant. This objection is well taken, and the bill must be dismissed as to her. But it is no answer to the refusal of Robinson to convey, when the notes and mortgage were offered to him and a deed demanded; for he did not place his refusal on the ground that his wife was required to unite with him in the conveyance. Had he done so, the execution of the deed by her might have been waived. His objection was, the forfeiture of the contract, and that complainant had no rights under it. Nor was Weeks a necessary party to the bill. The payment of the notes and mortgage by complainant discharged Robinson’s indebtedness to Weeks, and he had no interest in having the mortgage discharged of record; and if he had, Weeks would be bound to acknowledge payment of it on request. The decree should require' complainant to deliver up the notes and mortgage to Robinson, on receiving the deed from him.
The bill should be dismissed as to Mrs. Robinson, and the decree be so reformed as to Mr. Robinson as to require complaiuant to deliver the notes and mortgage to him, on receiving the deed from him. Neither party to have costs against the other.
Campbell J.:We think the contract in this case was designed (as appears from the circumstances and from its terms) to provide "• for the payment of the mortgage to Weeks. It could not in any way concern Robinson (whether the mortgage was paid in one way or another. It only concerned him to get it satisfied; and, inasmuch as that has *202been done, the contract has been substantially complied with. The objection that it does not appear the taxes have been paid, stands on the same footing with the one alleged, that the contract to pay the mortgage was not literally performed. When Richmond paid for the land, and became thus entitled to a conveyance, the non-payment of taxes could injure no one but himself; and Robinson could have no concern with it, as he could not be compelled to warrant against them, and does not aver or ¿iretend that he has been made personally liable for them. Such covenants may doubtless become material, hut mot in such a case as the present.
Time cannot he made essential in a contract, merely by iso declaring, if it would he 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.* For these reasons I concur in the results arrived at by my brother Manning. So far as Mrs. Robinson is concerned, no decree can be rendered against her, for the reasons he has stated, in which I agree with him.
Martin Ch. J. and Christianct J. concurred in this opinion.-See Jaquith v. Hudson, 5 Mich. 123 ; Davis v. Freeman, 10 Mich. 188; Daley v. Litchfield, 10 Mich. 29.