Those courts which have sustained the validity of these nonassignment clauses have usually based their decisions upon one or more of the following reasons:

1. That the parties to a contract have the right to make any contract they desire, so long as such contract is not against public policy; that nonassignment clauses of the character under consideration here violate no principle of public policy.

2. That the vendor ought to have the right to select his vendee, as one vendee might be more desirable than another by reason of his financial situation, punctuality or ability to perform and carry out the agreement.

In considering the main question involved in this discussion, it is well to bear in mind that the following legal propositions have been settled in this state: cepts assignment of a contract which by express terms is made nonassignable acquires only a cause of action against the assignor.' See also, Burck v. Taylor, 152 U. S. 634, 38 Law Ed. 578; see also, Roses U. S. Notes; Tabler v. Sheffield Land Co., 79 Ala. 377, 58 Am. Rep. 593; Deffenbaugh v Foster, 40 Ind. 382; Andrew v. Meyerdirck, 87 Md. 511, 40 Atl. 173; City of Omaha v. Standard Oil Co., 55 Neb. 337, 75 N. W. 859; Zetter-lund v. Texas L. & C. Co., 55 Neb. 355, 75 N. W. 860."

In the instance case, however, the court decided in favor of the defendant, holding there had been a waiver of the stipulation not to assign. The court saying: "In such contracts as the one we have before us, the provision against assignment without the consent of the seller is made for his benefit and, like all other privisions in favor of a party, he may waive it if he chooses. Such waiver may be proved by parol and by circumstantial evidence, as well as by direct testimony."

In Olcott v. Hermans, 10 New York Supreme Court Rep. 436 (3 Hun. 436), the court said: "The provision in a contract for the sale of land, that it shall become void if assigned without the consent of the vendor in writing, is valid and binding, and the assignment without consent, renders the contract void as against the vendor. But it may be waived and is waived if the vendor with notice of the assignment, accepts the purchase money from the assignee."

The vendee is the equitable owner of the real estate under a land contract, while the interest of the vendor is held to be personal property and his reservation of title is only by way of security, the vendor's interests being so closely analogous to the interest of the mortgagee under a mortgage, that substantially the same procedure is followed in foreclosing both classes of liens.17 Both mortgagor and vendee are entitled to the possession and beneficial enjoyment of the property. If such nonassignment clause should be upheld as between vendor and vendee, it ought to be upheld between the mortgagor and mortgagee, as the two classes of securities are executed for the same purpose, accomplishing the same result, namely, securing in one instance the payments which may be due and may bcome due the vendor; the other similar payments to the mortgagee. That such restrictive covenants in mortgages would not be upheld by the courts is too plain for argument.

Apparently the strongest argument advanced in favor of upholding the nonassignment clause in a land contract, is that the vendor has a right to select his vendee by reason of the fact that one vendee may be more desirable than another because of his financial situation, honesty, punctuality or ability to perform and carry out the agreement. This argument, however, falls to the ground when it is considered that in Michigan the assignment of a land contract by the vendee does not release such vendee from his obligation to see that all the terms of such land contract are fulfilled and carried out. Therefore, where the vendee assigns the contract the vendor surrenders no right to proceed against the vendee which he already has.18 And if anything, his security in the contract

17. Sec. 11 Ante; Fitzhugh v. Maxwell, 34 Mich. 138; Midland County Savings Bank v. Prouty, 158 Mich. 656; Harris v. Brown, 172 Mich. 164

The interest of vendor is personal property. Bowen v. Lansing. 129 Mich. 119-121; City of Marquette v. Iron Co., 132 Mich. 130.

Interest of vendor and vendee is like that of mortgagor and mortgagee and vendor's lien is foreclosed in much the same manner. Meigs v. McFarlane, 72 Mich. 194.

18. Where the vendee assigned the contract with the written consent of the vendor endorsed thereon, the court held that the vendee was not released from the covenants in contract. Foley v. Dwyer, 122 Mich. 591; Wuneman v. Phillips, 93 Mich. 223; Barley v. Wells, 8 Wis. 141, 76 Am. Dec. 233.

is strengthened and enhanced by reason of the fact that he has an additional party interested in the person of the assignee of the vendee in seeing that the payments on the contract are kept up and the terms of such contract fulfilled. If it be argued that the vendor by reason of such clause controls who shall have possession of the premises, the answer is that such nonassignment clause does not prevent the vendee from subletting the premises so that the vendor in any event has no direct control by reason of such nonassignment clauses over the occupancy of the premises, and it should further be noted that apparently it is the view of the Michigan Supreme Court that the vendee in a land contract has such an interest in the real estate as will enable him to sell and convey the same in spite of the nonassignment clause prohibiting the assignment of the contract itself, the court drawing a distinction between a sale of the equitable title to the property held by the vendee and an assignment of the contract itself.19 It will, therefore, be seen that the nonassignment clause under consideration confers upon the vendor no real protection, but does give him a right which is usually exercised against the vendee contrary to sound principles of public policy.

In those decisions sustaining the forfeiture of contracts for the violation of the nonassignment clause, the question of whether or not such clauses in actual transactions between the vendor and vendee operates against public policy, does not seem to have been examined or raised in the cases considered, the court merely contenting itself with the statement that such clauses were not against public policy, without scrutinizing their actual operation.

In examining this question it should be borne in mind that the restraints against alienation of real property are not favored in law and are generally held to be against public policy if even for a limited time.20 In what way does the restraint in

19. The vendees in a land contract have an equitable interest in real estate and they have the right to sell and convey the same, notwithstanding a provision in their contract that they cannot assign it without the consent of the vendor. Coulter v. Lovinger, 212 Mich. 272. 20. Restraints against the alienation of real property are not favored in law. Mendelsohn v. McDonald, 29 Mich. 96.

land contracts under discussion operate against public policy? Public policy has been defined by a well known authority to be "that principle of law which holds that no person can lawfully do that which has a tendency to be injurious to the public or against the public."21 It has been the observation of the writer that the nonassignment clause is used almost invariably in a manner "injurious to the public," by exacting from the vendee a consideration for permitting the transfer which the vendor has in no wise earned. By reason of such nonassignment clause in the contract, the vendor can and does very frequently say in effect to the vendee, "Pay me a large sum of money or give me a consideration which I have not earned and I will consent to the assignment of the contract." Sometimes this consideration consists of compelling the vendee to pay the entire purchase price, whereas under the contract he was entitled to make his payments my monthly installments over a long period of years, and other times the consideration exacted is a lump sum payment; in other cases increase of the payments are exacted, but whatever the consideration may be it is nothing more or less than a penalty, regardless of name, exacted from the vendee without any real consideration passing to him. The penalties and forfeitures are hateful to the law of Michigan and perhaps more so than to most states, is well known to the profession.22

Our courts have not hesitated to hold as void against public policy provisions providing for attorney's fees, in notes, in mortgage and penalties of various sorts in contracts and we are constrained to feel that the same principle should be adopted with reference to the clauses under consideration in this section.