tion, and the rule was reaffirmed that recourse may be had to the whole instrument, and, if need be, to the subject-matter of the transaction, the acts, conduct, and dealings of the parties, to ascertain the meaning to be given to any particular word or words found in such instrument. The case is authority for the position that the true intent and meaning of a covenant which is written in an instrument involving real estate may be found by construction, but it is not authority for the position that a covenant which is not written in the instrument may be added thereto by construction. Generally speaking, all rules of construction which obtain in relation to other written instruments are applicable to instruments of conveyance, with the exception that if the particular covenant claimed is not expressed in a writing involving real estate, the statute prohibits a search for it. In the Blake Case the court said: "The scheme of a mining lease implies that ore exists' on the land. That when dealing therewith some matters may be taken for granted by the courts is as true of instruments involving real estate as it is of other instruments. For example, that both parties contemplate the thing around which the contract is built exists is always implied as a matter of course.

"It is contended, further, that if no covenant can be implied in a mining lease, the lease in question is void for uncertainty, because, while it expressly confers on the lessee the right to mine, it does not expressly confer the right to remove iron ore from the premises. The lease provides for the payment of a royalty on all ore mined and 'removed' from the premises; that if the lessee shall mine and 'remove' less than 10,000 tons in any year, it shall nevertheless pay on that tonnage a stipulated ground rent; that if no ore, or less than the minimum amount has been 'removed' from the property, the royalty paid on ore not 'removed' may be applied as payment of royalty on ore exceeding 10,000 tons 'removed' in any succeeding year; that all ore mined and 'removed from said premises' shall be weighed in a manner indicated; and that the lessee may build railroads on the premises for the purpose of 'transporting' the ore therefrom. If more than the foregoing is necessary to show express permission to 'remove' ore, the lease

should not, for that reason, be avoided, but reformed. The option was 'for a lease for mining purposes and removing iron ore' from the described lands. That it was the intention of both parties to include in the lease the right of removal of the iron ore mined is undoubted, and if it is found to have been omitted, its omission was a mutual mistake. But whether the lease expressly permits the removal of the ore and, if not, what should be done are matters neither covered by the pleadings nor essential to dispose of in this case.

"But assuming that a covenant to operate the property may be implied, and that the Verona Company failed to perform such implied covenant, yet the right to forfeit the lease would not follow. The right of forfeiture is confined to the failure of the lessee respecting the covenants and conditions which are expressed in the lease, and does not arise upon the nonobservance of an implied covenant or condition. In Miller v. Havens, 51 Mich. 482 [16 N. W. 865], it is held:

""The common-law doctrine of forfeiture, being founded on strict feudal principles, is now believed to be unjust in many respects, and not applicable to the present state of society, and an interpretation which creates a forfeiture is not to be favored, ** * and statutes creating penalties and forfeitures should receive a strict construction. * * *Courts do not favor forfeitures, * * * and equity will not assist the recovery of a penalty or forfeiture, or anything in the nature of a forfeiture. * ** It has, for a very long period, been the policy of the law, and courts have felt it their duty in administering the law, so far as possible, to limit the effect of a clause or provision in a lease or statute by which a forfeiture is created.'

*

"Hough v. Brown, 104 Mich. 109 [62 N. W. 143], was replevin for certain crops, brought by the landlord against his tenant, upon the claim of forfeiture of and re-entry under the lease. It was there said:

"If it be conceded that the relettings were subject to the terms and conditions of the original lease, the provision relating to re-entry cannot be held to apply to implied covenants. Suppose that the new lease had been reduced to writing, and the agreement to turn over to the lessor one-third of the crops had been substituted for the agreement to pay a specific annual

rental, and then followed the clause providing that, should the tenant "fail in any of the foregoing premises," etc., can it be said that the right to declare a forfeiture followed a failure to perform a promise not expressed, but implied? We think not. The implied agreement must be regarded as a naked covenant, and the right of re-entry must be held to apply in case of default respecting express promises. Forfeiture clauses in a lease are not favored, and their effect will be restricted as far as possible.'

