March 19th the order pro confesso was entered. July 15th an application was made to set aside this order. The motion was heard July 28th, and denied August 8th. The city appeared in the case, which was heard June 18th, and decree entered for complainant. Mr. Keena, one of the solicitors for complainants, swore in his affidavit opposing the motion that he had conversations with Duncan McLeod and Andrus, both before and after said pro confesso, in which it was understood both by McLeod and Andrus that defendant McLeod intended to allow the bill to be taken as confessed in order to avoid unnecessary expense. Mr. Andrus swore in his affidavit that, after an examination, he advised McLeod that the complainants were entitled to the relief prayed for; that McLeod instructed him not to file an answer, but to endeavor to make a settlement without making any defense. These affidavits are met by the affidavit of Duncan McLeod alone. We are also satisfied that the proposed answer does not meet the case made by the bill. Under these circumstances we do not think the court abused its discretion in refusing to set aside the order pro confesso. The decree of the court is affirmed, with costs.

1. A lease of certain ore mines provided that if the royalty was not paid at the times fixed, or in a case of non-performance of any of its covenants, the lessors might re-enter, and avoid the lease. The rent was not paid for two months, owing to temporary embarrassment of lessees, nor was the amount of ore mined reported to lessors as stipulated. A notice was served on lessees demanding the surrender of the premises, but the lessor at the time assured them that another notice would be given, and that judgment in proceedings to recover possession could not be rendered until a certain day; and that, if the royalties were paid before then, it would be all right. The royalties were paid before that time, but in the mean time plaintiff, by collusion with defendant's superintendent, obtained possession. Held, that the non-payment of rent did not of itself work a forfeiture, and the assurance given deferred the right of entry, and hence the entry was wrongful, and possession must be restored.

2. An entry effected by misrepresentations and collusion with the occupant's servants will not support a bill in equity to quiet title.

CHAMPLIN, C. J., and GRANT, J., dissenting. Appeal from circuit court, Gogebic county, in chancery; SHERMAN B. DABOLL, Judge.

C. F. Button and Turner & Timlin, (Russell C. Ostrander, of counsel,) for appellant. Howell & Riley, Van Dyke & Van Dyke, and Dan H. Ball, for appellees.

MCGRATH, J. Complainants, residents of Milwaukee, Wis., are owners of certain mining lands in Gogebic county, in the state of Michigan, of which defendant is

the lessee. The lease is recorded, and complainants are in possession, and file this bill to quiet title, and enjoin the defendant company, organized under the laws of Wisconsin, and whose officers reside in Milwaukee, from interfering with complainants' possession. The complainants, on September 28, 1883, executed and delivered to N. D. Moore and S. S. Vaughn a lease for 30 years of certain lands, by the terms of which the lessees were to mine ore on said land, and were to pay to the lessors on all ore mined 50 cents per gross ton. On or before the first Monday of each month the lessees were to furnish to lessors a sworn statement of the quantity of ore removed from said premises during the preceding month, and were to pay the royalty on the ore so shipped at the Union National Bank of Oshkosh, Wis. This provision was afterwards modified, changing the time for making reports and for payment from the first Monday to the third Monday in each month. The lessees above named entered upon the said lands, and began operations, and continued the same until February, 1887, when the lessees aforesaid, with the consent of complainants, assigned all their interest in said lease to the defendant company, and the defendant continued operating said mine until some time in November of that year, making their reports, and paying the royalties provided for by said lease, until September, when they failed to report the amount of ore shipped in August, or to pay the royalty upon the same. They failed also to report the ore shipped in September, or to pay the royalty for the same. The consideration paid by defendant for the transfer of said lease was in the neighborhood of $200,000, and one witness testified that he transferred 33,000 of the 40,000 shares of stock for $5 per share, or $165,000, receiving $83,000 in cash, and 500 shares of other stock. Several witnesses called by defendant fix the value of the plant and leasehold interest at the time that the complainant obtained possession at from $100,000 to $200,000. The complainants claim that upon demand made possession of the premises was surrendered to them; that they have been in the quiet and peaceable possession up to the time of filing their bill, in December, 1887; that on information and belief the defendant has been, and is now, in great financial embarrassment, and is virtually insolvent; that they fear the re-entry of said premises by defendant; that there has been a forfeiture of defendant's rights under said lease; that the lease is null and void, and they pray that it may be so declared; that the lease may be canceled of record, and defendant restrained from interfering with complainant's possession, or with their operations on said premises, and from commencing proceedings at law to recover possession of said premises. Defendant files an answer in the nature of a cross-bill, and denies its insolvency, or that it at any time voluntarily surrendered or delivered up possession of said premises to complainants, and it denies that complainants peaceably and quietly entered into possession. It admits that in the month of August, 1887, 4,352 gross tons

