"That equity courts have jurisdiction to relieve from forfeitures, direct accounting and grant specific performance where equitable grounds to those ends are properly charged, and satisfactorily proven, is textbook law, and not open to question."

In the case of Lozon v. McKay, 203 Mich. 364, the court treated a bill for specific performance as being in effect a bill seeking relief from forfeiture, and granted relief although the vendee had paid only one installment of interest, had paid no taxes for several years, and had never tendered or offered to pay the sums called for by the contract, and although, as the court states: "It is apparently as uncertain now as it has been for years whether the plaintiff can pay what is due to the defendant. It ought to have been tendered before suit was begun, in which case it is likely that no suit would have been necessary."

The power of the court to remit to plaintiff the amount which he paid upon his contract falls under the head of the power to relieve from forfeiture, since, under the equities presented in any particular case, it might be unconscionable to permit the seller to recover back the property sold, and retain, in addition to it, substantial payments made upon it by the vendee.

This falls under equity jurisdiction, and, as stated in Gregar v. Olde, supra, "is textbook law, and not open to question."

Such relief is not without precedent in this state. In the case of Biddle v. Biddle, 202 Mich. 160, the court decreed a return to the vendee of the sum of fifteen thousand ($15,000) dollars which he had paid to the vendor. The contract in question was virtually the same as the one in the case at bar. The court was of the opinion that under all the facts in the case, to permit the vendor to retain the payment would be in effect to enforce a penalty against the vendee.

MOORE v. PROVOST, et al., 205 Mich. 687-

(a) Brief Statement of Fact.

(b) Bill of Complaint.

(c) Answer of Defendants Herman Meier, et al.

(d) Answer of Defendants T. J. Provost, et al.

(e) Answer of Defendants W. Miles, et al.

(f) Answer of Defendants F. E. Tower, et al.

(g) Decree.

(h) Authorities Cited by Plaintiff. Brief for Plaintiff.

(i) Authorities Cited by Defendants. Brief for Defendants.

MOORE v. PROVOST, et al., 205 Mich. 687.

(a) Brief Statement of Fact.

A bill of complaint was filed to quiet the title to certain land and water rights and rights of flowage. A decree was entered quieting the title of plaintiff and awarding plaintiff the right to maintain certain head of water. The plaintiff appealed and the decree was modified.

(b) Bill of Complaint.

State of Michigan, in the Circuit Court for the County of Shiawassee, in Chancery.

J. MARTIN MOORE, }

Plaintiff, v. T. J. PROVOST, HERMAN MEIER, et al.

Defendants.

To the Circuit Court for the County of Shiawassee, in Chancery: Your orator, J. Martin Moore, of the Village of Byron, in said county and state, respectfully represents unto this Honorable Court:

1. That upon, to-wit, the 21st day of June, 1836, Samuel W. Dexter was the owner of the following described real estate, situated in the Township of Burns and in the Village of Byron, Shiawassee County, Michigan, and more particularly described as follows, to-wit:

(Here property was correctly described.)

2. That about this time a grist mill was located upon said premises and a portion of said land was used in the regular business of conducting said mill, and the remaining portion thereof was used for the purpose of water power rights; the maintenance of a dam across the Shiawassee River and the consequent flowage of said land for the purpose of operating said grist mill; that said property from the date of the construction of said dam and the erection of said mill has been continuously operated for mill purposes, as aforesaid, down to the present time. That upon the date last mentioned the said Samuel W. Dexter and wife executed their warranty deed of conveyance of said premises unto T. J. Provost, Sydney S. Derby, Calvin Smith and Pierpont L. Smith, said deed of conveyance being recorded upon April 8, 1837, in Liber C of Deeds, upon page 150; that thereafter, and by subsequent conveyance the said T. J. Provost, Sydney S. Derby, Calvin Smith and Pierpont L. Smith, together with their wives, conveyed said premises to Sullivan R. Kelsey, but by an error of the scriviner who drew said deeds of conveyance, leaving a considerable doubt as to whether or not the entire premises above described or only an undivided one-fifth interest therein was conveyed to the said Sullivan R. Kelsey, although such was the apparent understanding of the parties to said conveyance. The last deed of conveyance to the said Sullivan R. Kelsey was made upon, to-wit, the 10th day of December, 1842, and was a warranty deed executed by F. G. Provost and Sydney S Derby together, with their wives, which was recorded upon the 19th day of December, 1842, in Liber F of Deeds, upon page 360. Various deeds of conveyance including the water power rights and the right of flowage of the lands above described in connection with the operation of said mill carried the title to said premises to Henry H. Rosenkrans and Allen Sheldon, who upon the 16th day of January, 1882, were the owners in undivided equal shares of the above described premises. However, a receiver's deed, bearing date January 15, 1879, executed unto Flavius J. Lake, Sydney Cushing, Franklin B. Daniels and Johnathan E. Herrick, which said deed was void and without effect, casts a cloud upon the title unto said land and the water power rights in connection therewith in the said Allen Sheldon and Henry Rosenkrans, said deed being recorded on the 18th day of February, 1881, recorded in Liber 53 of Deeds, page 197.

3. Thereafter and upon, to-wit, the 16th day of January, 1882, the said Allen Sheldon together with his wife conveyed his undivided one-half interest in the premises above described unto the said Henry H. Rosenkrans, said deed being recorded upon the 28th day of January, iS82, in Liber 38 of Deeds, upon page 283. Thereafter and upon, to-wit, the 14th day of December, 1892, the said Henry H. Rosenkrans. together with his wife, he being then the owner of said premises in fee simple, conveyed the premises above described by his warranty deed of conveyance to William A. and Harriett R. Showerman, said deed being recorded on the 17th day of December, 1892, in Liber 73 of Deeds, page 549. The description in said deed of conveyance includes the premises above described and is as follows: