The conditions in the deed to Boyle regarding the building and maintenance of fences, a farm crossing, and culverts for the farm ditches were true "conditions subsequent."

1 Jones, Real Prop. § 638; Gallaher v. Herbert, 117 Ill. 160, 7 N. E. 511; Hoyt v. Ketcham, 54 Conn. 60, 5 Atl. 606; Blanchard v. Detroit, L. & L. M. R. Co. 31 Mich. 43, 18 Am. Rep. 142.

The addition of a clause of re-entry makes it unmistakable that a condition was intended.

1 Jones, Real Prop. § 638; Cornelius v. Den, 26 N. J. L. 376; Ellis v. Kyger, 90 Mo. 600, 3 S. W. 23; Pepin County v. Prindle,

relief is asked, and the forfeiture thereby saved.

Equity may relieve against a forfeiture for nonpayment of money within a time fixed, if the amount is tendered together with interest. Beecher v. Beecher, 43 Conn. 556.

Equity will relieve against forfeiture of a leasehold where it has been incurred by neglecting to pay a certain sum of money the interest on which can be calculated with certainty, and the landlord thereby compensated for the inconvenience he may sustain by the tenant's withholding payment. Bacon v. Western Furniture Co. Wilson Super. Ct. (Ind.) 567.

In Ritchie v. Kansas, N. & D. R. Co. 55 Kan. 36, 39 Pac. 718, which was an action to recover land conveyed to a railroad company for failure to maintain a depot on it, the court adopts the following statement of the law: Wherever a forfeiture is inserted merely to secure the payment of money or the performance of some act or the enjoyment of some right or benefit, equity regards such payment, performance, or enjoyment as the real or principal intent of the instrument, and the forfeiture merely as an accessory, and will therefore relieve the obligor from the forfeiture whenever the actual damages sustained by the other party can be adequately compensated.

So an agreement between purchasers of real estate that, upon the failure of one to pay his share of the purchase price, his interest in the land shall vest in the other, is a provision for a forfeiture against which equity will relieve. Asher v. Pendleton, 6 Gratt. 628.

So, where a contract for sale of land provides that default in making deferred payments at the day specified shall work a forfeiture of the estate. giving the vendor the right to repossess himself of the estate, the provision will be regarded as in the nature of a penalty, from which equity will relieve. Re Dagenham (Thames) Dock Co. L. R. 8 Ch. 1022.

Where a mortgage is held to leave a conditional title in the mortgagor until breach of condition, courts of equity look upon provisions for forfeiture for nonpayment of the amounts due as in the nature of a penalty, and give relier accordingly. This is done by allowing the mortgagor to redeem the land on equitable terms at any time before the right to do so is barred by foreclosure. These courts, looking at the substance of the transaction rather than its form, and with a view to giving effect

By the terms of the deed it is to remain in force provided the grantee does the thing stipulated for; but, if not, the land is to revert. The absence of an express covenant to perform has been held to furnish proof that a condition subsequent is intended.

1 Jones, Real Prop. § 639; Brown v. Chicago & N. W. R. Co. (Iowa) 82 N. W. 1003; Richter v. Richter, 111 Ind. 456, 12 N. E. 698; Blanchard v. Detroit, L. & L. M. R. Co. 31 Mich. 43, 18 Am. Rep. 142; Gilchrist v. Foxen, 95 Wis. 438, 70 N. W. 585.

Acceptance of a deed and possession of land thereunder bind the grantee to the conditions contained therein.

Bishop v. Douglass, 25 Wis. 696; Leach to the real intentions of the parties, hold that the mortgage was a mere security for the payment of the debt; that the mortgagor was the real beneficial owner of the land, subject to the encumbrance of the mortgage; that the interest of the mortgagee was simply a lien and encumbrance on the land, rather than an estate in it. Equity courts, in allowing a redemption after a forfeiture of the main estate. uniformly require the mortgagee to reconvey to the mortgagor. Barrett v. Hinckley, 124 Ill. 32. 7 Am. St. Rep. 331, 14 N. E. 863.

In Sanborn v. Woodman, 5 Cush. 36, which involved the power of a court of law to stay proceedings upon a writ of entry to recover possession of property because of breach of condition to indemnify the grantor against liability upon a mortgage, the court says that. where the forfeiture is designed to secure the payment of a sum of money, a court of equity will grant relief on payment of the money secured, with interest.

