possession thereof. The judgment of the Circuit Court is reversed and the cause remanded with directions to render judgment in favor of the plaintiff according to the prayer of the complaint. Cassoday, Ch. J., dissenting: seems clear in the possession of the premises described. Each of the answers denies such allegations, and alleges that at all such times the defendant ice company was the owner in fee simple, and in the exclusive possession of such premises. Such was the controversy between the parties. At the close of the testimony the plaintiff requested the court to find that January 4, 1900, Boyle's grantor made re-entry in person upon the land in question, and declared the title thereto forfeited for noncompliance with the condition subsequent in the deed, and took possession of the same, and thereupon conveyed the same to the plaintiff. The trial court refused to so find, presumably upon the ground that this court had repeatedly held that "courts of equity will not take juris I do not understand this to be a bill in equity brought by the defendants, or either of them, to relieve themselves from a forfeiture. On the contrary, I understand it is a bill in equity filed by the plaintiff to have a forfeiture adjudged in her favor, and to enforce the same. The complaint alleges that at the times mentioned the plaintiff was the owner in fee simple and that arise upon legacies out of land, the court | very properly followed the rule that the common law prescribes and common sense supports to hold the condition binding where it is not illegal. Where it is illegal, the condition will be rejected, and the gift pure. In regard to legacies out of personalty, the court attempted to follow the supposed rule of the ecclesiastical court. Distinction upon distinction was taken to get out of the supposed difficulty. The rule of the civil law as to restraints upon marriage was said to be inapplicable in England. So far, therefore, as a condition operates in restraint of marriage only up to twenty-one years of age, it is not illegal, and a court of equity will not relieve against its breach. The question is not whether a forfeiture has been incurred, but whether the parties to whom the legacy is given have put themselves in a situation to answer the description of the person to take. The chancellor also says: "I do not see the great importance of the distinction upon a bequest over of the legacy. It is one of the points that occurred to the judges to deliver them from the difficulty arising from a rule of the civil law." And that case was followed in Clifford v. Beaumont, 4 Russ. Ch. 325. VIII. After forfeiture declared. Although the mere declaration of the forfeiture will not, of itself, destroy the power of equity to afford relief, yet that is an important step towards the assertion of the rights of the obligee; and, where he has taken the necessary steps to reassert his title at law, the obligor must make a stronger case to entitle himself to relief. In Gould v. Bugbee, 6 Gray, 371, the court held that evidence to show the forfeiture and entry was admissible in an action of trespass, for, "though the defendants were relievable in equity," proof of the facts offered would enable plaintiffs to maintain action for damages at law. an Even though an action is brought in equity to compel the reconveyance for breach of a condition subsequent after re-entry for the forfeiture, that court will not aid the grantee on the theory that it will not aid in the enforcement of a forfeiture if the forfeiture nas already been declared, and all that remains is the right to remove the cloud from the title of the grantor. Parsons v. Smilie, 97 Cal. 647, 32 Pac. 702. The court says that the re-entry at law revested the title in the grantor, and that, in order to defeat his right to remove the cloud from his title, it would be necessary for the grantee to show that equity has the power to defeat the operation of the law and the acts of the parties, and take away from the grantor the estate which has become re vested in him and again vest it in the grantee. Where a tenant refused for twenty years to perform his covenants, the court denied him relief from an entry for forfeiture for the breach. Cox v. Higford, 2 Vern. 664. Relief will not be granted to a lessee if the lessor has entered for nonperformance of the covenant, so that he cannot be restored to his former position. Peoples' Bank v. Mitchell, 73 N. Y. 406. Where the tenant wilfully refuses to pay the arrears, he