Land contracts in general use in Michigan usually contain a provision that upon a breach of any of the terms and conditions thereof on the part of the vendee, the vendor shall have the right to declare such contract forfeited and may repossess himself of the premises. Before serving a notice of forfeiture in such cases due consideration should be given by the vendor to the fact that if he elects to forfeit the contract, thereby terminating the contractual relation between himself and the vendee, he thereby waives the right to foreclose his vendor's lien in equity or to bring an action at law for future installments of the purchase price to become due, or to bring an action for specific performance of the contract against the vendee, or to pursue any other remedy which relies upon the existence of the contract.1

Upon a breach of any of the material terms or conditions of a land contract the vendor has the right to pursue any one of the following remedies against the vendee:

1. He may declare the contract forfeited and make peaceable entry into possession of the premises, at the same time declar-

1. In a number of case, the Supreme Court has announced that the following courses in equity are open to a plaintiff after a declaration of forfeiture has been served, to-wit: First, a suit in equity to foreclose the contract; second, an action In ejectment; third, summary proceedings under the statute.

See Curry v. Curry, 213 Mich. 316; Lampkins Loan & Investment Co. v. Adams, 132 Mich. 350.

But considering the nature of the remedy of foreclosure, it would seem that the action in foreclosure was an affirmation of the existence of the contract and entirely inconsistent with the declaration of forfeiture.

Pomeroy in his admirable work on equity, fourth edition, section 1262, in speaking of the action of foreclosure, "The equity action to enforce the so-called lien is simply an action to compel the vendee to make payments of the purchase price within a specified time, or else be barred of all rights under the contract."

Since the action of foreclosure is a proceeding to collect the purchase price, and is inconsistent with the severance of contractual relations between the parties, how can the vendor maintain such action, after having severed such contractual relations by notice terminating the contract, if the vendee objects?

We do not find where the question has been presented, but there are decisions holding that an action to foreclose the contract waives any previous, declaration of forfeiture.

Old Second National Bank v. Savings Bank, 115 Mich. 553; Mayday v. Roth, 160 Mich. 190; John v. McNeil, 167 Mich. 151.

A careful examination of the foregoing cases in which those state-' ments occur that the vendor may file a bill to foreclose his vendor's lien after service of a declaration of forfeiture, will disclose that such statements are dicta and were not necessary to decide the case, and the principle that after a declaration of forfeiture, the vendor cannot collect the purchase price by bill to foreclose, seems unassailable.

ing that he takes possession for the purpose of making the forfeiture effectual. The vendor, however, may not take possession in this manner unless, permitted so to do by the vendee. A voluntary surrender under such circumstances of the premises by the vendee afterwards estops him from asserting any rights therein.2

2. He may declare the contract forfeited, and begin proceedings for possession either by an action in ejectment or by summary proceedings before a circuit court commissioner. Either one of such possessory actions is consistent with the forfeiture of the contract.3

3. He may bring an action of law for whatever installments of the purchase price have become due and are unpaid.4

4. He may foreclose the vendor's lien by an action in chancery, in which event he waives the right to declare such contract forfeited. He may pursue both his action at law for the installments of the purchase price and resort to a foreclosure of his vendor's lien at the same time.5

5. He may sue the vendee for damages for non-performance of the contract.6

6. He may bring an action for specific performance of the contract against the vendee, even though the vendee's undertaking is only for the payment of money.7

7. In many cases courts of equity will relieve the defendant from the forfeiture of the contract where such forfeiture has been declared by the vendor.8

For a full discussion of the foregoing remedies available to the vendor, and defensive measures which the vendee may

2. See Sec. 144, Post; Gates Real Property, Sec. 613; Pendill v. Union Mining Co., 64 Mich. 172; Laetz v. Tierney, 153 Mich. 279 (281-282); Alexander v. Hodges, 41 Mich. 691 (694).

3. See Sections on Summary Proceedings, Sec. 157-161 Post, and the Vendor's Remedy of Ejectment, Post.

4. Carter v. Reaume, 159 Mich. 160; Higney v. Swan, 111 Mich.

161; Allen v. Mohn, 86 Mich. 3281; Gates Real Property, Sec. 617.

5. See Vendor's Remedy of Foreclosure, Chapter XI (Foreclosure Of Vendor'S Lien Pleading And Practice) Post; Gates Real Property, Sec. 617; Pearson v. Gardner, 202 Mich. 360.

6. Carter v. Reaume, 159 Mich. 160.

7. See Chapter on Specific Performance, Ante (Chaps. 7 and 8).

8. See Sec. 171-172, Post, Relief from Forfeiture.

take to protect his interests, reference should be had to the various chapters and sections of this treatise cited in the notes below.9