In Atkins v. Chilson, 11 Met. 112, the court. in considering the question whether or not a court of law had power to stay a writ of entry for alleged forfeiture of a lease, said: That a court of equity would grant relief in a case like this is not questioned, and cannot be denied. The true foundation of equitable relief in cases of forfeiture is limited to such cases as admit of compensation according to the original intent of the parties. In all cases where the forfeiture is designed to secure the payment of a certain sum of money. a court of equity will grant relief on payment of the money secured, with interest.

But in Hancock v. Carlton, 6 Gray, 39, it is stated that how far and under what circumstances courts of equity will give reliet in cases of forfeiture by reason of nonperform. ance of conditions subsequent seems to be a vexed question in the English courts. Certainly the broad ground of giving relief in all cases where a forfeiture has been occasioned

by a nonpayment of money at the stipulated time, upon an offer to pay the same and the accruing interest, has not been fully sanctioned. And the statement of Story on Equity.

1323, is cited to the effect that the present English doctrine is that in all cases of forfeiture for the breach of any covenant other than a covenant to pay rent no relief will be granted in equity, unless upon the ground of

Mere breach of the condition does not determine the estate, notwithstanding the deed expressly provides for reverter to the grantor, but it will continue until defeated by reentry or some equivalent act.

1 Jones, Real Prop. §§ 708, 712; 1 Sharswood & B. Real Prop. 143; Little Falls Water-Power Co. v. Mahan, 69 Minn. 253, 72 N. W. 69; Cross v. Carson, 8 Blackf. 138, 44 Am. Dec. 754; Ellis v. Kyger, 90 Mo. 600, 3 S. W. 23.

The usual way of taking advantage of a condition subsequent is by an entry made for that purpose.

2 Washb. Real Prop. 14; 1 Jones, Real Prop. 88 712, 715, 716; 1 Sharswood & B.

accident, mistake, fraud, or surprise, where the breach is capable of compensation.

As appears from the discussion in subd. IV., infra, this question as to what part fraud, accident, or mistake plays in the granting or withholding of relief is a vexed one; but, from the cases collected in this main division, it clearly appears that, so far at least as the American courts are concerned, where the forfeiture is provided merely to secure the payment of money, relief will be granted although neither of those special grounds of equity intervention is shown.

2. Grant or devise on condition of support. Within the rule that equity will relieve if compensation can be made, are the cases in which property is granted or devised on condition that support be furnished to the grantor or some other person during life. In most such cases the condition is inserted merely to secure the prompt payment of money, and, except in cases of peculiar hardship, equity will not permit a forfeiture merely for failure to make the payments promptly.

Where a deed in escrow is to be delivered to the grantee upon his performance of a condition as to support of the grantor, equity will relieve from a breach of the condition, although it is a condition precedent, if it is equitable, under the circumstances, that relief shall be granted. Chipman v. Thompson, Walk. Ch. (Mich.) 405.

Where land was conveyed on condition of the payment of quarterly instalments to the grantor, the court held that failure to pay did not work an ab olute forfeiture, but that the failure must be taken advantage of by the grantor; but added that the circumstances are such that a court of equity would have relieved against the forfeiture, even if the condition had been absolute. Berryman v. Schumaker, 67 Tex. 314, 3 S. W. 46.

138, 44 Am. Dec. 742; Bowen v. Bowen, 18 Conn. 535; Hubbard v. Hubbard, 97 Mass. 188, 93 Am. Dec. 75; Frost v. Butler, 7 Me. 225, 22 Am. Dec. 199; Gilchrist v. Foxen, 95 Wis. 428, 70 N. W. 585; Horner v. Chicago, M. & St. P. R. Co. 38 Wis. 165.

The present action was brought to protect plaintiff's possession after re-entry by her grantor, and after conveyance and delivery of possession by him to her. She did not and never intended to bring an action in equity to declare or enforce a forfeiture.

Not only is it well settled that a forfeiture cannot be enforced in that form of action (Lawe v. Hyde, 39 Wis. 345; Mills v. Evansville Seminary, 47 Wis. 362, 2 N. W. 550; Clark v. Drake, 3 Pinney [Wis.]

the penalty which he consented to accept as a condition of the grant. In all such cases equity will relieve.