will not be relieved after the landlord has entered and leased the premises to another. Dorrington v. Jackson, 1 Vern. 449. In Stamps v. Cooley, 91 N. C. 316, where the landlord entered for nonpayment of rent, and terminated a lease which gave the tenant the right to remove improvements at the end of the term, whereupon the tenant brought an action for their value, it was held that a court of equity will not interfere for the purpose of exposing a party to an action for damages. If any relief shall be granted it will be one for extending the time for removal of the improvements. After forfeiture and re-entry for breach of covenant to pay taxes, equity will grant no relief. Baldwin v. Rees, 6 Ohio Dec. Reprint, 869. The court, says nonpayment of taxes is not like nonpayment of rent, it puts in jeopardy the estate of the lessor, and equity does not relieve against a forfeiture effected for such a breach. In Wilmington Star Min. Co. v. Allen, 95 Ill. 288, the court refused to protect the lessee of a mine from forfeiture for breach of his contract to continue mining operations, without discussing the principles upon which courts of But in that case equity proceed in such cases. it appeared that the lessee had abandoned the lease and surrendered possession, while the lessor had re-entered and released the property; and the court says that, after such conduct, it would be highly inequitable to retract what In my judgment it is not party in the exclusive possession of land after the breach of condition subsequent, and then filing a bill in equity to quiet the title and protect such possession. To my mind the trial court properly relegated the plaintiff to her remedy at law. diction of a case for the purpose of aiding | 34 N. W. 92. was a virtual surrender of the lease, and there Equity will not entertain a bill to relieve from a forfeiture of a leasehold for nonpayment of rents where the right to declare it was reserved in the lease, and the power so reserved has been properly exercised. But where the lessor has neglected to declare a forfeiture until long after the rent became due pending negotiations for a change in the contract, he will not be permitted to declare the forfeiture without giving notice to the lessee. Palmer v. Ford, 70 I. 369. But equity may relieve where the forfeiture is illegally enforced, as where it is enforced against an infant. Litton's Case, Cary, 6. And the jurisdiction to grant relief to the tenant who has forfeited his lease for nonpayment of rent extends to cases where the lessor has obtained peaceable possession of the property without the aid of the court. Howard v. Fanshawe [1895] 2 Ch. 589. IX. Statutory forfeiture. If the forfeiture is declared by statute, equity has not jurisdiction to afford relief from it. Where a forfeiture is imposed by statute for failure to comply with the condition of a public grant, equity cannot relieve against it. Woodson v. Skinner, 22 Mo. 13; Huth v. Carondelet, 26 Mo. 466; Taylor v. Carondelet, 22 Mo. 105. Equity has no power to avoid the provisions of a statute limiting a lessee to six months in which to regain possession after he has been dispossessed for breach of condition. Gorman v. Low, 2 Edw. Ch. 324. But where a statute provides for the lease of government land by an instrument which shall contain the usual covenant for payment of rent, and a condition for re-entry on nonpayment thereof, equity will regard the clause as subject to the ordinary rule that equity will relieve from a forfeiture for noncompliance therewith. Atty. Gen. v. Ettershank, L. R. 6 P. C. 354. The forfeiture of a lease by a municipal corporation under authority of the legislature for nonpayment of rent cannot be relieved against. Carondelet v. Wolfert, 39 Mo. 305. X. Statutory jurisdiction. As has already been stated supra, III., b, 5. as soon as the English House of Lords refused to grant relief in cases of failure promptly to renew leases a statute was passed providing for such relief. Other statutes have been passed regulating the relief of tenants, and the powers of the court in such cases are very largely controlled by the provisions of the statutes. By statute, in New York, equity is given jurisdiction of a suit to avoid a forfeiture for nonpayment of rent. Horton v. New York C. & H. R. R. Co. 12 Abb. N. C. 30, Affirmed in 102 N. Y. 697. The Irish act of 19 & 20 Geo. III. provided that equity, upon adequate compensation being made, shall relieve tenants against lapse of time for payment of rent if