(after stating the facts). It is entirely apparent from a perusal of this record that after April 1,1913, defendant continued in possession of the farm without shadow of right. In his opinion herein the learned circuit judge says:

“Defendant's financial condition, his evident desire to prevent complainant and Godfrey having the use of the farm as long as he could prevent it, after having agreed to deliver possession on January 1st, the fact he was holding, not by virtue of the original contract, nor with a claim of right, but as a ‘strong arm’ measure to compel complainant, in order to save trouble, to pay him the sums he claimed, the fact he was estopped from disputing Godfrey’s right of possession, his entire lack of good faith, led inevitably to the conclusion that, unless the court took charge of the crops in some way, neither complainant nor Godfrey, in case he were finally found to be entitled to them, would have any redress.”

It is equally apparent that he determined, rightly or wrongly, to possess himself of the crop of 1913 and to evade an accounting therefor as ordered by the decree of the circuit court. That crop, as shown by our former opinion (Parsille v. Brown, 188 Mich. 485 [154 N. W. 569]), was worth $1,900. On October 1, 1913, having disposed of the crop, he vacated the premises. In the meantime the judgment of the circuit court commissioner has been affirmed in the circuit- court, and no appeal has been taken therefrom. A suit upon the bond given in the summary proceedings resulted in a judgment for plaintiff, which was removed to this court for review. An opinion in that case is handed down herewith. 194 Mich. 578 (161 N. W. 823).

We are of opinion that the court below was in error in holding that:

*684“Complainant is seeking the aid of a court of equity to enforce a forfeiture.”

Equity will recognize a forfeiture, when it is simply an incident of a past transaction. Eberts v. Fisher, 44 Mich. 551 (7 N. W. 211). The petition in this case is filed, not for the purpose of enforcing a forfeiture, but to secure the payment of money heretofore collected in an action at law and now in the hands of the clerk of the court. The forfeiture had already become complete at the time the decree was made providing for the appointment of a receiver or the giving of a bond in the alternative. Judgment of restitution of the premises had already been rendered against defendant. His failure to comply with the judgment was the cause which induced the court to enter its decree for a receiver to conserve a crop to which defendant had no shadow of right. The taking of summary proceedings and judgment thereon amounted in legal effect to a re-entry upon the part of the plaintiff. Sections 9714-9725, 3 Comp. Laws (3 Comp. Laws 1915, §§ 12311-12322); Alexander v. Hodges, 41 Mich. 691 (3 N. W. 187). The affirmance of judgment of restitution now standing unappealed from conclusively shows that the conduct of the defendant was wholly without warrant.

We are of opinion that at the time of the filing of the bill in this case, which was while the crops in question were growing, they were in fact and in law the property of either the plaintiff or of Godfrey, and, Godfrey’s interest having been acquired by the plaintiff, the title was in the plaintiff. Upon this question the following authorities are in point: Heilwig v. Nybeck, 179 Mich. 292 (146 N. W. 141, Am. & Eng. Ann. Cas. 1915D, 356); Wadge v. Kittleson, 12 N. D. 452 (97 N. W. 856); Freeman v. McLennan, 26 Kan. 151; Crotty v. Collins, 13 Ill. 567; Cheney v. Bonnell, 58 Ill. 268. Aside from this fact, the question having been *685raised by the bill and answer filed in this case, the decree ordered a receiver for the crop or the giving of -a bond by the defendant to account therefor. The condition of this bond was that, if the plaintiff should be adjudged entitled to the possession of the farm, the defendant should account. Plaintiff has been adjudged entitled to the possession and defendant has not accounted. It is worthy of note that the decree providing for the appointment of a receiver and the giving of a bond stands unappealed from. The claim now made by counsel for appellee that the court was without jurisdiction to order a bond in the principal case is passed without discussion. That question is now foreclosed by our former opinion. I-Iad defendant seen fit, when suit was brought upon the bond, to apply to the court for an allowance for harvesting and marketing the crops as provided in the decree, such allowance could properly have been made. He did not, however, take this course, and, having elected to stand upon the invalidity of the court’s action, we are of opinion that he cannot now set off against the amount of the bond his expenses for harvesting and marketing the crop.

An examination of the record in this court in the case predicated upon the appeal bond shows that the bond is conditioned upon the payment by Hugh Brown to defendant of “all the rent due or to become due to said complainant for said lands up to the time when said complainant shall obtain possession thereof.” It further discloses that at the time of the trial of that case in the court below there was due as rent from Hugh Brown to David Brown upwards of $5,000. It further appears in that case that no claim was made for the rent of the farm for 1913, except for the use of the buildings and pasture. In directing a verdict in that case in favor of the plaintiff the court said:

“The plaintiff has, under the undisputed testimony in this case, shown a right to rent largely in excess of *686the amount of the bond upon which suit is brought— that is to say, $1,200 — and consequently he would be entitled to a verdict for that amount.”

It is apparent, therefore, that in permitting recovery upon the $1,400 bond given in the case at bar there is no double recovery.

. The decree of the court below is reversed, and a decree will be entered in this court providing for the payment to the plaintiff of the shm now in the hands of the clerk.

{dissenting). The proceedings before the commissioner resulted in a verdict which entitled plaintiff to the possession of the premises. Brown v. Brown, 194 Mich. 578 (161 N. W. 823). He could then elect to sue on the bond or to proceed against the defendant to recover his damages (3 Comp. Laws, § 11176, 3 Comp. Laws 1915, § 13252), but he is not entitled to pursue both remedies (Schellenberg v. Frank, 139 Mich. 183 (102 N. W. 644); and this is so, even though he claims damages which could not be recovered in an action on the bond. {Id.) The judgment rendered for plaintiff in the summary proceeding included all rent due up to, and including the year 1913, and a verdict was directed therein upon the request and statement of plaintiff’s counsel that a judgment for the penalty of the bond would waive any rent due in excess of such penalty. In the present proceeding plaintiff is now seeking to recover the value of the crops raised in 1913, when he has already recovered the rent for that year. Brown v. Brown, supra. My opinion is that there is no further indebtedness to satisfy, and no indebtedness upon which the penalty of the bond in the present case can be applied.

This was the view of the trial court, and I think his conclusion should be affirmed.