In Shade v. Oldroyd, 39 Kan. 313, 18 Pac. 198, a conveyance had been made in consideration of the yearly payment of a certain sum to the grantor during life, upon condition that a failure to pay at the time and in the manner specified would forfeit all right and interest in the premises. l'ayments were not made when due, and forfeiture was declared, and ejectment was brought to recover possession of the property. There was judgment for defendants, and the court, without discussing the question how the defense could be made in that form of action, affirms the judgment, stating that this was a case in which a strict forfeiture could not be insisted upon, the condition being one for the payment of money only, and all preceding payments having been made without much regard to the precise time of their maturity. The court, in the headnote, says that equity will not enforce such a forfeiture on slight grounds; but, since the action was at law for possession of the property, and not in equity for a forfeiture, it is difficult to see on what theory the court acted.

In Bethlehem v. Annis, 40 N. H. 34, 77 Am. Dec. 700, it is intimated that relief may be afforded by equity for breach of a condition to furnish life support, upon the ordinary principles by which parties are relieved from other penalties.

In Donnelly v. Eastes, 94 Wis. 390, 69 N. W. 157, a conveyance of a farm in consideration of support of the grantor during life was held to create a condition subsequent; and the court held that, even if the title had revested, under the terms of the deed, upon breach of the condition, the court was not powerless to relieve from the consequences thereof.

1 Jones, Real Prop. § 682; 6 Am. & Eng. Enc. Law, p. 505; Ellis v. Kyger, 90 Mo. 600, 3 S. W. 23.

Demand of performance is unnecessary, except where the act to be performed depends upon some previous or contemporaneous act to be done by the grantor.

1 Smith, Lead. Cas. 8th ed. 132; 1 Sharswood & B. Real Prop. § 144; Langley v. Chapin, 134 Mass. 82; Plumb v. Tubbs, 41 N. Y. 442; Liebrand v. Otto, 56 Cal. 242; Whitton v. Whitton, 38 N. H. 127, 75 Am. Dec. 163; Ellis v. Elkhart Car Works Co.

There being no time specified in the deed

be best carried out by substituting an equivalent in its stead, and not by enforcing a recovery which is excessive in value and different in nature; and relief, we believe, is never denied where the breach is accidental and without fault, and admits of compensation.

In Austin v. Raymond, 9 Vt. 420, a father granted his farm to his son, taking back a mortgage to secure support. The son gave a second mortgage upon the property, became insolvent, and left the country. The father thereupon attempted to enforce a forreiture of the farm for breach of the condition of the mortgage, but the court held that, in favor of the second mortgagee, it would allow him to make compensation for the support, and retain his interest in the property.

But in Dunklee v. Adams, 20 Vt. 415, 50 Am. Dec. 44, the court held that relief will not be granted in equity against forfeiture for breach of a condition requiring the grantee to furnish personal care and attention to the grantor. In such case the time of the performance is of the very essence of the contract. It is impossible to put the covenantee in the precise situation he would have been in if the condition had been performed. The court distinguishes Austin v. Raymond, 9 Vt. 420, on the ground that that was not a bill for relief against a forfeiture.

In Henry v. Tupper, 29 Vt. 358, the court considered that the question had not been settled by either the Austin or Dunklee Case, and proceeded to examine it de novo. The question in that case arose upon a deed with a defeasance clause by which it was to become void in case the grantor, inter alia, furnished support to the grantee. The court said that in such cases relief should be afforded with more reserve and circumspection than in ordinary cases of collateral duties. And, although we are not prepared to say that it must appear

that in all cases the failure arises from surprise, or accident, or mistake, we certainly should not grant relief when the omission was wilful and wanton, or attended with suffering or serious inconvenience to the obligee, or there is any good ground to apprehend a recurrence of the failure to perform. The court says there are cases where the default is of SO gross a nature that not to afford relief will be to make the court almost partaker in the

Ind. 424, 2 L. R. A. 526, 19 N. E. 202.