no circumstances of fraud be proved, unless it shall appear that after a demand made the tenant refused or neglected to renew within a reasonable time after such demand. Therefore the court will relieve from a forfeiture for delay in payment of rent or renewal of the lease where the delay is satisfactorily accounted for. Jessop v. King, 2 Ball & B. 81. Equity will not interpose to relieve from a forfeiture under a statute providing that, upon failure to make payments for public land at the time specified in the contract, all right of the purchaser shall cease. Where the expression Under the Irish tenantry acts, the right of of the legislative will is clear and explicit, equity to relieve was limited to cases of mere equity cannot defeat its operation on the ground negligence. Jackson v. Saunders, 2 Dow, P. C. that it is harsh and severe. Smith v. Mariner, | 442. 5 Wis. 551, 68. Am. Dec. 73. In Keating v. Sparrow, 1 Ball & B. 373, where a tenant had incurred a forfeiture under the statute for failure to pay a renewal fine at the time specified, the court says that the principle that equity will relieve against forfeitures when compensation can be made is applicable to cases of contract between the parties, but not to the provisions of an act of Parliament or conditions in law. The true ground of relief against penalties is when, from the original intent of the case, the penalty is designed only to secure the money. Keating v. Sparrow was recognized in Re Brain, L. R. 18 Eq. 389, which involved the forfeiture of a lease of a government mine; but the court refused the relief in that case because the time in which, in analogy to the statute governing the rights between landlord and tenant, it might have been granted, had passed. Under-tenants are entitled to relief under the Irish acts. Berney v. Moore, 2 Ridgw. P. C. 310. Under a statute providing that, upon neglect to renew a lease at the time specified, courts of equity, upon adequate compensation being made, shall relieve the tenant against lapse of time if no circumstances of fraud be proved against him, unless it be proved that the landlord had demanded the payment of the fine and the same had been refused or neglected to be paid within a specified time, renewal will not be decreed in equity where the tenant refuses, for a number of years after demand, to comply with it; and inability to comply is no Mountnorris v. White, 2 Dow, P. excuse. C. 459. In Doe er dem. Hitchings v. Lewis, 1 Burr. 619, it is stated that the purpose of the act of 4 Geo. II., chap. 28, was to require the tenant to take his proceedings to secure relief from MASSACHUSETTS SUPREME JUDICIAL COURT. Albert L. GORDON, Appt., v. Alice G. RICHARDSON. (185 Mass. 492.) 1. A tenant cannot be relieved from forfeiture of his term because of breach of his covenant to pay taxes after the premises have been sold because of his default, since he can no longer perform his covenant, or make compensation for the breach, so as to entitle himself to equitable relief. 2. That there is evidence in the record that a tenant permitted the premises to be sold for taxes in violation of his covenant through mistake does not require a reversal of a judgment dismissing his bill for equitable relief from a forfeiture claimed on that ground, where there is no statement of facts found, or of rulings made; since it cannot be held to have been error to refuse to give credence to such evidence. 3. One filing a bill for relief from a forfeiture, at law, of a lease, will not be which reserved a right of entry for breach of covenant, and provided that "thereupon the lessor may, at discretion, relet the premises, or any part thereof, at the risk of the lessee, who shall remain for the residue of the terin responsible for the rent, taxes, and water rates herein reserved, and shall be credited with such sums, only, as shall be by the lessor actually realized." Plaintiff sublet the premises, permitted some taxes to become in arrear, and defendant entered for breach of covenant, and made a new contract with the sublessee. Further facts appear in the opinion. Mr. Charles R. Darling, for appellant: Under the provision of the lease, the plaintiff is to continue to pay rent, eo nomine, and, as one who pays rent is a tenant, the attempt is to retain him as a tenant while denying him the tenant's right to possession of the premises. Accepting a sum of money as rent eo heard to contend that the entry of the land- nomine, after an alleged forfeiture, operates as a