Louis P. Ohler, and Agnes A. Ohler,

Owners, By Clark H. Gleason,

Their Agent and Attorney (h) Decree.-(Caption). At a session of said court held at the court house in the City of Grand Rapids, in said county, on the 28th day of January, A. D. 1920.

Present: Hon. John S. McDonald, circuit judge.

This cause came on to be heard upon the bill of complaint filed therein, the answer and cross-bill of defendants, the answer of said plaintiffs to said cross-bill, and the proofs taken in open court, and the arguments of counsel for the respective parties from which the following facts satisfactorily appear, viz.:

1. Defendants Louis P. Ohler and Agnes A. Ohler were the owners in fee of land situate in the township of Wyoming, County of Kent, State of Michigan, known and described as follows: The east half (1/2) of the southwest quarter (i) of section fifteen (15) in township six (6) north, range twelve (12) west, except nine and one-half (91) acres in width from the west side thereof and except parcel conveyed in deed recorded in liber 399 of deeds, on page 578.

2. That said defendants sold the said land on land contract to one Boomsma and wife, June 29th, 1917, taking in part payment therefor certain encumbered real estate and leaving a balance of $3000.00 unpaid, the first payment on the principal being $100.00, due Aug. 1, 1919, and yearly thereafter, all unpaid to bear interest from August 1, 1917, payable semi-annually at six per cent. That by said contract said Boomsma and wife agreed to pay all taxes on the lands when due; that they would not commit or suffer any other person to commit any waste or damage to said land while the purchase price was unpaid, and that if at any time threeafter they should violate or neglect to fulfill any of said agreements, they should forfeit all right or claim under the contract and be liable to be removed from the said land in the same manner as is provided by law for the removal of a tenant that holds over after expiration of the time specified in his lease. Said contract also provided after the violation of any of said agreements on the part of said second parties, it should be lawful for first parties to sell and convey the said land to another without being liable in any way for any damages on account of said sale, and it was expressly understood and declared that time is and shall be deemed and taken as of the very essence of this contract, and that failure to comply with any of its conditions in time and manner therein provided for would cause second parties to lose and be debarred from all actions at law or in equity upon or under the contract.

3. That afterwards, on August 1, 1918, said Boomsma sold and assigned said contract to the plaintiff in this cause, Jeremiah C. Hubbell. Said Hubbell bought the land on a speculation without intending to occupy it and he did not occupy it, and the house and barn and land remained vacant.

The taxes of 1918 amounting to $48.97, said Hubbell at no time paid, and six months' interest on the $3000.00 unpaid on the contract became due February 1, 1919, which he also failed to pay. He also suffered various and sundry people to commit waste and damage to said lands and the appurtenances particularly the house and barn.

4. Defendants Ohler, after making several attempts to collect of plaintiff the interest and taxes in arrears without success, placed the matter in the hands of their attorney who demanded the interest and taxes of both plaintiff and his attorney, and, failing to get the money, on April 12, 1919, they caused a written notice to be served on plaintiff, forfeiting the contract, and declaring all plaintiff's rights thereunder at an end.

5. On April 23, 1919, defendants Ohler, sold and conveyed said land to defendant Byers, for a valuable consideration in good faith, and defendant, Byers, bought the same in good faith, and at once took possession of the land and has since lived upon it.

It thus appearing to the court that the bill of complaint filed in the cause by plaintiff is without equity, that all of plaintiff's rights in the land described in said bill have been terminated, and the contract under which he held forfeited and at an end, and that said contract should be cancelled according to the prayer of defendants' cross-bill, on motion of C. H. Gleason and A. A. Ellis, attorneys for defendants, it is ordered, adjudged and decreed, and this court, by virtue of the power and authority therein vested, doth order, adjudge and decree as follows, viz.:

1. That said plaintiff take nothing by his bill.

2. That said plaintiff do surrender and deliver up to defendants, Louis P. Ohler and Agnes A. Ohler, said land contract to be cancelled, and that it stand cancelled and have no further force or effect.

3. That the deed of said land made by defendant, Ohler and wife to defendant, Byers, stand confirmed as valid deed.

4. That defendants recover of plaintiff the costs of this suit to be taxed.

John S. McDonald,

Circuit Judge. Examined, countersigned and entered by me.

Edward L. Wagner,

Deputy Clerk (I) Briefs of Counsel, John M. Dunham, for Plaintiff.

1. Specific Performance. Specific performance of a land contract is like the specific performance of any other kind of contract. It is not granted as a matter of right, but rests in the sound discretion of the court. Tatten v. Bryant, 198 Mich. 523.

It has therefore been held that each case must rest upon its own peculiar facts, so that the court, while doing justice to one, will work no injustice to others. The delay of many years in bringing such action may work such injustice as to compel a refusal of this remedy. Cook v. Stafford, 86 Mich. 163.

2. Time is the essence of this contract. Morris v. Hoyt, 11 Mich. 9; Richmond v. Robinson, 12 Mich. 193.

3. That the vendor cannot stand entirely upon the provisions of his contract. Bomier v. Caldwell, 8 Mich. 463; Truesdail v. Ward, 24 Mich. 117; Kimball v. Goodburn, 32 Mich. 10.