and 1,530 pounds of ore was mined and shipped by it, and in the month of September 3,823 gross tons and 70 pounds of ore was mined and shipped, and that these amounts were not reported as provided in said lease; that on the third Monday in September, 1887, there became due to complainants, as royalties or rent under the lease, $2,176.34, and on the third Monday of October there became due the further sum of $1,917.50; that up to the 19th day of November the defendant had not paid these amounts, or any part thereof; that from the third Monday of September, 1887, until the 18th day of November, defendant made constant and unremitting efforts to pay said sum, but by reason of a temporary embarrassment, from which it was then suffering, it was unable to do so until November 19, 1887, on which day this defendant paid to said complainants, at the place specified in said lease, to-wit, at the Union National Bank of Oshkosh, Wis., for royalties due under said lease, the sum of $5,000, by depositing the same in said bank to the order of said complainants, and the same yet remains at said bank, subject to the order of said complainants. It asks to be relieved from the forfeiture, if any be found, to be restored to possession, and for an accounting. The lease contained the following printed provisions: "The said parties of the second part may erect buildings, put in engines and machinery, build roads, and do such other things on said premises as may be necessary or proper to carry on such mining; but all such engines, machinery, buildings, and other improvements shall form part of the realty when put up or erected: provided, on the termination of this lease the parties of the second part, by paying up all arrearages which may become due, owing, or payable to said parties of the first part, their executors and administrators or assigns, on this lease, within thirty days after such termination of this lease, remove such buildings, engines, and machinery, but not otherwise. But no timber shall be cut on any of said premises for the use of the officers, servants, or employes of said party of the second part, either for fuel or otherwise: provided always, and these presents are upon this express condition, 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 non-performance of any of the covenants made by the said parties of the second part at any of the times mentioned for the performance thereof, then and from thenceforth it shall and may be lawful for the said parties of the first part, their heirs, executors, adminis trators, or assigns, unto the said demised premises, or any part thereof, in the name of the whole, to re-enter, using such reasonable force as may be necessary, and the same to have again, retain, repossess, and enjoy, and the said parties of the second part, their heirs, executors, administrators, or assigns, and all other tenants or occupiers of the said premises hereby

demised, or any part thereof, thereout, or therefrom utterly to expel, put out, and remove, and, after such re-entry made, this lease shall wholly cease and determine, and thereby become null and void as it respects the covenants to be performed by the said parties of the first part."

It appears that on the 5th day of No. vember the following notice was served upon H. S. Benjamin, the secretary of the defendant company at Milwaukee, by George M. Wakefield, one of the complainants: "To the Sunday Lake Mining Company: You will take notice that, default having been made in the payment of royalty or rent, and also in furnishing reports of iron ore mined, as provided by the terms of the lease under which you hold the west half of the south-east quarter of section number ten, (10,) in township number forty-seven, (47,) range number forty-five (45) west, in the state of Michigan, of which we are owners in fee, and you, the tenant under us, are hereby required to surrender to us the immediate possession of said premises, or proceedings will be instituted according to the statute in such case made and provided. Yours, [Signed] E. S. CORLISS. RICHARD GUENTHER. GEORGE M. WAKEFIELD. EDWARD ASCHERMAN, by ARTHUR P. ASCHERMAN."

