transfer of title at a future day. It is only by the transfer at that time that such a contract is fulfilled. Of course, voluntary acceptance of a proffered equivalent at an earlier day would be sufficient to bind the vendee; but where the original intention of the parties to transfer ownership from one to the other at a future day has never been changed, nothing but transfer at that day is a fulfilment of the contract. It should be obvious that a present purchase of the reversion of an estate is a different thing from an executory contract to purchase an estate at a future day. It should be obvious that the intention of the parties is different in the two cases. It is, therefore, in clear disregard of the intention of the parties to hold that, since a court of equity assures to the purchaser in the latter case, to a greater or less extent, a right substantially equivalent to that secured by the purchaser, of a legal future estate, the loss should be similarly adjusted. The intention of the parties is the chief factor in any proper decision. It would be universally admitted that, if the contract expressly provided that the risk should be with one party or the other, this provision would be of controlling force. Parties do not frequently make such express provisions, but they do indicate whether they intend a present transfer of the rights of ownership or a future transfer, and there should be no doubt that they expect all the incidents of ownership, including risk to pass from the seller to the buyer at that time. That time will frequently not be when the legal title is transferred. If, as frequently happens, a purchaser is given immediate possession under his contract, the title is retained merely as security for payment of the price. It is a short way of accomplishing the same end as would be achieved by conveying to the purchaser and taking a mortgage back, as was suggested in regard to similar transactions in sales of personal property. When by the contract the beneficial incidents of ownership are to pass is the time which the parties must regard as the moment of the transfer.

How little the intention of the parties is regarded by the English rule may be seen by comparing a contract to sell a carriage-horse at the end of the season and a contract to sell a race-horse at the end of the season. Equity would grant specific performance of the latter contract, and hence, while the seller sends the animal over the country to race for his own benefit, he would, according to the English rule, do so at the risk of the buyer.1 The carriage

1 No cases seem to have arisen in regard to risk under contracts for the sale of personal property of such a character that the contract would be specifically enforced, but

horse, on the other hand, would remain at the risk of the seller till the end of the season. Surely the intention of the parties as to the time of transfer is the same in both cases. If it be suggested that in both cases the parties contemplate an immediate transfer of ownership, but that in the case of the carriage-horse equity cannot effectuate this intention, in the case of the race-horse it can, the answer is, that if the parties meant a present transfer and lease back during the season they would say so. It would be perfectly easy to express such an intention, and in the case of personalty the intention, if expressed, would be perfectly effectual without any formality.

In truth, the argument for throwing the loss upon the purchaser in an executory contract of sale where possession is not given to the purchaser cannot be put more strongly than this. Equity gives

to the vendee, whatever his intention, assurance far greater than a court of law can give, that the specific subject of the sale will become his, and, if not at the time fixed by the contract, yet with damages sufficient to pay for the delay. In return for this assurance equity demands as a price that the vendee take the risks of accidental loss. The propriety of such a requirement depends on the answer to three questions: Is it in accordance with natural justice? Is it of practical advantage? Is it in conformity with the principles of law in analogous cases?

Views of natural justice vary so much that it is not very profitable to discuss the topic, but certainly in dealing with contracts no general rule can be more just than to aim to follow the intention of the parties, and therefore to throw the loss on the vendee if the parties intend a present transfer, on the vendor if they intend a future transfer.1

no possible theory can be suggested for distinguishing such a contract in this connection from a contract to sell real estate.

1 It is frequently suggested that, as the vendee gets the benefit of any chance improvement of the property, he should therefore suffer for a chance loss. There are several answers to this. In the first place, it proves too much, for it is as applicable to personal property as to real property. In the second place, there are practically no chance improvements analogous to chance destruction. In the third place, it is not certain that the vendee would get the benefit of an advantageous change in the property of such a character as to alter its nature, whether the subject of the sale were realty or personalty. A few analogies suggest themselves. In the case of accession, where the nature of property has been changed by work done upon it, if there has been no wilful conversion, the owner loses his right to the property itself and has only a right to its money value in its original form. Gray's Cases on Property, vol. i. pp. 65104. It is true that in such cases the increased value is due, not to chance, but to

