Steele et al. v. Biggs et al.

the whole of the payments will become due. All I can say is, I have taken measures to declare the lots forfeited for non-payment, in accordance with the notes.

"Dear Sir:-Your favor of the 9th instant, was duly received, but owing to circumstances out of my control, I have been prevented from answering you as I desired, until the present. I have been unable until to-day, to see Mr. Biggs, who is to make you the next payment, and he informs me that he intends to do so by the time it is due; he has the money I know, and I think you may depend on it. I do not understand how it happened that the property was sold for taxes, as Messrs. Rees & Kerfoot promised me to pay the taxes, and they having sold a lot in the West, and had funds, I supposed it was done; indeed, they sent or drew on me for a tax bill, which was paid, for the year 1853. Whether it was all the taxes, or not, I cannot say, but if not, it should have been, and they should have paid it; and now I wish you would call on them, and make the inquiry, and get them to attend to the settling of the taxes, with the person who bought them, and they can satisfy themselves out of the payment or money which they will receive for the lot which they sold. Please get them to write me the amount of taxes on each lot, and how much they will have to pay. Yours truly, G. McCULLOUGH." "CINCINNATI, March 8th, 1855.

"MR. O. LUNT:

"Dear Sir :-I received a notice of a note due you, falling due at the Banking House of Geo. Smith & Co., Chicago, on the 10th proximo. I have the funds to meet it, but there are some judgments against the property, favor of some of McCullough, Morris & Co.'s, and I want them to agree to return the money if they gain the suit. The arrangement is not entirely complete, but I think will be in ten days; then I will send you the money.

"Yours truly,

T. R. BIGGS,

Assignee for Morris, McCullough & Co." "P. S. I regret the delay very much, and will send the money as soon as the contract is signed. T. R. B." "CHICAGO, March 29th, '55.

"ORRINGTON LUNT, ESQ.:

"Dear Sir:-I have written to Thomas R. Biggs, the assignee of McCullough, Morris & Company, requesting him to give immediate attention to the payment of the installment now due on the articles of agreement assigned by them, and shall hear from them in a few days. He will doubtless meet the payment at once. JOHN WOODBRIDGE, JR."

"" Yours, etc.,

Defendants also read the following letter:

"THOMAS R. BIGGS, ESQ.:

"CHICAGO, March 28th, 1855.

"Dear Sir:-I wrote you in the winter, asking if the payments on the McCullough lots would be promptly met, and understood from McC. they would be, and I relied on them, having a large amount to pay. On the 8th you wrote, saying it would be delayed ten days, the cause of which I could not see, but could as well

Steele et al. v. Biggs et al.

have been arranged before as after the 10th. Twice the length of time you named has passed, and I hear nothing from you. Had I not been advised it would come, I would have made different arrangements, and not have to have my note laying over in the bank, very much to my inconvenience. By the delay, the whole of the payment will become due. All I can say is, I have taken measures to declare the lots forfeited for non-payment, in accordance with the notes.

There was a decree for a specific performance, according to the prayer of the bill.

SCATES, MCALLISTER & JEWETT, for Appellants.

WILLIAMS, WOODBRIDGE & GRANT, for Appellees.

BREESE, J. There are but two questions we consider very material in this case. The first is, was time of payment of the essence of this agreement; and the other is, did the defendant, or any authorized person for him, make a legal tender of the payment in money, as required by the terms of the agreement.

The appellee denies that time was of the essence of this contract. To determine it, we must look to the agreement and its several clauses relating to this point. The clauses provide as follows:

"It is mutually covenanted and agreed between the parties 'hereto, that in case default is made in any of the payments of principal or interest at the times above specified, for payment thereof, and for sixty days thereafter, this agreement, and the provisions thereof, shall be null and void, at the option of said Lunt, his representatives or assigns, and all the payments which shall then have been made hereon, or in pursuance hereof, absolutely and forever forfeited to said Lunt, or, at the election of said Lunt, his representatives or assigns, the covenants and liability of said McCullough, shall remain obligatory upon said McCullough, and may be enforced, and the said money, with the interest, be collected by proper proceedings at law or equity, from said McCullough, his executors, administrators or assigns.

