4. The failure to perform within the time fixed will not necessarily forfeit a contract. Relief is not a matter of right. It is granted only if, under all circumstances including the conduct of the parties, it is just and reasonable. Gram v. Wasey, et al., 45 Mich. 223.

The delay of a few days has been held immaterial, giving the plaintiff a clear right to specific performance. Voltz v. Grummett, 49 Mich. 453.

In a number of other cases the court has granted specific performance on the sole condition that plaintiff be requried to pay what was due with compound interest. Richards v. White, 44 Mich. 622.

The plaintiff, Hubbell, tendered interest upon interest before filing this bill, and kept his tender good by paying same to the clerk of the Circuit Court.

5. Foreclosing Contract. Without some legal procedure, the equitable rights of the vendee in a contract, cannot be said to be cut off. In Lambton Loan & Investment Company v. Adams, 132 Mich. 350, it is said that three methods are open to the vendor when the vendee fails to make his contractual payments: (1) a suit in equity to foreclose the vendor's lien or cancel the contract; (2) the legal action of ejectment; (3) proceedings under the statute before the Circuit Court Commissioner. Ohler did none of these.

In Miner v. Dickey, 141 Mich. 518, the defendant did not pay the taxes even after plaintiff had demanded that he so do. No further notice nor demand of any kind was made before plaintiff began summary proceedings. On appeal to the Circuit Court, a verdict was directed for plaintiff which was affirmed by this court. Welling v. Strickland, 161 Mich. 235.

The vendor in a contract has conveyed the equitable title to his vendee. He has a lien against the land only for the unpaid purchase price. In Fitzhugh v. Maxwell, 34 Mich. 138, it is held that a court of equity has no jurisdiction to enforce a forfeiture. The English practice required a sale to satisfy his lien, on the theory that the vendee's title, either legal or equitable can only be divested by a sale. See also Kulling v. Kulling, 124 Mich. 56.

6. Notice of Forfeiture. There must be some notice of forfeiture. La France v. Griffin, 160 Mich. 236.

This notice should give a time for payment or redemption. At any rate, the vendee must offer to pay within a reasonable time. Hogsett v. Ellis, 17 Mich. 351; Lavin v. Lynch, 203 Mich. 143; Walker v. Casgrain, 101 Mich. 604.

Pomeroy's Eq. 4th Ed. Sec. 816. The form of action is sustained by many authorities. We refer to the recent case of Schoenfeld v. Kemter, 211 Mich. 464, where the relief, however, was not granted. In Gregor v. Olde, 209 Mich. 43, Justice Steere, writing the opinion of the court, said:

"That equity courts have jurisdiction to relieve from forfeitures, direct accounts, and grant specific performance where equitable grounds to those ends are properly charged and satisfactorily proven, is textbook law and not open to question."

And we refer especially to the case of Lozon v. McKay, 203 Mich. 364, where a bill drawn in substantially the same manner as the one in this case, was upheld, and the plaintiff relieved from forfeiture.

It follows, therefore, from the equities of this case, the diligence and the good faith of plaintiff, the undue haste of the defendants, their conduct and actions, their motives, the profit Ohler made from the resale, the small equity he had in the farm, the large equity of plaintiff, together with all other circumstances, that plaintiff is entitled to relief. If the sale to Byers was made in good faith, then he is entitled to an accounting which, in our judgment, should give him the value of his equity, less the taxes paid by Ohler the summer following the sale to Byers, which would be $3,200 less $52.89 (84).

In Hawley v. Sheldon, et al., Harrington's Chancery, page 420, specific performance was refused but such an accounting was directed.

7. Waste. We believe there is no merit to defendant's claim of waste. This consisted of allowing the roof to get out of repair and water to leak down. Damage of this kind, due to the elements or to natural wear and tear, is never treated by the law as waste. They claim that some doors had been taken out of the house and some stanchions out of the barn, and that these things happened because Hubbell was not living on the place to watch it. Ohler did not know of these things, however, until after he had declared a forfeiture. This element is injected into the case simply as an alibi. He also claims that waste was committed because the fences were not kept in proper condition, but Boomsma, the former owner, testified: "The fences around the barn were awful bad."

It is said in Pomeroy's Equity, Fourth Edition, Section 857: "The vendor's only interest in the use of the land he has contracted to sell is to have his security unimpaired so that it may satisfy the unpaid purchase price. The vendee in possession is entitled to make any use of the property so long as he does not materially affect its value as security for the purchase money. In order that the vendor may have an injunction to prevent waste, he must show that the vendee is lessening the value of the land so as to impair his security, and thus to injure his property-the security. The analogy to the mortgage is close. Mortgagee cannot maintain an action to restrain waste without showing that his security will be impaired."

No such showing was made in this case. Ohler had ample security. His equity was then not over $800.00 and he himself testified that the thing he complained of was the nonpayment of interest and taxes, and that he tried to forfeit the contract because of those. He had not been on the place at that time . This case is wholly unlike Welling v. Strickland, supra, and proposition, therefore, has no merit and needs no further discussion.

8. Defendant Byers was not a bona fide purchaser of this property, in good faith.