profits are not regarded as equivalent to each other, and therefore that an exchange of them is unnecessary. Further, a vendee in possession has every right of ownership not inconsistent with the security of the vendor, and if the vendor intermeddle with the property he is a trespasser. Until possession or the time when possession should be transferred, therefore, under these decisions, the vendor is treated as the owner, and thereafter the vendee is so regarded.3

It is instructive to consider in this connection also the law in regard to leased property. By the early English law it seems clear that even a partial destruction of leased property abated a reserved rent or a part of it proportioned to the injury to the premises. But

1 Miller v. Waddingham, 91 Cal. 377; Baker v. Bishop Hill Colony, 45 Ill. 264; Baldwin v. Pool, 74 Ill. 97; Dart, Vendors and Purchasers (6th ed.), 289. 2 Smith v. Price, 42 Ill. 399.

3 It may be thought that the rule in regard to rents and profits of real estate is inconsistent with the rule in regard to dividends and calls upon stock after a contract for the sale of stock. It is sometimes said that after such a contract the purchaser is entitled to dividends and must pay calls. In the first place, it is to be noticed that in contracts to sell stock it is generally not specific stock which is the subject of the bargain, but any stock which answers a particular description, and it has not been suggested that it makes any difference whether the contract is to sell specific stock or not. Further, undoubtedly a purchaser of stock may as against the seller be entitled to dividends and liable for calls though the stock has not been transferred to his name, and it is probable that the presumption that an immediate transfer is intended a presumption which applies to sales of other personal property — applies to sales of stock also. The purchaser is therefore presumably entitled to an immediate transfer, and to all future dividends, and is immediately liable for all calls; but it has not yet been decided that after a contract to sell stock at a future day the purchaser is entitled to dividends and liable for calls and assessments in the mean time. The cases on dividends are collected in Cook, Stock and Stockholders, § 539. As to calls, see Coles v. Bristowe, L. R. 6 Eq. 149, 4 Ch. 3; Hawkins v. Maltby, 4 Ch. 200. The case of calls is somewhat different from that of dividends. Clearly if a purchaser contracts for shares half paid up, he should not be entitled to full paid shares at the same price.

4 The leading case is Richards le Taverner's case, Dyer, 56 a: “A man makes a lease for years of land and of a stock of sheep, rendering certain rent, and all the sheep died: it was asked upon the indenture of Richards le Taverner, whether this rent might be apportioned? And some were of opinion that it should not, although it is the act of God, and no default in the lessee or lessor; as if the sea gain upon part of the land leased, or part is burned with wildfire, which is the act of God, the rent is not apportionable, but the entire rent shall issue out of the remainder; otherwise is it if part be recovered or evicted by an elder title, then it is apportionable. And of this opinion were Bromeley, Portman, Hales, Serjeants, Luke, Justice, Brooke and several of the Temple. But Marvyne, Brown, Justices, Townshend, Griffith, and Foster e contra; but all thought it was good equity and reason to apportion the rent. And afterwards this case was argued in the readings by More in the following Lent. And it seemed to him, and to Brooke, Hadley, Fortescue

where the lessee expressly covenanted to pay the rent he must keep his covenant, though the leased property suffered injury by accident. In the present century the landlord has been allowed to

and Brown, Justices, that the rent should be apportioned because there is no default in the lessee.

The statements in this case as to the effect of gain by the sea or burning by wildfire are cited in the leading case of Paradine v. Jane, Aleyn, 26, and frequently since, as authority, but it certainly does not appear what view the majority of the court held. In Rolle's Abridgment, 236, it is said that if a man leases land and part is surrounded by fresh water, there will be no apportionment because the tenant shall have the fish and may be expected to regain the land. So if the land is burned over by wildfire, but if part of the land is surrounded by salt water, there will be an apportionment, because any one may fish in the water, and there is no reasonable possibility of regaining the land. The substance of this is repeated in 6 Bacon's Abridgment (6th ed.), 49, 50, and in Chief Baron Gilbert's treatise on Rent, 186, 187 (1758). But see the case of Paradine v. Jane, Aleyn, 26, in the following note.