"Somers v. Loose, 127 Mich. 77 [86 N. W. 386], also was replevin for a quantity of hay, brought by the landlord against his tenant upon a claim of forfeiture of and re-entry under a lease. The lease contained no covenants as to husbandry, and it was there held:

""There being no express covenants as to husbandry, the clause in regard to re-entry does not apply to implied covenants.' "In Wakefield v. Mining Co., 85 Mich. 605 [49 N. W. 135], the court said:

"But it is claimed that defendant has violated the condition of the lease respecting the cutting of timber upon the lands in question. This, however, is not one of the acts or neglects for which a forfeiture may be declared, or a re-entry may be made, under the lease. The provisions regarding forfeiture will be strictly construed. The lease provides that: "If it shall so happen that the royalty or rent above reserved and agreed to be paid be behind or unpaid at the time or on the days above mentioned for the payment thereof, or in case said taxes or assessments are not paid in due and timely season, or in case of the nonperformance of any of the covenants made by said parties of the second part at any of the times mentioned for the performance thereof"-then a re-entry may be made. Mr. Wakefield, when asked regarding the cutting of the timber, replied: "I should expect that, if the tenant kept a lease-the life of the lease specifies 20 or 25 years he would remove every stick of it, and a great deal more." The life of the lease is 30 years, and it was not strange that the parties were satisfied that this covenant should rest in contract alone, without the additional security of right of forfeiture.'

"In Harris v. Oil Co., 57 Ohio St. 118 [48 N. E. 502], the syllabus reads:

"Where the forfeiture clause in such a lease is to the effect

that a failure on the part of the lessee to comply with the conditions, or pay the cash consideration in the lease mentioned, at the time and in the manner agreed, then the lease to be null and void, and not binding on either party, and oil being produced in paying quantities through wells drilled on the lands by the lessee under the lease: Held, that the lessee has a vested interest in the lands; that to work a forfeiture of the lease, there must be a breach of a condition or covenant which is mentioned in the lease; that a breach of an implied covenant does not work a forfeiture of the lease; and that certain causes cannot be implied.'

$

"At page 131 [of 57 Ohio St., at page 506 of 48 N. E.] the court said:

""It is strongly urged that it is inequitable for the lessee to hold onto his lease and still fail to so operate the premises as to produce reasonable results, and that he should either reasonably operate the premises or get off and permit his lease to be forfeited. The answer is that while there is an implied covenant to reasonably operate the premises, there is no implied or express covenant to get off and forfeit his lease for a breach of such covenant.

""The lease in question provides for a forfeiture for the failure to comply with the conditions, or to pay the cash consideration in the lease mentioned, at the time and in the manner agreed; but the implied covenant, to reasonably operate the premises, is not mentioned in the lease, and is therefore not included in the causes of forfeiture. Some causes of forfeiture being expressly mentioned, none other can be implied.

** The remedy for a breach of the implied covenant to reasonably operate the premises is therefore not by way of a forfeiture of the lease in whole or in part, but must be sought in a proper action for a breach of such covenant.'

"In Snyder on Mines, § 1292, the author says:

"Nonpayment of rent is not always a forfeiture bearing covenant. It is only so when the parties make it so; and if the parties merely provide a certain rent without providing for forfeiture for nonpayment, a right of action for the rent, but no forfeiture, accrues to the lessor for nonpayment.'

"In McKnight v. Kreutz, 51 Pa. 232, it is held: ""There is nothing in the words of the lease that can by any just construction be regarded as making the tenure of the lessee dependent upon his compliance with any other covenants

than those which relate to the rent. The utmost that can be made of the stipulation that the lessee should dig coal in such a manner as to do no injury to the surface of the land, and not spoil the coal itself, is that it constitutes a covenant, the breach of which may subject the lessee to liability for damages, but not to forfeiture of his estate. Conditions that work forfeitures are not favorites of the law, and nothing less than a clear expression of intention that a provision shall be such, will make it a condition upon which the continuance of an estate ** * depends. ** * Having expressed for what causes

a forfeiture might be claimed, it is not to be inferred that there are any grounds of forfeiture not declared to be such.'

"It remains to consider whether the lease was in conflict with section 12, art. 18, of the Constitution in force at the time of its execution, which read:

"No lease or grant hereafter of agricultural lands for a longer period than twelve years, reserving any rent or service of any kind, shall be valid.'

"In the present Constitution the section reads as before, except the words 'for agricultural purposes' follow the word 'lands.'

"The surface of the De Grasse lands is suitable for agricultural purposes, and has, in fact, been farmed by Mr. De Grasse, or his grantees, each year since his entry thereof, as a homestead in 1884, and the claim is that because the surface is suitable for agriculture, a lease of the land for a longer period than 12 years, although for mining purposes, was void, in view of the Constitution as it then stood. This section of the Constitution has not been construed by the It has, however, received a practical construction, and has not been regarded as prohibitive of leases of agricultural lands for any purpose exclusive of agriculture. Practically all lands in Michigan are agricultural lands. The prohibition of the Constitution did not take into account the size of the tract, or its grade as an agricultural proposition. While the Constitution of 1850 remained in force the lease of even a village lot for agricultural purposes for a longer period than 12 years was void, while, according to the construction universally accorded the section, a lease of the same lot, for the sole purpose of erecting a building for merchandising, was valid. So a lease