H. S. Benjamin, the secretary of the de fendant company, upon whom the notice was served, says: "Mr. Wakefield came in, and said to me, he had some notices that he wanted to serve; that I need not feel concerned about them; that he wanted to serve them so that nothing could come in ahead of them; that he would let me know before immediate action is taken. I said that I did not want to have any summary service dealt out, that I didn't have any warning of. He said there would be nothing of that kind done; that the notices were served simply to protect themselves, and before any action was taken he would let me hear from them." Benjamin Weil says: "I called on Mr. Wakefield at his home on the evening of November 18th. He said he didn't intend to injure anybody, and all he wanted was the royalty, and to see the labor claims paid; and I said, 'I will raise the money and pay it;' and I arranged for an interview the next morning, at his office, for the purpose of arranging for the payment of the royalties. I called the next morning at 9 o'clock at his office. He said that there was no desire to injure the stockholders, or take any undue advantage of them; that he wanted his royalties paid, and, if that was accomplished, it would be all right, but that it was then too late to negotiate; that he could not do anything until he heard from Mr. Fink." D. Smith says: "I called at Wakefield's office on Friday, November 18th, to talk over the situation of Sunday Lake property. Mr. Bates came in. After some talk Wakefield said he had no claims except royalty; that when that was paid he had nothing more to do. Mr. Bates asked him how soon it must be paid. Wakefield said he had served notice on the 5th, and that he would take possession three days after the decision of the justice, if it was not paid before. Mr. Bates said

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he would see that it was paid at once. Francis A. Bates says: "On Friday, November 18th, I called at Mr. Wakefield's office. I told Mr. Wakefield that I had heard some rumors about his commencing suit against the mine for royalty. He told me he had done so, and that Mr. Fink was up there (Wakefield) at that time. I told him I knew nothing about legal matters in this connection, and asked him if he could tell me what it was necessary to do. He said, in the first place, that he wanted his royalty, but that judgment could not be given until the following Tuesday; and that, if the royalty was paid on Monday, it would be all right. He said that that was all he had against the property; that he wanted to get his royalty paid, and that was all the claim he had. He said there were other claims due the men that ought to be paid up. I told him we were making every effort to pay them, and had made a contract with Mr. Smith for ore, and arranged to push the mine, and had arranged to pay promptly from that time on. He said he wanted the royalty paid, and that was the only claim he made." G. M. Wakefield, one of the complainants, denies the statements made by Benjamin, Weil, Smith, and Bates, but says: "I think I remarked that the law allowed them seven days after service of the notice to pay the royalties. I understood that Mr. Smith and Mr. Pecans held some of the defendant's stock as collateral; and at my request Mr. Fink, on November 13th, sent a dispatch to Mr. Smith, asking him if it would protect the property, and pay the royalties; and, when I found that Smith would not pay, I determined to take possession." Referring to a conversation with Bates on November 19th, he says: "Bates asked me what form we had got to go through to take possession of the property, and I told him what had been told me by Mr. Ordway, and what Mr. Fink had told me Messrs. Ball & Hanscom had told him, namely, that a notice must be served, and, if not paid within seven days, we could take possession if we could get it peacefully; if not, suit would have to be brought in the county where the mine was located. He asked me that question over as many as two or three times, till I became a little perplexed about it, and I said to him: 'You had better counsel your own attorneys. I don't propose to run both sides of this case.' He then says: 'Mr. Wakefield, if you had been paid your royalties, you would have been satisfied?' 'Yes, sir,' I says, 'if we had been paid our royalties, this suit would not have been commenced.'" He states that he served notices upon Benjamin, and said to him that "I had come to demand my royalties for the last time, and to serve papers on him; that we should take possession if they were not paid."