A condition subsequent is not waived by offense. But, on the other hand, there are cases where, through mere inadvertence, a technical breach may have occurred, by reason of which an estate of great value is likely to be forfeited, where the collateral service was not of a great value and its absence is not attended with serious inconvenience to the obligee. Not to afford relief in such case would be a discredit to the enlightened jurisprudence of the English nation, and those American states which have attempted to follow the same model.

So equity will not relieve against breach of a condition in a deed to support the grantor and his wife during life, where the breach consists of profane abuse and heartless neglect. Rowell v. Jewett, 69 Me. 293.

3. Grant or devise on condition of payment of money.

Such conditions are usually treated as mere securities, and the forfeiture is saved if compensation is made.

Where land was devised on condition that the devisee should pay a certain sum to the heir at law in yearly payments, the heir entered for nonpayment of one of the instalments, and claimed that equity ought not to relieve, since to do so would be in disherison of the heir. But it was held that the entry was only to enforce payment, and that equity could give interest for the sum from the time payment was due, and would relieve. Grimston v. Bruce, 1 Salk. 156, 2 Vern. 594.

Where land was conveyed in trust upon condition that, if the grantor's son raised a portion for his younger children within six months after the death of the grantor, the property was to be conveyed to him; and the son neglected to raise the portion, and died,-in a controversy between his grantees and parties claiming a forfeiture, the court held that it looked upon the condition precedent as in the nature of a penalty, and would regard the intent of the trust so that, upon compliance with the condition, relief would be given to the grantees of the son. Wallis v. Crimes, 1 Ch. Cas. 89.

Where land was devised to testator's son, charged with an annual rent to testator's widow during life, and with the payment of a valuation to be put on it after the widow's death

1 Jones, Real Prop. § 705; 2 Devlin, Deeds, § 959; 6 Am. & Eng. Enc. Law, p. 508; Royal v. Aultman & T. Co. 116 Ind. 424, 2 L. R. A. 526; 19 N. E. 202; Pepin County v. Prindle, 61 Wis. 301, 21 N. W. 254; Rowell v. Jewett, 71 Me. 408; Upington v. Corrigan, 151 N. Y. 143, 37 L. R. A. 794, 45 N. E. 359.

Uhen made re-entry upon these premises in due legal form. Such act of re-entry invested him with the full legal title to the premises.

Jones, Real Prop. § 716; Brickett v. Spofford, 14 Gray, 514; Hancock v. Carlton, 6 Gray, 60; Bowen v. Bowen, 18 Conn. 535; O'Brien v. Doc, 6 Ala. 787; Dugan v.

and paid by the devisee for the benefit of the residuary estate, and the devisee died without having paid the valuation, whereupon the residuary devisees sought to obtain possession of the land, the court said if the provision was a condition equity would relieve the devisee from a forfeiture by his performance of the condition by paying the money, with interest, from the date of the valuation. Hart v. Homiller, 20 Pa. 248.

Where an estate was devised on condition that a certain sum should be paid to each or the daughters of the grantor, and the devisee refused to pay the money for three years, and then came in and tendered payment, the chancellor held that, although, in strictness of law. the estate was forfeited on nonpayment of the money, yet, this was but a security for money, which having been tendered, there was no damage, and so the forfeiture was saved. Wheeler v. Whithall Fee". Ch. 9, 2 Eq. Cas. Abr. 360. In Hayard v. Angell, 1 Vern. 223, where the question was whether the death of one of the daughters before signing the release defeated a provision of a portion for testator's three daughters if they should release certain lands to his heir, the lord keeper said that, in all cases where the matter lies in compensation by the condition precedent or subsequent, he thought there ought to be relief.

Upon devise of testator's real estate to his kinsmen upon payment of a certain sum to each of testator's daughters within a specified time, the money was not paid, and the heirs at law entered; but equity relieved the devisee notwithstanding the devise was in disherison of the heir. Barnardiston v. Fane, 2 Vern. 366. Where land was devised in trust for the use of testator's daughter for life with remainder to her children, provided she pay a certain sum to testator's executors within a specified time; and there was a failure to pay,-the court granted relief to the remainder-men on the ground that it was clearly a devise on condition subsequent, in which compensation could be made. Carpenter v. Westcott 4 R. I. 225.