1 Paradine v. Jane, Aleyn, 26, was an action of debt on a lease rendering rent. The defendant pleaded that Prince Rupert, an alien enemy with a hostile army, had expelled him and kept him out of possession. This was held insufficient. "And this difference was taken, that where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him; ... but when the party by his own contract creates duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. And therefore, if the lessee covenant to repair a house, though it be burnt by lightning, or thrown down by enemies, yet he ought to repair it. Dyer 33 a, 40 E. 3. 6. h. Now the rent is a duty created by the parties upon the reservation, and had there been a covenant to pay it, there had been no question but the lessee must have made it good, notwithstanding the interruption by enemies, for the law would not protect him beyond his own agreement, no more than in the case of reparations. This reservation then being a covenant in law, and whereupon a covenant hath been maintained (as Rolle said), it is all one as if there had been an actual covenant."

After this it seems not to have been doubted that at least if the tenant had covenanted to pay rent he would not be excused at law. Monk v. Cooper, 2 Ld. Ray. 1477; s. c. 2 Strange, 763; Shubrick v. Salmond, 3 Burr. 1637, 1640; Pindar v. Ainsley (Lord Mansfield, 1763), 1 T. R. 312; Belfour v. Weston, 1 T. R. 310, Baker v. Holtpzaffell, 4 Taunt. 45; Izon v. Gorton, 5 Bing. N. C. 501; Arden v. Pullen, 10 M. & W. 321. And the law in this country is generally the same. Osborn v. Nicholson, 13 Wall. 654, 660; Warren v. Wagner, 75 Ala. 188; Cowell v. Lumley, 39 Cal. 151; Robinson V. L'Engle, 13 Fla. 482; Coy v. Downie, 14 Fla. 544; White v. Molyneux, 2 Ga. 124; Lennard v. Boynton, 11 Ga. 109; Pope v. Garrard, 39 Ga. 471; Peck v. Ledwidge, 25 Ill. 109; Smith v. McLean, 22 Ill. App. 451, 454; Womack v. McQuarry, 28 Ind. 103; Skillen v. Waterworks Co., 49 Ind. 193, 198; Harris v. Heackman, 62 Ia. 411; Redding v. Hall, 1 Bibb 536; Helburn v. Mofford, 7 Bush, 169; Lamott v. Sterett, 1 Har. & J. 42; Fowler v. Bott, 6 Mass. 63; Kramer v. Cook, 7 Gray, 550, 553; Gibson v. Perry, 29 Mo. 245; Hallett v. Wylie, 3 Johns. 44; Gates v. Green, 4 Paige Ch. 355; Patterson v. Ackerson, I Edw. Ch. 96; Howard v. Doolittle, 3 Duer, 464; Graves v. Berdan, 26 N. Y. 498, 500; Hilliard v. New York, &c. Co., 41 Ohio St. 662; Harrington v. Watson, II Ore. 143; French v. Richards, 6 Phila. 547 ; Diamond v. Harris, 33 Tex. 634; Cross v. Button, 4 Wis. 468. But the law is otherwise in South Carolina, Ripley v.

recover in an action for use and occupation, though the premises were entirely destroyed; and now it is not likely that much weight would be given in the form of the lease, if it contained no proviso relieving the tenant. In one or two early cases it was intimated that the tenant might have relief in equity from his legal liability, but these cases have been overruled.3

In England no distinction is made between partial destruction of the leased premises as where leased land remains after the calamity, and total destruction as where the lease is of a single room or story of a building without land, and the entire building is destroyed. In the latter case, as well as the former, the tenant must pay rent.1 In this country, however, the tenant is relieved in case of total destruction of the leased premises. It is difficult to see how total

Wightman, 4 McC. 447; Coogan v. Parker, 2 S. C. 255; and perhaps in Kansas, Whitaker v. Hawley, 25 Kan. 674. It is immaterial that the lessor had insurance on the property, and has collected the money and refuses to rebuild. Skillen v. Water Works Co., 49 Ind. 193, 198; Bussman v. Ganster, 72 Pa. 285; Hoy v. Holt, 91 Pa. 88, 90. And if the lessee builds he has no right to the insurance. Ely v. Ely, 80 Ill. 532. See also Leeds v. Cheetham, I Sim. 146; Lofft v. Dennis, 1 E. & E. 474.

1 Izon v. Gorton, 5 Bing. N. C. 501. And see Packer v. Gibbins, 1 Q. B. 421.

...