Nothing was done under the notice until November 18th, when Fink, representing complainants, appeared before a justice, made complaint for the recovery of possession, and a summons was issued and placed in the hands of a deputy sheriff. McVichie, the superintendent, was at the mine. On the 19th, Fink, his attorney,

and Sullivan, the deputy-sheriff, go to the locality of the mine, and meet McVichie. Sullivan serves the summons upon him, and what follows is told by Fink: "I stated to him that I had come out to demand possession of the mines. I pulled out the lease, and read it to him; and McVichie said he didn't see how he could prerent me from taking possession. McVichie said that the men had not been paid, and I said that I would see them paid. He said that he had guarantied certain claims, and I agreed to see them paid. Then we walked up to the office, and he invited me to dinner with him. When I got to the office, I told the captain that I had peaceable possession of these two properties, and asked him if he wanted to continue superintending them on our account, and he assented, and then, in the presence of McVichie, I placed Sullivan, the deputy-sheriff, in charge. While we were talking, a telephone message came, and McVichie answered it, and turned around to me, and said: 'If there is anything yet to be done, you had better do it right away, as there is going to be trouble.'" McVichie was in defendant's employ at a salary of $2,000 per year. He had been at Milwaukee between the 10th and 15th of November. He had had, while there, an interview with Mr. Wakefield. On November 17th he wrote the following letter to Wakefield: "George M. Wakefield, Milwaukee, Wis.-Dear Sir: I have been notified to-day that unless the labor claims were settled before the 22d I would have trouble. The merchants in Wakefield that went on the bonds to appeal the suits for labor claims say they have been grossly deceived by Mr. Bates in the security he gave them for going on the bonds. The security was money due the mines from Dalliba, Hussey & Co., for ore sales, which he represented to be $13.000. Mr. Murray, of the Bank of Wakefield, who was appointed trustee to look after the security, has inquired into the matter, and finds that there is no such amount due or likely to be until more ore is shipped. D. McVICHIE. P. S. You will please keep this information quiet, and act as you think best. It appears that his employment by complainants was at an advanced salary. McVichie, however, called for complainants, gives his version of the matter: "He (Fink) demanded possession of me, and I asked him on what grounds, and he read the lease to me, and I answered him that I didn't see how I could keep him from taking possession on those grounds. He said to Mr. Murray, who was cashier of the bank, and who was present: 'We don't want to beat anybody. If the stockholders will come up and pay the royalties and the labor debt, and guaranty to go on with the work, they can have their property.'

* *

* * I was put out of the office on the 29th myself, and my book-keeper. On the morning of the 29th, myself and Mr. Heath went out to the mine,-we were boarding in town at this time,-and, after going around the mine a little while, I went up to the office. I walked into the office, and, was asked by Mr. Ellsworth whom I represented there, and I said the

Sunday Lake Mining Company, or Moore, Benjamin & Co.,-I am not sure as to which; and he said we couldn't stay there; and I answered him that I guessed we could; and I took off my coat and sat at the desk; and I presume we were there half an hour. The sheriff asked me to get out, and I said, 'No,' and then he finally put Mr. Heath out, and then Mr. Byrnes came over, and one took hold of each arm, and I went out. There was no struggle or anything. * That occurred the

# *

day after Thanksgiving, I think. As I told you in my evidence before when you asked me who I considered I was working for, I told you I supposed the whole thing would be settled satisfactorily; and it didn't occur to me for one moment that the Sunday Lake Mining Company was going to lose the property Mr. Fink demanded this possession of me. He made those terms that I have specified.

