purchase money, as if no contract had ever been entered into. To get our bearings, we must first look to the contract to determine its true import and meaning, for by it the parties were wholly to be governed in their subsequent dealings with each other. We need to notice but two features. A clause provides that the vendees may at any time pay the agreed price of any of the designated tracts separately, as per schedule attached, and thereupon be entitled to a conveyance of all the right, title and interest of the railroad company therein. A subsequent clause provides that, in case the vendees, their legal representatives or assigns, shall pay the several sums of money agreed upon punctually and at the times limited, and shall strictly and literally perform, etc., then that the railroad company will cause to be made and executed unto the vendees, their heirs and assigns (upon request and surrender of the contract, providing the railroad company had then received and obtained from the United States a patent thereto, and when said lands thereby contracted to be sold shall have been patented to the railroad company), a deed conveying all the right, title, and interest of the company in and to said premises.

The question for consideration is whether the railroad company contracted to sell and convey to the vendees the entire feesimple interest in the lands described, or merely its right, title and interest therein at the time, be that what it may. It is well understood extraneously that the company was earning and procuring these lands from the general government through the act of congress of July 25, 1866. The parties were negotiating with reference to the title to be thus acquired. The general government being the source of all true title to the public domain must be presumed, and it was no doubt the idea that possessed the minds of both vendor and purchasers that they were dealing with reference to a conveyance of the fee-simple or ultimate title to the premises, barring only such reservations as may have been withheld by congress, the act having reserved nothing except that mineral lands were not to be included: 14 Stat. U. S. c. 242, p. 239. It is impossible to discern, under the attending circumstances, that the parties had in mind any other or lesser title than this. By the clause first in order one would naturally

infer that it was the purpose of the company to execute a deed at once to the purchasers to any parcel of the land included in the contract upon which they might elect to pay the scheduled price. The clause does not say that, however, but only that the purchaser shall be entitled to a conveyance of all the right, title and interest of the company. But when? If read in pari materia with the subsequent provisions upon the subject-which we are inclined to think it should be-it becomes at once manifest that it was not the intendment that any deed should be executed or delivered to the purchasers, their personal representatives or assigns, until the patent had first been issued to the company by the general government. But whether this clause. applies to parcels separately paid for or not, the stipulation makes it absolutely clear that where it is sought by the purchasers to pay the full purchase price, and otherwise perform, so as to entitle them to a deed to all the lands, one would not be demandable until the company had first acquired a patent from the general government. So that, looking to the species of title the company expected to acquire, and the ultimate performance on its part by a conveyance of all its right, title, and interest, it follows by irresistible sequence that the parties were dealing with reference to the fee-simple or ultimate title, and not to any qualified right or interest therein less than the whole.

2. As to the other feature, the contract provides that the balance of the purchase price shall be paid on the 31st of December, 1894, with interest thereon in the mean time at the rate of 7 per cent per annum, payable annually, counting from the date of the first payment, to-wit, December 31, 1889. On December 31, 1890, therefore, $4,054.81 became payable, and a like amount on the 31st of December of each succeeding year to and inclusive of December 31, 1894, when the balance was payable. It further provides, following some intervening stipulations, that if any of the said sums, either of principal or interest, shall not be paid at the dates specified, then that such sums shall bear interest at the rate of 10 per cent per annum. Then follow varying, explicit and positive provisions touching the strict and literal performance of the contract on the part of the purchasers, and with a view to making time of the essence of the contract. Now, it is

strenuously insisted on the part of plaintiff that the stipulation as to the increased rate of interest to be paid on defaulted or overdue payments is within itself a waiver on the part of the company of any default that might be incurred on the part of the purchasers by reason of any failure to meet payments on the dates specified. We cannot concur in this view. The clause must be construed, of course, in connection with the other clauses in the contract relating to the subject of forfeiture, and when so construed the true intendment is perfectly manifest. The provisions respecting a strict and literal performance on the part of the vendees going to emphasize the direct and positive stipulation that time shall be of the essence of the contract are so numerous, and asserted with such varying stress and impressiveness, that there can be no mistake as to their real purpose. They even go to the utmost verge of declaring that the courts shall not relieve the purchasers from their failure to observe their conditions exactly and punctually.

