Clauses against the assignment of land contracts will be strictly construed and subletting the premises does not constitute such an assignment. Joy v. Stevenson, 128 Pac. 751; Am. & Eng. Enc. Law, 2d Ed., p. 659-680.

FORFEITURE WHEN SUSTAINED

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If the vendor has been guilty of any breaches of the contract a forfeiture thereof will not be sustained, as he who commits the first substantial breach of the contract is thereby estopped from enforcing the contract, if the other party thereto desires to rely on such breach.14

None of the Michigan decisions decide the question squarely as to what the courts will do with the nonassignment clause of a land contract where there is no question of waiver, oral consent or estoppel involved in the assignment, and in other states there is a decided conflict in the authorities, some courts holding such clauses void as against public policy because of being a restraint on the alienation of real property.15 Others

14. Jones v. Berkey, 181 Mich. 476.

Clauses Against Assignment Held Void as Against Public Policy.

15. Griggs v. Landis, 21 N. J. E. O. 495. This was a bill for specific performance filed by an assignee of the vendee, to compel the conveyance of property sold under a land contract, which contained a covenant providing that the vendee should not have the right to assign the contract before certain improvements were installed in the premises which the vendee had contracted to install. The vendee assigned such contract before all the improvements were completed but his assignee completed same, but not strictly within the time prescribed in the contract. Held: Clause against nonassignment of the contract void as against public policy.

Said the court further in Griggs v. Landis: "But I apprehend such collateral covenant will never be thus enforced, where it appears upon the face of the contract that the prohibition to assign is not the main purpose of the covenant, but a mere incident to and security for such purpose. It is the province of a court of equity to ascertain what is, in truth, the real intention of the parties, and to carry that into effect," and again, "That the restriction is in the nature of a mere security for the performance of the principal covenants, and such relief may be given by a court of equity as shall appear to be equitable under the circumstances of each particular case," and again, the court goes a step further in what is indirectly a repudiation of such a restriction, when it says: "Penalties, forfeitures and re-entries for conditions broken are not favored in equity, and constitute a large branch of equitable relief. Usually, they are held to be securities for the payment of money, and the perform ance of conditions, and where compensations can be made for non-payment and nonperformance, equity will relieve against the rigid enforcement of the contract. This is upon the general principle that a court of equity is a court of conscience, and will permit nothing to be done within its jurisdiction which is unconscionable."

Johnson v. Eklund, 72 Minn. 195, court said: There is nothing personal in the nature of the contract. All that the vendor was interested in was the payment of the purchase money at maturity. If he received this, it was wholly immaterial to him who paid the money or who got the land. ' At most this stipulation against an assignment is merely collateral to the main purpose of the contract designed as a means of securing and enforcing performance of what was undertaken by the vendee, to-wit, the prompt payment of the purchase money. When the vendor has received all his purchase money, he has received all that he is entitled to, and all that the provision against an assignment was intended to secure.

A transfer made in due course of the administration of the estate of the vendee to raise money to pay the expenses of administration is not a violation of a provision prohibiting assignment without the consent of the vendor. Avile v. Pereira, 120 Cal. 589, 52 Pac. 840.

Cheney v. Bilby, 74 Fed. 52. The court said: "This provision of the contract was obviously intended to prevent the assignment of the same, while it was executory to persons who might not be able or well disposed to faithfully execute it. It was a provision which was inserted in the agreement to enable Cheney, the vendor, to control the selection of an assignee thereof, so long as the agreement remained in part unperformed, or so long as he was interested in the choice of an assignee who had the requisite means and ability to do what remained to be done. Inasmuch, then, as the provision in question was only intended to secure the faithful performance of the agreement by the purchaser or his assignee, it would be both unreasonable and inequitable to hold that Cheney, the vendor, is privileged to take advantage of the provision, to avoid performance on his part, after the entire amount of the purchase money has been promptly paid or tendered. We must assume whatever may be the fact in this regard, that the provision against assigning the contract without the vendor's consent was inserted therein for an honest and legitimate purpose; that is to say, for the purpose of securing the punctual payment of the purchase money, and a full compliance with other executory agreements, either by the original purchaser or by his assignee. Therefore, when it appears that that object has been accomplished, that the purchase money has been promptly paid or tendered, nothing remained to be done but to execute a deed to the purchaser, the vendor cannot be heard to allege as an excuse for not making a conveyance, that at a certain time the purchaser of the land assigned the contract of purchase without his consent. It would be trifling with justice to tolerate a defense of that character after the purchaser's engagements have each been performed in the time and manner stipulated in the contract of sale." Some of the cases, however, not only recognize the validity of the stipulation but insist on a literal enforcement thereof and hold that an assignee of the vendee, in the absence of acts or circumstances, holding and perhaps by the weight of authority that such a clause is valid on the theory the parties have the right to enter into such a contract if they so desire.16 constituting an estoppel or waiver, acquires no rights which he can enforce against the vendor. Hunter Tract Imp. Co. v. Stone, 58 Wash. 661.