Pomeroy's Eq. 745, definition there set out.

Authorities Cited by Defendant

(j) Brief for Defendant.-1. Specific performance is not a matter of right. It should only be granted when justice demands it. Ruse v. Conrad, 47 Mich. 449; Cox v. Raider, 138 Mich. 249; Solomon v. Shewitz, 185 Mich. 620.

Defendant Ohler in forfeiting the contract and taking possession and selling the land was strictly within the contract and his legal rights. Mr. Ohler had a right to at once, after giving notice to Hubbell that he declared the contract forfeited, to take peaceable possession of the premises. Murphy v. Mclntyre, 152 Mich. 591, and many cases cited.

It was not necessary for defendant Ohler to bring suit after Hubbell had forfeited the contract and the contract was declared forfeited and notice given to get possession. He got possession peaceably and had the right to take it. Donnelly v. Lyons, 173 Mich. 520.

In this case the placing of one sign only was not sufficient.

Where the premises are vacant and no personal occupancy, there could be no necessity for bringing a possessory action.

As to when equity will relieve from forfeiture, Lozon v. McKay, 203 Mich. 366.

As to when a contract will be enforced, Lake Erie Land Co. v. Chilinski. 197 Mich. 215.

Defendant might have taken possession immediately after declaring contract forfeited. Patterson v. Hogstein, 183 Mich. 470.

That time may be essential where the parties so stipulate, Pomeroy's Eq. Jur. Sec. 816; Heckard v. Sayre, 34 111. 142, holding that neither a court of law nor equity can set aside a stipulation that time is the essence of a contract unless there is fraud or deceit of some kind.

In Nelson v. Smith, 161 Mich. 363, delays and favors by grantor greater than in the case at bar, were held not to be fatal to relying upon time as of the essence of the contract, and enforcing the forfeiture. The head note reads as follows:

"Evidence that the vendor in a contract for the sale of land attempted to assist the purchaser, whose payments were overdue, in finding a loan, and that the purchaser, after being in default three months, wrote letters advising the vendor that he had found a person who would loan him sufficient money to pay the amount due, and that the vendor had said he could fix matters up so neither party would lose much, is not sufficient to establish a waiver or estoppel to enforce a forfeiture for the default."

In the above case, the purchaser had made improvements; in this case, the purchaser had allowed waste and failed to pay the taxes.

In Jones v. Berkey, 181 Mich. 473, the contract was like the one at bar as to time. The case was from Kent Circuit, tried by Judge Brown. The head note covers the holding:

"While, as a general rule, time is not of the essence of a contract to pay money, though the time for payment be fixed, and a declaration of such intention is not conclusive, yet, where the requirement is reasonable, and the circumstances give occasion for it, the parties may properly stipulate that the provision relative to the time of installments to be paid upon a land contract shall be of the essence." and cited Richmond v. Robinson, 12 Mich. 193. It then quotes:

"If time is of the essence, a performance after the time fixed does not bind the other party unless he waives the breach, and thereby, in effect, makes a new contract taking the place of the old one." Clark on Contracts (2nd Ed.) Sec. 233.

The opinion further quotes and says:

"Nothing short of an offer of everything that the creditor is entitled to receive is sufficient, and a debtor must at his peril tender the entire sum due, including all necessary expenses incurred, or damages suffered by the creditor by reason of the default of the debtor." Citing 38 Cyc. p. 137.

A party seeking relief against a forfeiture should tender sufficient to make the other party whole. Stickney v. Parmenter, 35 Mich. 237

The general rule is well stated by Judge Sanborn in National Surety Co. v. Long, 125 Fed. 887, 60 C. C. A. 623, citing many authorities:

"He who commits the first substantial breach of a contract cannot maintain an action against the other contracting party for a subsequent failure on his part to perform."

And the case holds: "After default and resale to a third person, the defendant was entitled to have a sufficient sum tendered to include necessary costs and expenses arising from the undisputed default; to offer merely the payment provided for by the terms of the agreement was insufficient as a foundation for an action for damages.

The difference is pointed out in Miller v. Havens, 51 Mich. 482. The head note is as follows:

"Forfeiture clauses in a lease are not favored by the courts, and their effect will be restricted as far as possible; when the lease explicitly provides that the landlord may treat it as void upon breach of condition by the tenant, his election to do so dissolves the relation between him and his tenant."

The doctrine there announced is firmly established in a case where the Supreme Court adopts the opinion of the lower court, which is very exhaustive and cites the authorities of many states, all to the same effect. That case is DeGrasse v. Verona Mining Company, 185 Mich. 514. We quote from page 537:

"Assuming that a covenant to operate the property may be implied, and that the Verona Company failed to perform such implied covenant, yet the right to forfeit the lease would not follow. The right of forfeiture is confined to the failure of the lessee respecting the covenants and conditions which are expressed in the lease and does not arise upon the non-observance of an implied covenant or condition."

2. Fraud is not to be presumed, but must be proved. (1873) Robert v. Morrin's Estate, 27 Mich. 306; (1877) Cranson v. Smith, 37 Mich. 309, 26 Am. Rep. 514; (1883) Brown v. Dean, 52 Mich. 267, 17 N. W. 837: (1884) Edwards v. Edwards, 54 Mich. 347, 19 N. W. 164; (1907) Raymond v. McKenna, 147 Mich. 35, 110 N. W. 121, 13 Detroit Leg. N. 935.

Fraud is not presumed, and it is not ordinarily necessary to negative it until some proof is offered tending to show it. Attorney General v. Ruggles, 59 Mich. 123, 26 N. W. 419.

3. "Waste is whatever tends to the destruction of the inheritance or to its depreciation in value, and may be committed, of land as well as in houses and timber." Wilds v. Layton (1 Delaware Ch. 226).

"The impoverishment of fields, by constant tillage from year to year is waste." Sarles v. Sarles, et al., Vol. 3 Sanford's Chancery Reports, 601