The practical advantages of leaving the risk with the vendor until transfer of possession are obvious. In the first place, it is better in a doubtful case to let a loss lie where it falls. It saves litigation. More important than this principle is the consideration that it is wiser to have the party in possession of property care for it at his peril, rather than at the peril of another. Of course, if the vendor in possession is negligent, and owing to his negligence the property is injured or destroyed, as matter of law the loss is his on any view, but there may be a great difference between not being so negligent as to be liable, and taking such care as would be induced by a great personal stake in the consequences. Then, too, negligence of a vendor in possession is a very difficult thing to prove, and the burden of proving it under the English rule is upon the vendee. A further consideration is the arrangement of the insurance. If the contract immediately throws the risk on the vendee, it practically removes it from an insurer of the property, for the vendor's insurable interest becomes only that of a mortgagee; so that, even if the insurer were forced to pay the vendor, he would be subrogated to the claim of the latter against the vendee. This can hardly be thought a happy result, yet it is one likely to happen after any contract of sale. The vendor ordinarily has insurance at the time of the contract. The vendee can have none, for till after that time he has no insurable interest. In fact, the vendee relies on the vendor's insurance as a protection to the work of the defendant or some one from whom he claims. Nevertheless, the fact remains that the plaintiff had a right to a specific thing against one in possession of it, and lost that right because of the change in its nature and value, and it is this change which is the gist of the defence. On the other hand, it may be suggested that the young of animals which the owner had contracted to sell would presumably pass to the buyer, partus sequitur ventrem. Santos v. Illidge, 6 C. B. N. S. 841, 852; Buckmaster v. Smith, 22 Vt. 203; Clark v. Hayward, 51 Vt. 14. But in case of an agreement to sell a specific animal, or perhaps even a herd, at a future day, this is open to doubt. If the buyer was held entitled to the young, it would be because of a maxim in the Roman law, which, as it threw all risks on the buyer, necessarily gave him all profits. Moreover, the maxim related primarily to status rather than title. In 2 Kent's Com. 361, the learned author says: “If a person hires for a limited period a flock of sheep or cattle of the owner, the increase of the flock during the term belongs to the usufructuary, who is regarded as temporary proprietor. This general principle of law was admitted in Wood v. Ash, Owen, 139, and recognized in Putnam v. Wyley, 8 Johns. 432." One who agrees to sell at a future day, retaining in the mean time the jus fruendi, should have rights at least equal to a lessee. The case of dividends on shares of stock declared between the day of a contract to sell and the time for delivery or transfer may also be suggested. But dividends are not extraordinary accidental accessions. They are normal incidents, analogous to rents and profits of real estate. To some extent the same may be said of the increase of animals.

property. Even if, as is not infrequently provided, the vendor's insurance is by agreement to be assigned to the vendee when the property is transferred, or to be held for his benefit in the mean time, either the vendor or the vendee is not protected by the English law.1

Finally, the doctrine of equity here criticised does not follow the analogy of cases indistinguishable on principle.

In Taylor v. Caldwell, the plaintiff had contracted with the defendant for the hire of a music hall for several specified days. The hall was burned before the time. The action was brought against the owner for damages. The trial court directed a verdict for the plaintiff, but a rule to enter a verdict for the defendant was made absolute. Blackburn, J., at the end of an elaborate opinion, said: "We think, therefore, that the music hall having ceased to exist, without fault of either party, both parties are excused, the plaintiffs from taking the gardens and paying the money, the defendants from performing their promise to give the use of the hall and gardens and other things." 3 It is true the agreement could not have been specifically enforced as a whole, because the defendant had agreed to provide certain things necessary for the proposed entertainments besides the hall; but the principle is stated as a general one, and the case has become a leading authority for similar cases. It has not been suggested that the principle does not apply to a contract that might have been specifically enforced owing to the nature of the property to which it related.

The decisions in regard to interest on the purchase money and the rents and profits of the land are inconsistent both with the doctrine that the contract itself makes the vendee owner in equity, and with the doctrine that the vendor is invariably to be regarded as the owner until the transfer of the legal title.