* As near as I can remember, upon his demanding possession, and reading the lease to me, my answer was that under those circumstances I couldn't see how I could resist; and I said more than that, but I am not sure of it. I think I said that I didn't want to do anything that was wrong in the matter. He said that

it was not their purpose to beat anybody; that if those fellows would come up with the money, and pay the labor debt, and the royalties, and guaranty to go on with the work, they would have their mine. B. Weil says: "I saw Mr. Fink on the 20th. He stated that there was no intention of doing anybody any injury; that all they wanted was to see that the royalties were paid, and that the laboring men received what was coming to them. He gave me to understand that neither the stockholders, bondholders, or any one else interested would suffer if the royalties were paid, and the laboring men satisfied. I talked with M. M. Riley, a lawyer employed by Mr. Fink, and he said if every. thing was paid up there would be no trouble. I first learned that they intended holding the property, and insist upon a forfeiture, when Turner showed me Riley's telegram, (November 27th.) I asked Fink what he was doing there. He said, ‘I am here in possession of the mine.' I says, 'In possession of the mine? What do you mean?' He says, 'Why I am here in possession of the property.' Isays, 'Do you mean to say you are going to hold the property?' He says: No. You fix up the royalties, and pay the laboring men what is due them. That is all we want, and you can have the property any time after that has been paid. That is all we are here for,is to see that no damage is done to the property.' It was understood between Mr. Ellsworth and Mr. Morgan that both the parties should remain in possession of the premises. Turner says both parties were there claiming possession,-Riley and Ellsworth for complainants. Finally Riley said: "I will tell you what we will do. There shall be no move made by either side, and neither shall disturb the other, without giving 12 hours' notice.' I said that was satisfactory to me. On Sunday night, after I got to bed, I got the following telegram from Riley: Fink will take

possession of Sunday Lake to-morrow morning at 8. M. M. RILEY.""

"

A breach of condition is not denied, but the lease does not provide that in the event of a breach it shall become void. The failure to pay the royalties did not, therefore, ipso facto, work a forfeiture. Dare v. Boylston, 6 Fed. Rep. 493; White v. Lee, 5 Ban. & A. 572; Cheney v. Bonnell, 58 Ill. 268. In Palmer v. Ford, 70 Ill. 369, the statement that, "unless the rents were paid, he would have to declare a forfeiture, was held to be insufficient as a declaration of forfeiture. Under this lease the default established the right to re-enter and the determination of the lease followed the re-entry. But whether or not a declaration of intent to re-enter was necessary, the right to re-enter might be waived or deferred by any act extending the time within which payment might be made. A notice to quit was given, but that notice was qualified by the assurance that no further proceedings would be taken, without further notice. No further notice was given until the service of the summons, November 18th. In the mean time, and up to and on the very day upon which the summons was served, the complainants continued to assure defendant that complainants intended a re-entry, if at all, by virtue of the statutory proceedings, and that defendant had all the time allowed by the statute within which to pay the royalties. Had the statute been followed strictly, defendant could have paid at any time before November 21st, and retained possession; and, had the proceedings under the summons been followed, defendant would have been in time had it paid by the 25th. On the very day that Fink was taking out process in Michigan, Wakefield was assuring defendant at Milwaukee that it yet had time until after judgment. These assurances were equivalent to extensions of time, as against any other proceedings except those which defendant had been led to believe would be resorted to. The complainants had, in other words, given notice to defendant of their election to pursue a remedy under and by virtue of which defendant could not be ousted until five days after judgment, and in connection there with had given repeated assurances that defendant had all the time which the statute gave. The defendant was making strenuous efforts to relieve itself not only of this indebtedness, but of other demands. It had appealed to its stockholders and had finally determined upon an issue of bonds for an amount sufficient to liquidate its entire indebtedness, and some of its creditors had already signified their willingness to accept these bonds in lieu of their claims. Of these efforts complainants had been fully advised. On the 18th the president had assured Mr. Wakefield that the royalties would be paid at once, and a meeting was arranged for the next day for that purpose; but on the 19th Mr. Wakefield informed defendant that it was too late; and, at the very time when Fink was perfecting his re-entry, defendant's officers, with more than sufficient money in band to pay the royalties, were seeking Mr. Wakefield in his usual haunts, for the purpose o'

paying the amount due; but, not finding him, at 2 o'clock, within two hours and a half after Fink's claimed re-entry, the sum of $5,000, more than sufficient to pay all the royalty then due, was paid into the bank fixed by the lease as the place of payment. Under these circumstances, a re-entry was premature and clearly unauthorized. But, independent of these considerations, the re-entry in the present case, and possession following it, is not such a re-entry and possession as will authorize a court of equity either to declare a forfeiture or to proceed as if one had been incurred.

