the loss falls upon the vendor. So too if the loss was due to the vendor's own negligence.1

It has not been considered whether partial destruction of an estate stands on any different footing from total destruction, but no such distinction seems tenable. On any true construction of a promise to convey an estate, the promise is no more fulfilled by conveying the land without the house than by conveying nothing. And any reasoning which requires the vendee to pay when the vendor materially though excusably fails to fulfil his promise must require payment when the vendor totally and equally excusably fails to perform. In a Kansas decision the question of total destruction seems involved. In that case the estate was taken by eminent domain so that the vendor could convey nothing at all. It was held that the vendee must pay the price, becoming thereby of course entitled to the damages payable on account of the taking.

In jurisdictions at least where equitable defences and replications are allowed at law, there should be no difference in the effect of a decision on this point by a court of law and a decision of a court of equity. If the promise of the buyer is made expressly conditional on receiving the property in good order, a court of equity can disregard the expressed intent of the parties no more than a court of law. On the other hand, if the promise of the buyer is in terms absolute, this promise should not be held in a court of law subject to an implied condition of performance by the seller, if the contrary is held by a court of equity. The basis of implied conditions is that there is a failure of the consideration for a promise if the performance promised in return is not given. Whether there has been such a failure of consideration is a question which should be decided in the same way by a court of law and a court of equity. If it is proper for a court of equity to hold that a vendee before conveyance is in the owner in equity and hence liable for the price, a court of law should hold either that there are no implied conditions that the legal title to the property shall be transferred, and that the property shall be in substantially the same state, or that, if there are such conditions, accidental destruction or injury of the property is an excuse for non-performance. In fact, though most of the decisions holding the vendee not liable have been made by courts of law, and all the contrary decisions by courts of equity or by courts administering both law and equity, it is not probable that

1 Marks v. Tichenor, 85 Ky. 536, 538.

2 Gammon v. Blaisdell, 45 Kan. 221.

the result of the former cases at least would have been different had the proceedings been in equity. It is nearly certain that the courts of Massachusetts, Maine, and New Hampshire would give vendors no more relief in equity than at law.1

In support of the proposition forcibly stated by Lord Eldon, 'The estate from the sealing of the contract is the real property of the vendee," it is pointed out that from that time the property may be conveyed or devised as real estate by the vendee, that it will pass to his heir, that his widow will get dower if dower in equitable estates is allowed,5 that his family may acquire rights of homestead at once, that the vendor if still in possession must take reasonable care of the property and is liable for waste, that the vendor's creditors cannot reach the real estate, that on the other hand the vendor's interest is immediately treated as personalty 9 and passes to his executors, his wife not having dower,10 that under the old English law the contract was in equity regarded as a revocation of a prior devise,11 and under the modern English and Ameri

1 In Poole v. Adams, 12 W. R. 683, Kindersley, V. C., said: “Whatever the rule of this court might be as to enforcing specific performance in a case where the property was burnt down, it was clear that the contract remained good at law, and that the purchaser might have been sued for breach in refusing to complete and pay his purchase money." This is not the usual line of argument, however.

2 Seton v. Slade, 7 Ves. 265, 274.

The vendee's interest was held to pass under a devise of the testator's freehold estate. Greenhill v. Greenhill, 2 Vern. 679; Prec. Ch. 320. See also Langford v. Pitt, 2 P. Wms. 629.

+ Langford v. Pitt, 2 P. Wms. 629; Seton v. Slade, 7 Ves. 265, 274; Musham v. Musham, 87 Ill. 80; Champion v. Brown, 6 Johns. Ch. 398; Hathaway v. Payne, 34 N. Y. 92, 103; Thomson v. Smith, 63 N. Y. 301, 303.

5 Bailey v. Duncan's Repr., 4 Mon. 256; Rowton v. Rowton, I Hen. & Munf. 92. 6 Chopin v. Runte, 75 Wis. 361. In this case the vendee had possession, and it may

be doubted whether the same result would otherwise have been reached.

7 Phillips v. Silvester, L. R. 8 Ch. 173; Earl of Egmont v. Smith, 6 Ch. D. 469; Royal Society v. Bomash, 35 Ch. D. 390; Clarke v Ramuz [1891], 2 Q. B. 456; Holmberg v. Johnson, 45 Kan. 197. Compare Hellreigel v. Manning, 97 N. Y. 56. See also Dart, Vendors and Purchasers (6th ed.), 733; Cloyd v. Steiger, 139 Ill. 41.