waiver of the forfeiture, although the landlord may protest that he does not waive it. lord was invalid because there was no forfeiture. A (May 17, 1904.) PPEAL by plaintiff from a judgment of the Superior Court for Suffolk County in favor of defendant in an action brought to secure relief from an attempted forfeiture of a lease. Affirmed. Plaintiff had taken a lease of property on Winter street, Boston, under an instrument a forfeiture within a specified time, or be barred from all relief. Under the statute 4 Geo. II., relief can be given the tenant only in case the breach is for nonpayment of rent. Wadman v. Calcraft, 10 Ves. Jr. 67. Under the English act of 4 Geo. II., it is not necessary that the arrears of rent be brought into court to entitle the lessee to relief. Bowser v. Colby, 1 Hare, 109. The English statute of 22 & 23 Vict., chap. 35, provides for relief from forfeiture for failure to insure, and applies to contracts made before as well as after its passage. Page v. Bennett, 6 Jur. N. S. 419. And so the provisions of the act of 44 & 45 Vict., chap. 41, for the relief of the tenant, were held to extend to breaches committed before the enactment of that statute, and to proceedings pending when they came into operation. Quilter v. Mapleson, L. R. 9 Q. B. Div. 672. In Croft v. London & C. Banking Co. L. R. 14 Q. B. Div. 347, Cotton, L. J., says that the terms imposed by the statute governing the rights of tenants as to payment of rent and costs are conditions imposed by the act, without compliance with which the injunction to restrain ejectment for nonpayment of rent could not be granted by the court. Croft v. Lumley, 5 El. & Bl. 648; Davenport v. Queen, L. R. 3 App. Cas. 115; Smith v. McEnany, 170 Mass. 26, 64 Am. St. Rep. 272, 48 N. E. 871. If the defendant had a right of re-entry under the lease, he parted with it by the lease to Bailey, since he thereby parted with the reversion, and the right of re-entry attends the reversion. The statute in England authorizes relief from forfeiture for nonpayment of rent and failure to insure in proper cases. Bamford v. Creasy, 3 Giff. 675. In Swanton v. Biggs, Beaty, 170, the court says it was the object of the statute to give an evicted tenant a remedy for fraud,-reinstatement in case he paid his arrears of rent within a specified time; and that the court could not take into consideration breaches of other conditions in the lease for the purpose of defeating that remedy. Failure to give the notice required by the act of 1881 is ground for relief in equity. North London Freehold Land & House Co. v. Jaques, 49 L. T. N. S. 659. [1883] W. N. 187. Under the statute, when a demand is made the neglect to pay when it goes beyond what is a reasonable time for payment. ceases to be mere neglect, and becomes wilful. Barrett v. Burke, 5 Dow, 1. Under the Canadian statute (Ont. Rev. Stat. chap. 143, § 22) providing that, if the lessee obtain equitable relief he shall hold and enjoy etc.. he is not entitled to relief from forfeiture for nonpayment of rent as matter of right without regard to the collateral equities. Coventry v. McLean, 21 Ont. App. Rep. 176. H. P. F. Dumpor's Case, 4 Coke, 119; Wright v. out fault, to become again a subtenant of the Burroughes, 3 C. B. 685. petitioner. The court, therefore, will not interfere. Conditions in leases are intended as security, and are enforceable only for that purpose. Where compensation can be made for the breach, that is all that can be demanded. 2 Story, Eq. Jur. 13th ed. §§ 1314-1316; 2 Platt, Leases, pp. 475, 479, 482; 2 Taylor, Land. & T. 8th ed. §§ 495, 496; Tiedeman, Eq. Jur. § 35; Mactier v. Osborn, 146 Mass. 399, 4 Am. St. Rep. 323, 15 N .E. 641; Lundin v. Schaffel, 167 Mass. 465, 45 N. E. 933. Breach of covenant to pay taxes comes within the rule. Lundin v. Schoffel, 167 Mass. 465, 45 N. E. 933; Giles v. Austin, 62 N. Y. 486; Hagar v. Buck, 44 Vt. 285, 8 Am. Rep. 368. For most purposes, a tax sale is considered to create an encumbrance rather than to devest the title, so long as the right of redemption remains. Kerr, Fraud & Mistake, 436; Giles v. Austin, 62 N. Y. 486. Loring, J., delivered the opinion of the court: The ground on which a tenant gets relief in equity from the forfeiture of his estate for a failure to pay rent is that in equity the landlord's right of re-entry is given as security for the payment of the rent, and on the rent being paid the very thing is done for which the security was given; and, although the payment in that case