him to postpone the marriage for a few days and to convey to him the 20 acres of land on the west side of the road to be held by the plaintiff for defendant so that he would not lose the same in the event of any trouble with his intended wife, and that he would need some one to take care of him as he grew older, and in consideration of conveying the said 20 acres of land to the plaintiff, plaintiff agreed that, whenever defendant was in need, he would take care of him and furnish him with the necessaries of life, and that he would give defendant a life lease of the property, and that plaintiff would support defendant and pay the taxes when he became unable to pay the same; that plaintiff practiced a fraud upon him in the preparation of said deed by having the same also include 20 acres of land on the east side of the road; that all of the buildings on the east side of the road, except a blacksmith shop built of rough lumber, were consumed by an accidental fire. Defendant denies having committed waste, but admits that on account of lack of funds and by reason of illness and inability to work and the failure of plaintiff to keep his promises to support and assist defendant, it is true that the property generally is out of repair. He admits that he has not paid the taxes for the years 1916, 1917 and 1918, and claims he relied upon the promise of the plaintiff to pay them.

In the cross-bill defendant Christopher Schuman sets up the claim of fraud on the part of plaintiff in procuring the transfer and the promise of plaintiff to support him and to pay the taxes and asks the court to set aside the deed.

The circuit judge, being of the opinion that defendants had had every opportunity to be heard and had not availed themselves thereof, refused to set the default aside, but did set the decree aside because of failure to give notice of its settlement. Thereupon

notice of the settlement of the decree was given and defendants appeared and objected thereto. And the court re-entered the decree and ordered:

"That said original decree be, and the same is hereby settled as of the date of this order, and said decree is hereby amended to date on May 23, 1921."

Having in mind the age of defendant Christopher Schuman, and his poverty, and the fact that the plaintiff is his son and that the father stripped himself of all of his property and assumed a burden hardly capable of accomplishment, and having in mind the fraud charged in the answer, we are of the opinion that the decree and the default should have been set aside and the case heard upon the merits. The aged, while not wards of the court, strictly speaking, yet their interests are of tender concern to a court of equity.

Counsel for defendants ask that we take the affidavits and answer of the defendants as true and enter decree here setting aside the plaintiff's deed on condition that the defendants repay plaintiff the taxes which he has paid, together with interest. This we must decline to do. The case involves issues of fact.

The plaintiff insists that the order of the circuit judge, refusing to set the default of defendants aside, was a final order from which an appeal might have been taken, but notice of appeal states an appeal from the decree or order. We need spend no time upon this point; defendants are to be commended and not condemned for bringing the whole matter up on one appeal rather than piecemeal.

The appeal brings up the question of the power of the court of chancery to declare a forfeiture of a life lease in case the parties have not provided for a forfeiture in the lease. It is claimed in behalf of plaintiff that equity has jurisdiction to enjoin waste and to take an account of the damages occasioned by past

waste, and the familiar rule is invoked that when equity has obtained jurisdiction of a case for any purpose of relief it will retain it for the purpose of full relief. This brings us back to the question of whether equity will declare a forfeiture in a case where the parties have not provided for a forfeiture. No case is cited in which a court of equity has done so in case of waste and our research has disclosed none in this country outside of where there is statutory provision therefor.

In Kentucky the statute provides for judgment of forfeiture, and it has there been held that such forfeiture may be enforced in equity. Smith v. Mattingly, 96 Ky. 228 (28 S. W. 503).

In Brown v. Martin, 137 Ga. 338 (73 S. E. 495, 39 L. R. A. [N. S.] 16), a forfeiture of a life estate was granted for waste but it was in an action at law and under the provisions of a statute and the court was careful to state:

* *

"The suit in the present case is based purely on this statute. It is in no sense an equitable action and no equitable features are involved. * It might here be remarked that no equity jurisdiction can attach with respect to legal waste except for the purposes of injunction."