8 Finch v. Earl of Winchelsea, 1 P. Wms. 277; Jackson v. Snell, 34 Ind. 241; Hampson v. Edelen, 2 Har. & J. 64; Houston v. Nowland, 7 G. & J. 480; Lane v. Ludlow, 6 Paige, 316, n.; Moyer v. Hinman, 13 N. Y. 180, 190; Siter's Appeal, 26 Pa 178; Blackmer v. Phillips, 67 N. C 340.

9 Curre v. Bowyer, 5 Beav. 6, n. (b); Thomas v. Howell, 34 Ch. D. 166; Moore v. Burrows, 34 Barb. 173; Smith v. Gage, 41 Barb. 60; Thomson v. Smith, 63 N. Y. 301, 303; Keep v. Miller, 42 N. J. Eq. 100; Kerr v. Day, 14 Pa. St. 112, 114. And see a valuable note in 42 N. J. Eq. 100.

10 Lunsford v. Jarrett, 11 Lea, 192, 196.

11 Cotter v. Layer, 2 P. Wms. 623; Knollys v. Alcock, 5 Ves. 648, 654; Bennett v. Lord Tankerville, 19 Ves. 170, 178; Farrar v. Earl of Winterton, 5 Beav. 1; Re Manchester Co., 19 Beav. 365.

1

can law the devisee or heir being compelled to convey to the purchaser, though the price is paid to personal representatives, 1 that in insurance law the vendee is regarded as the owner, 2 and finally in a multitude of cases the vendor is said to be trustee for the vendee.3

Most of these decisions are entirely explicable on the ground of equitable conversion. The vendor has indicated an intent to convert his real estate into personalty, and the vendee an intent to convert personal estate into real estate, and there is no reason why the intent should not be regarded. The question is not ordinarily at what time the conversion is to be dated, but whether there is any conversion. Where the former question arises, it is noticeable that the profits of land under contract of sale belong to the vendor's heir until the day fixed for conveyance. Unquestionably the vendee has an interest in the property which equity will and should protect by enjoining if necessary any dealing with the property inconsistent with the contract. It should be equally clear that the vendor has likewise an interest in the property, and, if the vendee is in possession, he also may be enjoined from committing waste.5 Many of the insurance cases seem inexplicable on any view, and it is not true that the vendor is trustee for the vendee, and this is

1 Watson v. Mahan, 20 Ind. 223; Judd v. Mosely, 30 Ia. 423; Newton v. Swazey, 8 N. H. 9; Moore v. Burrows, 34 Barb. 173; Newport Waterworks v. Sisson (R. I.), 28 At. Rep. 336.

2 A policy of insurance issued to the vendee was held valid, though the policy was conditioned to be void unless the insured had the entire, unconditional, and sole ownership. Rumsey v. Phoenix Ins. Co., 17 Blatch. 527; Ætna Fire Ins. Co. v. Tyler, 16 Wend. 385; Pelton v. Westchester Fire Ins. Co., 77 N. Y. 605; Millville Fire Ins. Co. v. Wilgus, 88 Pa. 107; Imperial Fire Ins. Co. v. Dunham, 117 Pa. 460; Elliott v. Ashland Mut. Ins. Co., 117 Pa. 548. See also Hough v. City Ins. Co., 29 Conn. 10. And see Biddle on Insurance, § 686. But in all these cases the vendee had possession, and this is strongly relied on as a ground of decision.

8 See notes 7 and 8, infra.

4 Lumsden v. Fraser, 12 Sim. 263.

Moses v. Johnson, 88 Ala. 517; Miller v. Waddingham, 91 Cal. 377.

6 "An unpaid vendor is a trustee in a qualified sense only, and is so only because he has made a contract which a court of equity will give effect to by transferring the property sold to the purchaser." Rayner v. Preston, 18 Ch. D. 1, 6, per Cotton, L. J. "With the greatest deference it seems wrong to say that one is a trustee for the other. The contract is one which a court of equity will enforce by means of a decree for specific performance. But if the vendor were a trustee of the property for the vendee, it would seem to me to follow that all the product, all the value of the property received by the vendor from the time of the making of the contract ought, under all circumstances, to belong to the vendee. What is the relation between them, and what is the result of the contract? Whether there shall ever be a conveyance depends on

occasionally recognized, yet the courts continue the use of this misleading word.1