3. These stipulations were inserted wholly and solely for the benefit of the vendor. They could not serve the purchasers in any way, as the latter would be precluded from taking the least advantage of their own default. Being for the benefit of the vendor, it might, if it so desired, waive their strict and literal observance on the part of the purchasers, and this it could do in advance of the time of agreed performance. So it could, if it saw fit to, forego a forfeiture already incurred, and thereafter accept performance, and itself perform as if no default had taken place. The matter, therefore, of requiring exact performance on the part of the purchasers, lies wholly within the option or election of the vendor: Dana v. St. Paul Invest. Co. 42 Minn. 194 (44 N. W. 55); Chambers v. Anderson, 51 Kan. 385 (32 Pac. 1098); Cartwright v. Gardner, 5 Cush. 273, 281; Manning v. Brown, 10 Me. 49; Mason v. Caldwell, 5 Gilm. 196 (48 Am. Dec. 330); Church v. Ayres, 5 Cow. 272; Wilcoxson v. Stitt, 65 Cal. 596 (4 Pac. 629, 52 Am. Rep. 310). Seeing that such is the purpose of inserting the time-essence conditions, it becomes at once apparent why the clause providing for payment of the increased rate of interest in case the stipulated payments were not punctually made was inserted. It subserves two pur

poses: (1) As a pressure to induce prompt payments on the part of the purchasers, and (2) to increase the vendor's compensation should it see fit to waive strict performance or a forfeiture, should one have been incurred. Nor does it signify an intendment, notwithstanding the provisions for prompt performance, that they should not be strictly observed, but was inserted so that, in case the vendor should choose to waive such observance, he might be entitled to a greater percentage of interest for his indulgence. In this view it is not inconsistent with the other provisions under discussion, as all can subserve their especial purposes without the least inharmony.

O'Connor v. Hughes, 35 Minn. 446 (29 N. W. 152), so implicitly relied upon by respondent, is not in conflict with this interpretation, for in that case the contract provided that, if there was any default in strict performance, the vendor should have the right at his election to declare it null and void; and it was held that, in the absence of a determination on the part of the vendor to require strict performance and of reasonable notice of such election on his part, the mere default of the vendee in making the specified payments would not operate to extinguish his equitable rights, and that a subsequent declaration of forfeiture by the vendor, without notice and reasonable opportunity to make payment, was also ineffectual. The difference between the two contracts is manifest and vital. By the one we are construing, a forfeiture is incurred upon default in payment at once, and by force of positive stipulations to that effect; but in that one the vendor was accorded the right, at his election, to declare the contract null and void on account of the default, and without such declaration properly and timely made there could be no forfeiture. It is true that in the course of construing the contract the clause respecting overdue payments drawing an increased rate of interest was considered among the rest as indicating as well an intendment that the default was not of itself to work a forfeiture. This, however, was natural, for the forfeiture was not made to depend merely upon the failure of payment strictly and punctually at the time specified, but upon the election also of the vendor to declare the contract null and void. If he should have permitted the contract

to run on after default without declaring a forfeiture, then it was the intendment that he should be entitled to the increased rate of interest on defaulted payments. So it is here, if the vendor elects to waive the time of payment or a forfeiture that has been incurred by force of the very terms of the contract itself, as distinguished from electing to declare a forfeiture, as in that contract contemplated, then it was the intendment that he should be entitled to the increased interest. The difference is, we state it again, that in the one case the vendor must elect to declare the forfeiture for a default of the purchaser, without which the contract runs on, remains operative, and in the other he might, if he so elects, waive the default and forfeiture that follow by force of the contract without any act of his; and in case of such election we say he is entitled to the increased rate of interest, and there is no incongruity with the idea of strict performance. If the contract does not mean this, the increased interest clause would, in effect, operate to nullify all the repeated, positive and unequivocal stipulations inserted with the unmistakable purpose of making time of the essence of the contract by its own terms unconditional upon any act of the vendor. Burroughs v. Jones, 79 Miss. 214-218 (30) South. 605), seems to give a like construction to a similar contract. By the adjudications, both at law and in equity, the effect of such time-essence stipulations, terminating the contract upon a failure to comply strictly and punctually with its conditions, is to entail a forfeiture by sheer force of the contract itself upon the mere default of the purchasers by their failure to make payments at the times designated as they obligated themselves to do: 2 Warvelle, Vendors (2 ed.), § 813; Snider v. Lehnherr, 5 Or. 385; Cleary v. Folger, 84 Cal. 316-319 (24 Pac. 280, 18 Am. St. Rep. 187); Martin v. Morgan, 87 Cal. 203 (25 Pac. 350, 22 Am. St. Rep. 240); Foot v. Bush, 72 Iowa, 522 (69 N. W. 874); Wells v. Smith, 2 Edw. Ch. 78; Dauchy v. Pond, 9 Watts, 49; Benedict v. Lynch, 1 Johns. Ch. 370 (7 Am. Dec. 484); Cartwright v. Gardner, 5 Cush. 273; Drown v. Ingels, 3 Wash. St. 421 (28 Pac. 759).

There is some divergency of opinion as to when and under what conditions equity will relieve against a default in punctual