is made after it is due, on interest being paid compensation is made for the delay in performance, and on compensation being made the plaintiff is entitled to relief. Peachy v. Somerset, 1 Strange, 447; Hill v. Barclay, 16 Stuart v. Reliance Ins. Co. 179 Mass. 434, Ves. Jr. 402, and 18 Ves. Jr. 56; Reynolds 60 N. E. 929. Indulgence by the landlord may prevent him from taking advantage of delay in payment by the tenant. Thropp v. Field, 26 N. J. Eq. 82; Horton v. New York C. & H. R. R. Co. 12 Abb. N. C. 30. It is no objection to the maintenance of this bill that the overdue rent and taxes were not paid before bringing the bill. This is not required when the landlord is in possession, as here, and no injunction is granted against him pending suit. 2 Platt, Leases, p. 479; Bowser v. Colby. 1 Hare, 109; Atkins v. Chilson, 11 Met. 112; Thomas v. Beals, 154 Mass. 51, 27 N. E. 1004. The alienation to Bailey by the lease given to him by the defendant does not affect the plaintiff's right to relief; Bailey takes subject to all the equities of the plaintiff. Abrams v. Watson, 59 Ala. 524. Mr. Harvey N. Shepard, for respondent: The provision, in the indenture, for forfeiture on nonpayment of rent and taxes, is good in law, and enforceable. Brand v. Frumveller, 32 Mich. 215; Allen v. Dent, 4 Lea, 676; Morrill v. De la Granja, 99 Mass. 383. In this cause there is no accident or mistake for the petitioner to plead; but, on the contrary, his neglect was deliberate and wilful, and in the face of repeated warnings. His petition is without equity. Barnet v. Passumpsic Turnp. Co. 15 Vt. 757; Gregory v. Wilson, 9 Hare, 683; Hill v. Barclay, 18 Ves. Jr. 56. The petitioner cannot be restored, as prayed by his bill of complaint, without in jury to Byron E. Bailey; and it would be a hardship to compel Mr. Bailey, who is with v. Pitt, 19 Ves. Jr. 134; Howard v. Fanshawe [1895]2 Ch. 589. The Massachusetts cases are Atkins v. Chilson, 11 Met. 112: Sanborn v. Woodman, 5 Cush. 36. See also, in this connection, Stone v. Ellis, 9 Cush. 95; Hancock v. Carlton, 6 Gray, 39, explained in Mactier v. Osborn, 146 Mass. 399, 402, 4 Am. St. Rep. 323, 15 N. E. 641. But that does not cover the case before us. In this case the defendant entered for breach of the covenant to pay taxes, as well as for breach of the covenant to pay rent. When he exercised his right of re-entry in September, 1902, not only was the tax for 1900 not paid, but the estate of the defendant had been sold because of the plaintiff's failure to pay this tax as he had covenanted to do. The defendant's estate had been sold to pay this tax in the June preceding the September when the defendant entered on the estate. The thing here in question secured by the right of re-entry not only has not been performed, but it cannot be performed now. The tax for 1900 has been paid, and no longer can be paid by the plaintiff. The tax was paid to the collector by the application thereto of the proceeds of the tax sale. There is a right to redeem this tax title, but the tax has been paid, and the thing secured by the landlord's right of re-entry can no longer be performed by the tenant. By the very terms of the covenant secured by the forfeiture, any performance of it is at an end, and that is the end of the plaintiff's application for relief from the forfeiture in the case at bar. Moreover, if it were permissible to look behind the terms of the covenant here in question to what might be termed its true nature and substance, the plaintiff would gain nothing. If you look beyond its terms, the real substance and nature of a covenant to pay taxes assessed on the demised prem- for breach of a covenant to pay rent, the ises is to protect and hold harmless the land-relief is given at common law. Howard v. lord's estate. When the breach of the cov- Fanshawe [1895] 2 Ch. 589; Stanhope v. enant has reached the stage where the land- Haworth, 3 Times, L. R. 34. As to the purlord's estate has been sold to pay the taxes pose of Stat. 4 Geo. II. chap. 28, see Lord which the tenant should have paid, and Mansfield in Doe ex dem. Hitchings v. through the default of the tenant a para- Lewis, 1 Burr. 614, 619, and Wigram, V. mount outstanding title has come into ex- C., in Bowser v. Colby, 1 Hare, 109, 125. istence, we have a breach of covenant for From what has been said it is apparent which the plaintiff fails to show that com- that we are not prepared to go so far as the pensation can be made. It is like the court of appeals went in its opinion