In determining the propriety of throwing the risk on the purchaser from the date of the contract, the primary question is not, it should be observed, whether the vendor or the vendee may be called owner with the greater propriety pending performance of the contract, still less whether the vendee may be called owner in equity and the vendor a trustee. The vendee, when sued, is sued on a promise to pay money. This promise he gave in return for a counter promise. Unless a fundamental principle of the law of two conditions; first of all, whether the title is made out, and, secondly, whether the money is ready; and unless those two things coincide, at the time when the contract ought to be completed, then the contract never will be completed, and the property never will be conveyed. But suppose at the time when the contract should be completed, the title should be made out and the money is ready, then the conveyance takes place. Now it has been suggested that when that takes place, or when a court of equity decrees specific performance of the contract, and the conveyance is made in pursuance of that decree, then by relation back the vendor has been trustee for the vendee from the time of the making of the contract. But again, with deference, it appears to me that if that were so, then the vendor would in all cases be trustee for the vendee of all the rents which have accrued due, and which have been received by the vendor between the time of the making of the contract and the time of completion; but it seems to me that that is not the law. Therefore, I venture to say that I doubt whether it is a true description of the relation between the parties to say that from the time of the making of the contract, or at any time, one is ever trustee for the other. They are only parties to a contract of sale and purchase, of which a court of equity will under certain circumstances decree a specific performance." Rayner v. Preston, 18 Ch. D. 1, 18, per Brett, L. J. See also criticism of this use of the word trustee in 36 Sol. Journal, 775 and 784. It has been suggested that when the purchase-money has been paid the vendor may be properly called a trustee. 2 HARVARD LAW REVIEW, 421. It is submitted that even then the vendor is not a bare trustee for the vendee, unless by the contract the vendee is entitled to immediate possession. And except in that case the risk should remain with the seller. Of course where the price is paid the vendee is ordinarily entitled to immediate possession, but this is not necessarily the case. "Of course

1 In Royal Society v. Bomash, 35 Ch. D. 390, 397, Kekewich, J., says: we all know that he is only a trustee in a modified sense. There are many things to be done before he becomes a mere trustee; but still Lord Selborne (in Phillips v. Silvester, L. R. 8 Ch. 173, 177) says he is a trustee, and I have no doubt that that is the right position, and I so decide."

It would seem that a trustee only in a modified sense would better be called by some other name, the name of vendor, for instance.

How little weight is to be given to the loose language used in this matter is shown by the fact that it is common to find it also said that the vendee is trustee of the purchase money, or the vendor is owner of it in equity. Two recent illustrations of this in quarters where it might not have been expected may be found in Cross v. Bean, 83 Me. 61, 64, and in Pomeroy's Equity Jurisprudence, § 368. And see Fry, Spec. Perf. (3d ed.), § 1396. In Maine, though it is said in Cross v. Bean that vendor and vendee are trustees for each other, it is also held in the strongest way that the risk is on the vendee. Gould v. Murch, 70 Me. 288.

contracts

is to be set

a principle founded on natural justice aside, the vendee cannot be called upon to perform his promise unless the vendor performs his counter promise, in substance at least, and it matters not that non-performance of the counter promise is excused by the impossibility of performance.1 The vendor contracted to give a complete legal title, with all which that implies, the right to dispose of the property, jus disponendi, and the right of present enjoyment thereof, jus fruendi. Unless the vendee acquires by the contract itself substantially this, it is at variance with sound legal principles to hold him liable on his own promise after destruction of the premises. It does not advance the argument to discuss equitable ownership unless it be also considered how far that is the equivalent of the legal ownership for which the vendor contracted. In the United States, at least, the vendee does by the contract itself, as soon as it is recorded, acquire the full jus disponendi, the substantial equivalent of a legal reversionary interest from the time when performance is due. In England he does not get nearly as much as this, for the vendor may by selling to a bona fide purchaser for value without notice deprive the vendee of all right to the property. If the vendor wishes to do this, it is perfectly easy for him to do it. The vendee's right, therefore, is wholly dependent on the honesty of the vendor. Such a right is not the substantial equivalent of a legal title. Moreover, neither in the United States nor in this country does the vendee acquire by the contract the second great incident of ownership, — the right of present enjoyment. This may be a matter of great importance. If the contract is to convey at a day far in the future, it seems impossible to say in any sense that the vendor receives at the moment of the contract the equivalent of what he bargained for. If the day fixed for conveyance is near at hand, it is true, the possession is of less importance, but it is still to be considered, and a rule which is laid down as a general one must be able to stand the strain of hard cases.

Though the arguments presented in the preceding paragraph are important, they do not touch the fundamental difficulty with the English rule, which is, that, whatever rights a vendee may acquire immediately after the contract, and even if such rights were the substantial equivalent of a legal title, the contract is for the

1 Taylor v. Caldwell, 3 B. & S. 826; Jackson v. Union Marine Ins. Co., L. R. 10 C. P. 125; Poussard v. Spiers, 1 Q. B. D. 410; Greene v. Linton, 7 Porter, 133; Remy v. O'ds (Cal.), 34 Pac. Rep. 216; Johnson v. Walker, 155 Mass. 253.