It is stated in Padelford v. Padelford, 7 Pick. (Mass.) 152, that in Massachusetts the statute provides for a forfeiture. At common law, previous to the statute of Gloucester, there was no forfeiture for waste. Chipman v. Emeric, 3 Cal. 273.

The action under the statute of Gloucester to recover the premises injured fell into disuse in England and was abolished by the statute of 3d and 4th of William IV., chap. 27. Lee v. Payne, 4 Mich. 116. See, also, Stevens v. Rose, 69 Mich. 259, 269.

It is clear that the action of waste under the old English practice, involving a recovery of the premises

injured, does not prevail in this State, and that the remedy is by action on the case. 3 Comp. Laws 1915, § 14940; Lee v. Payne, supra; Stevens v. Rose, supra; Duncombe v. Felt, 81 Mich. 332, 338. This, however, does not interfere with the power of the court of equity to restrain waste and allow damages for waste already committed. Dawson v. Tremaine, 93 Mich. 320; Hodges v. Buell, 134 Mich. 162; Anstays v. Anderson, 194 Mich. 1. But the satisfaction for waste committed cannot by decree be made to extend to forfeiture of the estate unless the parties have so agreed.

The life lease signed by plaintiff and defendant Christopher Schuman provided:

"The said Christopher Schuman hereby agrees to pay all taxes and assessments that shall be at any time levied or assessed upon the said property heretofore described, and as the same shall fall due, and to keep said premises in good repair and condition during his life."

If this agreement on the part of the defendant Christopher Schuman be held in the nature of a covenant then the plaintiff must accept the usual remedy afforded, and a breach of the covenant, in the absence of an agreement to such effect, would not authorize the court of equity to declare a forfeiture. If the language of the lease be considered as providing conditions subsequent, then, there being no forfeiture provided, the nonperformance of the conditions worked no forfeiture and equity cannot declare one.

"No rule is better settled than that a court of equity will not lend its aid to enforce a forfeiture because of a breach of a condition subsequent in a deed." Douglas v. Insurance Co., 127 Ill. 101 (20 N. E. 51).

See Hanaw v. Bailey, 83 Mich. 24 (9 L. R. A. 801); Pickard v. Kleis, 56 Mich. 604; Langley v. Ross, 55 Mich. 163.

In Phelan v. Boylan, 25 Wis. 679, it was held that a tenant for life who neglects to pay taxes which accrue after his tenancy commences is liable to an action of waste, but under the laws of the State, judgment for waste is not accompanied by forfeiture of the estate, and whether equity would interfere on the ground of such neglect was questioned. Equity will not lend its aid to divest an estate for a breach of a condition subsequent and thereby enforce a forfeiture. Smith v. Jewett, 40 N. H. 530.

In Williard v. Williard, 56 Pa. St. 119, Judge Agnew said:

"I remember of no case of forfeiture of a life estate by waste expressly decided. Forfeitures are not favored; and, looking at the condition of the country, the habits of the people and the ample statutory remedies provided, it may be doubtful whether the doctrine would be applicable to our circumstances."

This court has not been silent upon the subject. Equity will not declare and enforce a forfeiture. Crane v. Dwyer, 9 Mich. 350; White v. Railway Co., 13 Mich. 356; Watrous v. Allen, 57 Mich. 362.

3 Story's Eq. Jur. (14th Ed.) § 1732, states the rule and cites ample authority in support thereof:

"In the next place in regard to cases of forfeitures. It is a universal rule in equity never to enforce either a penalty or a forfeiture. Therefore courts of equity will never aid in the devesting of an estate for a breach of a covenant on a condition subsequent, although they will often interfere to prevent the devesting of an estate for a breach of a covenant or condition."

We think the court should have set aside the decree and default and have granted defendants the right to file their answer and cross-bill and to have the case heard upon the merits. The decree entered grants a forfeiture in a case where the parties have not stipulated for one, and for that reason should be vacated.