"It is further mutually covenanted by the parties that in case of default in the payments aforesaid, by said McCullough, or any part thereof, and the election of said Lunt, his representatives or assigns, to consider the contract at an end, and prior payments forfeited, the said McCullough, his heirs, representatives or assigns, who may have possession, or the right of possession of said premises at the time, shall be considered the tenant or tenants at will of said Lunt, his representatives or assigns, on a rent equal to ten per cent. per annum, on the whole purchase money above specified, payable quarterly from day of default.

Steele et al. v. Biggs et al.

"And after such default, and election to consider the contract at an end, the said Lunt, his representatives or assigns, shall have all the powers and remedies provided by law or equity, to collect such rents, or to remove such tenants, the same as if the relation of landlord and tenant, hereby declared, were created by an original, absolute lease, for that sole purpose, on a specified rent, payable quarterly on a tenure at will," etc.

These being the terms of the contract of the parties, it would be difficult, we think, to make more clear and explicit the intent of these parties to make time essential.

The case of Bishop v. Newton, 20 Ill. R. 180, to which the appellee has referred, in which similar provisions to these were contained in that contract then before us, does not hold, nor was it intended to hold that they do not make time material. Time was there made material by the clause declaring that "if said Bishop fails to make payment within fifteen days after the first day of January, 1856, he forfeits what he has paid, and all rights under this bond." But there was in that agreement, a precedent or concurrent condition to be performed by the vendor, in relieving the premises of an incumbrance, and which he had failed to perform, or to show any readiness to perform on his part, and for this default, the court refused to decree a forfeiture.

We have always held, that the doctrine of equity, is compensasation, not forfeiture, (Morgan et al. v. Herrick, 21 Ill. R. 497,) and in passing upon the facts and circumstances in each and every case, when the powers of this court are invoked for the enforcement of such strict legal rights, it will never disregard such facts and circumstances as excuse a strict performance at the day, to mitigate the rigor of a forfeiture, or absolve from it altogether. There may be undoubtedly, in many cases, such circumstances as should restrain the vendor from the strict enforcement of a contract; and as will entitle the purchaser to a specific performance, although he may have failed of a strict compliance at the day. Numerous cases of this kind can be found in the books. In this point of view, part performance will have, accompanied by other circumstances, great weight, as when the vendor is himself in default in some important matter; or when he has accepted part payment after the expiration of the time fixed for full payment. Such we understand to be the general principles recognized in the case of Brashier v. Gratz et al., 6 Wheaton, 528, cited and approved in Bishop v. Newton, and such is the case of Murphy v. Lockwood, 21 Ill. R. 611. But neither of these cases establish the principle that part performance, or a payment of a considerable part of the purchase money, will excuse the

Steele et al. v. Biggs et al.

purchaser from a strict compliance with his agreement if it be insisted upon.

We believe the general and approved rule on the subject of specific performance to be, that the parties may make the time of performance material in relation to each and every successive act to be done, if there be a series of such acts, and when parties do so, courts of equity will not relieve the party in default without a just excuse for, or acquiescence in a breach, or a waiver of the breach. Tyler v. Young et al., 2 Scam. R. 446; Smith v. Brown, 5 Gilm. R. 314; Glover v. Fisher, 11 Ill. R. 673; Kemp v. Humphreys, 13 Ill. R. 577; Wynkoop v. Cowing, 21 Ill. R. 570.

The case of Smith v. Brown, 5 Gilm. R. 314, was a case of part performance, by payment of a considerable portion of the purchase money, yet the court placed no particular stress upon that, holding it was not a sufficient excuse for subsequent default in complying strictly with the true intention of the parties. The cases of Bishop v. Newton, 20 Ill. R. 178, and Morgan v. Herrick, 21 ib. 495, recognize the same leading principle.