A party cannot found a possession entitled to recognition by a court of equity upon an entry made by collusion with the servant of the actual occupant, nor can a possession necessary to support a bill to quiet title be predicated upon an entry secured by misrepresentation as to its purpose. In equity, the entry must not only be quiet and peaceable, but it must be honest, and not one secured by fraud, stealth, or misrepresentation. Equity will not fortify an advantage obtained by a trick. Farmer v. Hunter, 45 Mich. 337, 7 N. W. Rep. 904; Newton v. Doyle, 38 Mich. 645; Watson v. Brewing Co., 61 Mich 595, 28 N. W. Rep. 726. McVichie was the servant of defendant. He had had at least one interview with Wakefield. He had written at least one confidential letter to Wakefield. It nowhere appears that on the 19th, when possession was demanded of him by Fink, be asked for time to consult his employers, or that he at that time or at any subsequent time notified his employers of what was being done or attempted, or of what had been done; but, on the contrary, he submits to Fink's demand, and, when a telephone message comes to the office, he informs Fink that there is going to be war, and, if anything further is necessary on Fink's part to fortify himself, it had better be done at once. Under such circumstances, it is difficult to avoid the conclusion that Fink's re-entry was collusive. McVichie, however, explains that Fink represented to him that the entry was to protect all parties, and that as soon as the royalties were paid, and the men satisfied, the possession would be surrendered. The fact that Fink made the same representations to others, gives color to McVichie's story. Acting upon these representations made by Fink, the defendants's officers proceed to satisfy the labor claims, and several thousand dollars were paid out for this purpose. A question then arising as to possession, complainants, on November 29th, forcibly eject all persons claiming to be there representing defendant. At the time of this eviction the royalties had been paid, and the labor claims had been satisfied, and defendant had complied with all the requirements insisted upon by complainants, and was equitably entitled to possession.

But it is claimed that defendant has violated the conditions 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 made, under the lease. The provisions

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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 times or on the day 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 non-performance 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 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 the right of forfeiture. Again, it is said that defendant is insolvent. To establish this claim it is shown that several suits had been commenced by attachment against defendant. But two of them, however, were commenced before complainants entered upon the mine property. One of these was upon a claim of $100, and the other for an injury received by one of the workmen in the mine. assets of the company were principally in the plant and leasehold interest. Naturally, with complainants in possession, claiming that upon a forfeiture and re-entry the plant and leasehold interest were likewise forfeited, and became their property, the defendant company would be regarded as insolvent. Statements sent out to stockholders are produced, in which it is set forth that their liabilities are in excess of their assets some $32,000; yet their liabilities are largely to their own stockholders, and only available assets are named. Complainants concede the plant and leasehold interest to be worth $50,000, and several witnesses produced by defendant give the value at from $100,000 to $200,000, and these assets are not included in the statement exhibited. I am clearly of opinion that the assurance given to the secretary of defendant company by complainant Wakefield, at the time of the service of the notice on November 5th, towit, that another notice would be given, deferred the right of entry until such other notice should be given; that the subsequent assurances given to defendant's offi cers as to the time within which the royalty might be paid under the statute further deferred the right of re-entry until such time should elapse, or notice of the abandonment of those proceedings should be given; that the giving of this notice and of the assurances subsequent thereto was notice to defendant of complainants” election to proceed to the recovery of possession under the statute, and there could be no re-entry unless by the abandonment of said proceedings and notice thereof, except pursuant to the statute; that the re-entry by Fink, with the assurance that possession would be surrendered upon payment of the royalties, did not operate as a determination of the lease, but was in recognition of its con