Where real estate is divised on condition that money be paid by the devisee to another within a specified time, equity will relieve a forfeiture for failure to comply with the condition within

Cobb, 36 N. H. 344; Gilchrist v. Foxen, 95 Wis. 428, 70 N. W. 585.

And, having such title, he could convey the premises to another.

Horner v. Chicago, M. & St. P. R. Co. 38 Wis. 165; Langley v. Chapin, 134 Mass. 82. It is not in general necessary that damage should ensue to a grantor in order that he may avail himself of the breach of a condition subsequent.

Gray v. Blanchard, 8 Pick. 289; Pepin County v. Prindle, 61 Wis. 309, 21 N. W. 254; 2 Washb. Real Prop. § 17, p. 19; Clapp v. Wilder, 176 Mass. 332, 50 L. R. A. 123, 57 N. E. 692.

Conditions subsequent are as binding upon railroad corporations as upon natural persons.

the time, since compensation can be made. Walker v. Wheeler, 2 Conn. 299.

And that case was followed in Bowen v. Bowen, 20 Conn. 127.

So where a deed was given upon condition that it should be void upon failure of the grantee to pay a bond within a certain time, which was permitted to elapse without making the payment, it was held that equity had jurisdiction of a suit to redeem. Rogan v. Walker, 1 Wis. 527. The court applied the rule that equity will relieve against a condition subsequent whenever compensation can be made.

So, where an estate devised on condition of the payment of certain debts of the testator in relief of the surety is sold for the payment of such debts, the surplus will be decreed to the devisees, and not to testator's heirs, for the reason that equity will relieve against the forfeiture, full compensation having been made. Thompson v. Whipple, 5 R. I. 144.

Where land was devised upon condition that testator's debts and legacies should be paid by the devisee within two months after the death of testator's wife; and the heir entered for breach of the condition in the failure to pay certain legacies within the time; whereupon the assignee of the devisee sought relief in equity, the reporter states that the court, upon view of precedents in cases of like nature, was clear of opinion to give relief to the plaintiffs notwithstanding the forfeiture. derwood v. Swain, 1 Rep. in Ch. 161.

Un

In Bland v. Middleton, 2 Ch. Cas. 1, testator devised his land to his daughter, but provided that in case his son should pay her a certain amount by a day named he should have the land. The money was not paid, and the daughter sold the land. There is nothing in the report of the case to show the nature of the ac tion, but it is stated that it was decreed against the vendee, he paying the money. That would seem to imply that the action was against him for specific performance, and that the condi tion was held to be no defense. However, the report continues: "He took it but in the nature of a security;" although it was objected that "this is a contingent devise to the son on payment," which would indicate that the controversy was between the son and the grantee. The reporter appends a query as to the correct

Horner v. Chicago, M. & St. P. R. Co. 38 Wis. 165; Schlesinger v. Kansas City & S. R. Co. 152 U. S. 444, 38 L. ed. 507, 14 Sup. Ct. Rep. 647; Indianapolis, P. & C. R. Co. v. Hood, 66 Ind. 580; Taylor v. Cedar Rapids & St. P. R. Co. 25 Iowa, 371; Owensboro & N. R. Co. v. Griffith, 92 Ky. 137, 17 S. W. 277; Howell v. Long Island R. Co. 37 Hun, 381. Breach followed by re-entry not only devests the title of the original grantee, but avoids all intermediate rights acquired by third parties.

Gilchrist v. Foxen, 95 Wis. 428, 70 N. W. 585; Schlesinger v. Kansas City & S. R. Co. 152 U. S. 444, 38 L. ed. 507, 14 Sup. Ct. Rep. 647; Barker v. Cobb, 36 N. H. 344.

Land could not be taken under the right of eminent domain for such a track as this.

ness of the decision, and the report of the case is such as to make it of little value.

Where a man devised his land to his oldest daughter upon condition that within six months she should pay certain sums to her sisters, on default of which the second should have the same privilege, and so on, and the oldest did not make the payment within six months, the court held that it would enlarge the time of payment beyond the six months, even in case of a condition precedent. Woodman v. Blake, 2 Vern. 222. The reporter, in a note, states that this case appears to have been reversed by the House of Lords January 14, 1691.