in breach of a covenant to insure or repair, Giles v. Austin, 62 N. Y. 486, 493. The facts where equity does not ordinarily grant re- in that case are stated in 6 Jones & S. 215, lief against forfeiture of the tenant's estate. and it appears that the failure to pay the Mactier v. Osborn, 146 Mass. 399, 402, 4 taxes in that case was in fact through acciAm. St. Rep. 323, 15 N. E. 641. Hill v. dent and mistake, although that was not reBarclay, 16 Ves. Jr. 402, and 18 Ves. Jr. 56 | lied on in the opinion of the court. (overruling Lord Erskine's opinion in San- There is, however, jurisdiction to relieve ders v. Pope, 12 Ves. Jr. 282, which never against a forfeiture for breach of collateral went to decree, page 294); Reynolds v. Pitt, covenants, if the breach came through acci19 Ves. Jr. 134; Bracebridge v. Buckley, 2 dent or mistake. This was established in Price, 200; Green v. Bridges, 4 Sim. 96. this commonwealth in Mactier v. Osborn, Lord Erskine's opinion in Sanders v. Pope | 146 Mass. 399, 4 Am. St. Rep. 323, 15 N. E. was in effect that the forfeiture of a lease- 641, following the suggestion of Lord Eldon hold estate for breach of a collateral covenant stood on the same ground at common law as that on which the forfeiture of a bond stands under Stat. 8 & 9 Wm. III., chap. 11, § 8, which (as Baron Parke said in Beckham v. Drake, 2 H. L. Cas. 579, 629) "in effect makes the bond a security only for the damages really sustained." But that view did not prevail. It is settled that in case of waste (Peachy v. Somerset, 1 Strange, 447), in case of a breach of a covenant to make repairs (Hill v. Barclay, 16 Ves. Jr. 402, and 18 Ves. Jr. 56;Bracebridge v. Buckley, 2 Price, 200), and in case of the breach of a covenant to insure (Reynolds v. Pitt, 19 Ves. Jr. 134; Green v. Bridges, 4 Sim. 96), it being impossible for the tenant to show affirmatively that compensation can be made, relief ordinarily will not be given. It was this which C. Allen, J., had in mind in Lundin v. Schoffel, 167 Mass. 465, 469, 45 N. E. 933, when he said of the case then before the court that it "was not like a case where the omission caused a present injury or increase of risk to the lessors, as in the case of waste, nonrepair, or noninsurance." The lack of recent cases in England is owing to the fact that relief is given by statute in case of covenants other than the covenant to pay rent. Stat. 22 & 23 Viet. chap. 35, § 4, authorized relief in case of the breach of a covenant to insure, and Stat. 44 & 45 Vict. chap. 41, § 14, in case of all other covenants except the covenant to pay rent (see clause 8 of 14), in which case a bill must be brought within six months from the execution putting the landlord in possession, by force of Stat. 4 Geo. II. chap. 28. It is settled that, if a bill is brought within the time allowed for relief against a forfeiture in Hill v. Barclay, 18 Ves. Jr. 56, 62, Affirmed in Bamford v. Creasy, 3 Giff. 675, 680, and Bargent v. Thomson, 4 Giff. 473. If it be assumed in favor of the plaintiff that he could have relief here on proving that it was through an accident or a mistake on his part that the nonpayment of the 1900 taxes went to a sale, yet the decree in the case at bar must be affirmed. The case comes here by appeal from a decree dismissing the bill. The evidence is before us, but there is no statement of facts found, or of rulings made. The decree, so far as it involves matters of fact, is to stand, unless it appears by the evidence to be clearly erroneous. Brown v. Brown, 174 Mass. 197, 75 Am. St. Rep. 303, 54 N. E. 532; Dickin son v. Todd, 172 Mass. 184, 51 N. E. 976: S. K. Edwards Hall Co v. Dresser, 168 Mass. 136, 46 N. E. 420; Lundin v. Schaffel, 167 Mass. 465, 45 N. E. 933. See also Blossom v. Negus, 182 Mass. 515, 65 N. E. 846. It is enough that the presiding judge who saw the plaintiff on the stand may not have given credit to the excuse which he made, namely, that the sale for the 1900 tax was made earlier than usual. We have not considered the plaintiff's argument that there was no forfeiture of the lease. We are of opinion that, in a bill in equity to be relieved from a forfeiture at law, it is not open to him to make the contention that there is no forfeiture at law. Such a case comes within Pitkin v. Springficid, 112 Mass. 509, in which it was held that, in a petition for compensation for land taken, it was not open to contend that the statute providing for the taking was unconstitutional, or that the taking was invalid. |