(c) And that the record of said land contract that may remain in the office of the register of deeds for the County of Ogemaw be discharged and decreed to be null and void.

(d) And that this defendant have leave to cause such decree to be recorded in the office of the said register of deeds of said County of Ogemaw.

(e) And that this defendant may have such other and further relief in the premises as shall be agreeable to equity and good conscience.

(f) And this defendant will ever pray.

James McKay, Defendant. William T. Yeo,

Attorney for Defendant,

Business Address, West Branch, Mich.

(Verification.)

(d) Brief for Plaintiffs.-This court has repeatedly in its opinions held against strict foreclosure. If the defendant in this case prevails we submit that the entire proceeding smacks of a strict foreclosure and ought not to be approved if plaintiffs were, even after notice of forfeiture, in position to make the defendant whole. "A party seeking relief against forfeiture should tender sufficient to make the other party whole." Morris v. Hoyl, 11 Mich. 9. Stickney v. Parmenter, 35 Mich. 237. Hickman v. Chaney, 155 Mich. 217. Sweet v. Purinton, 166 N. W. 161.

In this case there was no actual tender, but every other thing was done which could be done under the circumstances, and that immediately after notice of forfeiture. We believe that plaintiffs being in possession defendant had two remedies,-1st: either to begin summary proceedings, or second, to begin foreclosure proceedings. In either of these events plaintiffs would have had the right to redeem.

If the service of a notice of forfeiture divested plaintiffs of all their right in said property then defendant has no reason to come into a court of equity and ask to have a cloud removed from his title because if this mere service of a notice of forfeiture divests plaintiffs of their rights in said property, then said court would have nothing to take away from them because they have nothing to do with it. 3 C. L. 1915, Sec. 13253, Lambton Loan & Investment Co. v. Adams, 132 Mich. 350.

The above case is short and we think to the point because of the fact that if plaintiffs were in possession no steps were taken by defendant to oust them.

(e) Brief for Defendant.-All the rights of plaintiffs have become forfeited at law as was held in the case of Pendil v. Union Mining Co., 64 Mich. 174. The court is not asked to declare the forfeiture but to ascertain whether or not the complete 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.

In the case of Donnelly v. Lyons, 173 Mich. 515, the facts therein are similar as to claim of attempt to make payment after notice of forfeiture and that defendant should have resorted to some other action, in which case the court in reviewing the authorities therein stated found in respect to tender: "It does not seem reasonable, however, that if he had made a bona fide offer to carry out the contracts he could not have done so. He did not have any difficulty in making a tender both to her and her attorney after notice of forfeiture." There certainly could be no necessity of bringing a personal action under these facts where no personal occupancy or interference would be encouraged in the taking of possession, and therein referring to the case of Lambton Loan & Investment Co. v. Adams, 132 Mich. 350, the said court held: "'The proceeding commented upon was purely a possessory action and no such proceedings are necessary in the instant case.' "

(f) Holding of the Court.-It is clear that a decree for specific performance cannot be made. Treating the Bill as amended so as to ask for relief from the forfeiture and extend to their limits the rules governing the granting of relief in such cases, the decree below may be modified so as to relieve plaintiffs from the forfeiture upon the condition that within sixty days after entry of decree in this court they pay to defendant or to the Register of the Circuit Court for the County of Ogemaw the unpaid purchase price of land with all arrearages of interest and any sum paid by defendant for taxes upon the land with costs of both courts, upon which payment defendant shall execute and deliver the conveyance in accordance with the contract. In default of which payment defendant shall have the relief granted him in the court below with costs of both courts.

HUBBELL v. OHLER, 213 Mich. 664-

(a) Brief Statement of Fact.

(b) Bill of Complaint.

(c) Answer to Bill.

(d) Answer of Plaintiff to the Cross-Bill of Defendants.

(e) The Contract Involved-"Exhibit B."

(f) Transfer of the Contract to the Plaintiff Hubbell-"Exhibit C."

(g) Notice of Forfeiture-"Exhibit A." (h) Decree.

(i) Brief of Counsel, John M. Dunham, for Plaintiff.

(j) Brief of Counsel, Ellis & Ellis, and Clark H. Gleason, for Defendant HUBBELL v. OHLER, 213 Mich. 644-

(a) Brief Statement of Fact.

This was an action for specific performance brought against the defendants upon a land contract wherein the plaintiff had paid one-half the purchase price by the transfer of other property, leaving a balance due upon the contract of $3000.00. The contract was in the usual form with the exception that it contained a clause reading as follows:

"That it shall be lawful for said parties of the first part at any time after the violation or non-fulfillment of any of said agreements on the part of the said parties of the second part, to sell or convey said land or any part thereof to any other person whatsoever."

The plaintiff having become in arrears upon the interest and taxes upon said contract caused a notice of forfeiture to be served upon the plaintiff, forfeiting the contract, and declaring all of plaintiff's rights thereunder at an end.