It is well settled that the vendor is not entitled to immediate

1 "The common practice of inserting in conditions of sale that the purchaser shall have the benefit of any insurance effected by the vendor exposes the vendor to the danger of having to hand over the insurance money to the purchaser, and at the same time of being liable to the insurance company for an equivalent amount of his purchase money." Dart, Vendors and Purchasers (6th ed.), p. 913; see also p. 197. The purchaser is not, without agreement, entitled to the insurance of the vendor. Poole v. Adams, 12 W. R. 683; Rayner v. Preston, 18 Ch. D. 1; King v. Preston, 11 La. An. 95; Clinton v. Hope Ins. Co., 45 N. Y. 454, 465. Gilbert v. Port, 28 Ohio St. 276; Reed v. Lukens, 44 Pa. 200, contra. See also Hill v. Cumberland Valley Co., 59 Pa. 474; Parcell v. Grosser, 109 Pa. 617.

possession, unless the contract expressly provides that he shall have it; 1 nor is he entitled to the rents and profits until the time when he is entitled to possession. This cannot be reconciled with immediate ownership on the part of the vendee. Where the contract specifies a fixed day for the transfer of title, it might be contended that the intent of the contracting parties was thereby indicated, that the vendee should retain the possession and rents and profits till that day. But the law is, presumably, the same whether a day is or is not fixed by the contract for performance, and no argument can be convincing of the propriety of asserting that the vendor is an owner from the making of the contract, and yet is not entitled to the rights of an owner though he has not agreed to surrender them. If an intent is manifest that the vendee shall not have possession or rents and profits, an intent is equally manifest that he shall have no other right or consequence of ownership.

On the other hand, from the time when the vendee is entitled by the contract to possession, he is entitled to the rights of an owner. The vendor, if still in possession, must account for the rents and profits, and the vendee must pay interest on the price.5 This rule shows that interest on the purchase money and rents and

1 Clarke v. Ramuz, [1891] 2 Q. B. 456, 463; Gaven v. Hagen, 15 Cal. 208 ; Gates v. McLean, 70 Cal. 42; Stratton v. California Land Co., 86 Cal. 353; Williams v. Forbes, 47 Ill. 148; Chappell v. McKnight, 108 Ill. 570; Druse v. Wheeler, 22 Mich. 439; Cartin v. Hammond, 10 Mont. 1; Suffern v. Townsend, 9 Johns. 35; Erwin v. Olmsted, 7 Cow. 229; Spencer v. Tobey, 22 Barb. 260, 269; Burnett v. Caldwell, 9 Wall. 290, 293. The law in Alabama is otherwise, Reid v. Davis, 4 Ala. 83; Wimbish v. Montgomery, &c. Assoc., 69 Ala. 575, 578. It has been held in two cases that if the price has been paid and the land is vacant the purchaser is entitled to possession. Miller v. Ball, 64 N. Y. 286; Sherman v. Savery, 2 Fed. Rep. 505.

2 Mackrell v. Hunt, 2 Mad. 34 ".; Rayner v. Preston, 18 Ch. D. 1, II. See also the cases cited in note 4, infra. The same principle is also involved in the cases in the preceding note. Compare Ashurst v. Peck (Ala.), 14 South. Rep. 541, Hundley v. Lyons, 5 Munf. 342.

3 See, however, Hundley v. Lyons, 5 Munf. 342.

4 Acland v. Gaisford, 2 Mad. 28; Wilson v. Clapham, 1 J. & W. 36; Mason v. Chambers, 3 T. B. Mon. 318; Baxter v. Brand, 6 Dana, 296; Hundley v. Lyons, 5 Munf. 342; Dart, Vendors and Purchasers (6th ed.), pp. 286, 505, 708, 732.

5 Powell v. Martyr, 8 Ves. 146; Fludyer v. Cocker, 12 Ves. 25; Roberts v. Massey, 13 Ves. 561; Birch v. Joy, 3 H. L. C. 565; Ballard v. Shutt, 15 Ch. D. 122; Cullum v. Branch Bank, 4 Ala. 21; Boyce v. Pritchett's Heirs, 6 Dana, 231; Bishop v. Clark, 82 Me. 532; Cleveland v. Burrill, 25 Barb. 532; Stevenson v. Maxwell, 2 Comst. 408: Ramsay v. Brailsford, 2 Desaus. 582, 592; Hundley v. Lyons, 5 Munf. 342; Selden v. James, 6 Rand. 464. A qualification is added in the English cases which would probably meet with general assent, that if the vendee's money is lying idle ready for the vendor, and the vendor has notice of this, interest will cease.