The appellee, however, insists that the covenant to pay the third installment on the day, was broken before the sale and assignment by Lunt to Steele, and therefore, upon a breach, it became a personal covenant, and could not run with the land, or be transferred by an assignment of the contract.

This is true perhaps, of real covenants, but this is not of that character; it is a contract or covenant for the payment of money, and of a character, such as in equity, are assignable. The covenants on the part of McCullough, were merely money covenants and assignable as such. Whether or not, the conditional power of forfeiture at the option of the vendor, upon failure of punctual payments, was assignable before or after a breach of the condition, as a general principle of law, we do not discuss or decide, believing it to be unnecessary in this case. The contract discussed, extends to the vendor, Lunt, and "his representatives or assigns," either of whom, by the agreement itself, might exercise and declare "the option " and "consider the contract at an end, and prior payments forfeited," and he and his representatives or assigns" were "to have all the powers and remedies provided by law or equity," for the enforcement of the vendor's rights and remedies. It is not therefore, in our judgment, a question of the legal assignability of the agreement, or of suing upon it, but a plain matter of agreement with the representatives or assigns, which empowered them to act under We do not conceive it material how the rights of the "assigns" arose in this case, whether by the conveyance of the land to Steele, or the assignment of the money covenant, for

it.

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both modes of transfer were adopted, and Steele became such assigns," in the true sense of the agreement, and as such he was entitled, by the express language of the agreement, to exercise and declare the "option" or to receive the money, if the appellee had not forfeited his right to pay it. But Lunt himself made his option, and rescinded the contract so far as he was authorized to do, as vendor, by the very act of conveying the land to Steele, and Steele did the same, by refusing the money. Therefore it follows, if on such default the vendor or his "assigns" made the election to forfeit, the contract then became absolutely null, as a contract to convey, and thenceforward stood merely as a lease, according to its express provisions. Dominick v. Michael, 4 Sandford, 426; Glover v. Fisher, 11 Ill. R. 673; Harrington v. Wheeler, 4 Vesey, Jr., 689, note 2, giving the decision in Lloyd v. Collet, 4 Bro. C. C. 469.

A forfeiture may be proved by a notice from the vendor to the vendee, that he will require a strict performance at the time fixed, provided the notice be a reasonable one, under all the circumstances. 1 Sug. on Vendors, 360; Adams' Equity, 225; Miller v. Chrisman, 21 Ill. R. 227.

There is also a class of cases where time is in equity deemed to be material and a punctual performance required, though not so specified in the contract. They are adverted to by Baron Alderson in Hipwell v. Knight, 1 Younge and Collin Ex. 415. He illustrates this class by some examples, as, "If the thing sold be of greater or less value according to the effluxion of time, it is manifest that time is of the essence of the contract, and a stipulation as to time, must then be literally complied with in equity as well as at law." "The cases of the sale of stocks, and of a reversion are instances of this. So also if it appears that the object of one party known to the other, was that the property should be conveyed on or before a given period, as the case of a house for a residence or the like." "I do not see, therefore, if the parties choose, even arbitrarily, provided both of them intend so to do, to stipulate for a particular thing to be done at a particular time, such a stipulation is not to be carried literally into effect in a court of equity. This is the real contract. The parties had a right to make it. Why then should a court of equity interfere to make a new contract which the parties have not made nor consented to? It seems to me, therefore, that the conclusion at which Sir Edward Sugden, in his valuable treatise on this subject, has arrived, is founded in law and good sense."

In 1 Sugden on Vendors, 359, will be found a summing up of all the authorities to this effect. Judge Story reaches the same conclusion that Baron Alderson does. 2 Story Equity Juris. § 776, note. Many other American and English authorities