And in an earlier case it had been held that. where a testator devised his land to his oldest daughter "if she shall pay a certain amount to her sisters in six months, and, if she shall not, then the others in turn to have the same privilege," time is of the essence of the condition, and equity will not enlarge it. Maston v. Willoughby, 2 Eq. Cas. Abr. 211, 5 Vin. Abr. 93, pl. 12.

And where a father made a voluntary settlement on his eldest son, with a provision that, if he did not pay a certain sum to the second son at the age of twenty-one, the estate, both in law and in equity, should cease; and the eldest son did not comply with the condition, whereupon the father made a new settlement,the court refused to relieve, because, the settlement being merely voluntary, the father might make such conditions as he thought fit Longdale v. Longdale, 1 Vern. 456.

4. Nonpayment of rent.

Perhaps the most familiar instance of equitable relief is its prevention of a landlord's attempted termination of the lease for nonpayment of rent.

Relief may be granted for breach of covenant to pay rent, although the rent is a rack-rent equal to the value of the land. Taylor v. Knight, 4 Vin. Abr. chap. Y, pl. 31, p. 406. The decision was made against the contention that the rule of relief extends only to beneficial leases, where fines have been paid or great sums laid out in improvements, so that the tenant is a sort of purchaser of part of the interest in the term. The court held that in this and the like cases the clause of re-entry is in the nature of a penalty, and therefore relievable

Hays v. Risher, 32 Pa. 169; Chicago & E. I. R. Co. v. Wiltse, 116 111. 449, 6 N. E. 49; Sholl v. German Coal Co. 118 Ill. 427, 59 Am. Rep. 379, 10 N. E. 199; Gustafson v. Hamm, 56 Minn. 334, 22 L. R. A. 565, 57 N. W. 1054; Glaessner v. Anheuser-Busch Brewing Asso. 100 Mo. 508, 13 S. W. 707; Pittsburg, W. & K. R. Co. v. Benwood Iron Works, 31 W. Va. 710, 2 L. R. A. 680, 8 S. E. 453; Re Split Rock Cable Road Co. 128 N. Y. 408, 28 N. E. 506.

Numerous cases will be found in the reports where chancery has sustained an action, after condition broken and re-entry, to remove a cloud on the title by canceling the conveyance containing such condition.

Gilchrist v. Foxen, 95 Wis. 428, 70 N. W. in a court of equity upon making satisfaction to the injured party.

In Doe er dem. Jersey v. Smith, 7 Price, 326, Wood, B., in observing upon the statute regulating the relation of landlord and tenant says that before its passage, even if the landlord had succeeded in making out a case for ejectment, it was the uniform practice of courts of equity to relieve the tenant against the forfeiture upon payment of the rent and costs.

Equity will relieve a lessee from forfeiture for nonpayment of rent where there is a proviso in the lease that in that case the lease shall be void, as well as where there is a mere power of re-entry. Bowser v. Colby, 1 Hare, 109.

In Garner v. Hannah, 6 Duer, 262, which was an action involving a forfeiture of a 'leasehold for nonpayment of rent, the court says: I take the rule to be well settled that equity will readily, where the breach is not wilful. relieve from a forfeiture, as where the stipulation is obtained as a mere security for the pay. ment of money, and precise compensation can be made. And the tenant cannot be prejudiced as to this relief by the mere fact that judgment is obtained in favor of the landlord.

Equity will relieve against a forfeiture for nonpayment of rent, unless the defaulting party, by his inequitable conduct, has debarred himself from such relief, or the special circumstances show that the relief should not be given. Sunday Lake Min. Co. v. Wakefield, 72 Wis. 204, 39 N. W. 136.

In Kemble v. Graff, 6 Phila. 402, the court granted relief against a forfeiture for nonpayment of rent where the rent was tenderea after only a few days' delay, and no injury had been done to the lessor.

Equity will relieve from the forfeiture of a lease if the tenant acts in good faith and promptly pays the rent when demanded, or before the landlord suffers loss or inconvenience from the default. Wilson v. Jones, 1 Bush, 173.

The true ground of relief from forfeiture of a leasehold for nonpayment of rent is from the original intent of the case where the forfeiture is designed only to secure money, and the court can, by way of recompense, give all that was expected or desired. The right to redeem and continue the lease, even after forfeiture and reentry, exists whenever the lessee will pay what