2 In Harrison v. Lord North, Ch. Cas. 83, the plaintiff sought to be relieved from payment of rent for a house which was taken from his possession during the civil war for use as a hospital. For the plaintiff it was argued that this was not like an ordinary case of ouster by a third person, for there was no remedy over. For the defendant it was said: "The plaintiff hath a pitiful case, but not such as this court can relieve, for the law and equity is all one in this case, and cited the case of Carter and Cummins about two years since in this court, where the plaintiff being a tenant of a wharf, which by an extraordinary flood was carried all away, brought his bill to be relieved against paying of his rent, but all the relief he had was only against the penalty of the bond, which was broken for non-payment of rent; and the defendant ordered only to bring debt for his rent... The Lord Chancellor (Sir Orlando Bridgeman) took time to advise; but declared if he could he would relieve the tenant."

In Brown v. Quilter, Ambler, 619, Lord Chancellor Northington expressed surprise that it was considered so clear that the landlord could recover rent at law, and said that "when an action is brought after the house is burnt down, there is a good ground of equity for an injunction till the house is rebuilt." The bill was in fact dismissed because the landlord in his answer offered to cancel the lease, and the tenant declined to accept a cancellation. The same Chancellor is said to have proceeded upon the same theory in Cam. den v. Morton, 2 Eden, 219; and Lord Apsley adopted it in Steele v. Wright, cited in 1 T. R. 708. See also Weigall v. Waters, 6 T. R. 488, 489, per Lord Kenyon.

8 Hare v. Groves, 3 Anstr. 687; Holtzapffell v. Baker, 18 Ves. 115; Leeds v. Chatham, 1 Sim. 146, 150. See to the same effect Redding v. Hall, 1 Bibb, 536; Harrison v. Murrell, 5 T. B. Mon. 359; Lamott v. Sterett, 1 Har. & J. 42; Hicks v. Parham, 3 Hayw. (Tenn.) 224.

4 Izon v. Gorton, 5 Bing. N. C. 501.

5 McMillan v. Solomon, 42 Ala 356; Ainsworth v. Ritt, 38 Cal. 89; Alexander v. Dorsey, 12 Ga. 12; Womack v. McQuarry, 28 Ind. 103; Shawmut Nat. Bank v. Boston,

destruction of the property leased should have any effect upon a covenant to pay rent if partial destruction has none. The only ground for relieving in the former case is because there has been a failure of consideration. If this is true, it follows that there is a partial failure of consideration in the latter case.

In one case it was intimated that a calamity occurring before the tenant was entitled to possession under the lease, although not causing the total destruction of the property, entitled the tenant to rescind the lease,1 but this distinction can hardly be supported.

A contract to make a lease should stand on the same footing as a contract to convey a freehold estate, though this is not clearly admitted in the cases.2

The distinction between an actual lease and a contract is obvious. In the first case the lessee acquires by the deed an actual legal estate. If that is what he bargained for, it is clear that immediately after the conveyance he has received the consideration for the rent. No further performance is due from the lessor. This would be abundantly clear if rent were customarily paid in a lump sum on execution of the lease, instead of in instalments at stated periods. It is, therefore, not a little odd to find it universally admitted that it is a harsh rule of strict law which requires a tenant 118 Mass. 125, 128; Graves v. Berdan, 39 Barb. 100, 26 N. Y. 498: Hilliard v. New York, &c., 41 Ohio St. 662, 666; Harrington v. Watson, 11 Ore. 143, 145; Hahn v. Baker Lodge, 21 Ore. 30, 34; Conn. Mut. Life Ins. Co. v. United States, 21 Court of Claims, 195, 201. But in Kentucky the English law is followed, Helburn v. Mofford, 7 Bush, 169.

1 Wood v. Hubbell, 10 N. Y. 479, 487. Compare Edwards v. McLean, 122 N. Y. 302.

2 In Bacon v. Simpson, 3 M. & W. 78, it was held that a plaintiff who contracted to assign a lease of a furnished house could not recover damages from one who contracted to buy it, and refused to perform on account of partial destruction because he himself was not ready to perform. It is true the action was at law, and the lease included personal as well as real property, but the decision is not rested on these grounds. In Counter v. Macpherson, 5 Moo. P. C. 83, the landlord agreed to put the premises in repair and put up an additional building. Before this work was completed, the premises were partially burned. The landlord was held not entitled to specific performance because the work was not completed, and this seems a sufficient reason. Huguenin v. Courtenay, 21 S. C. 403, was a suit by the seller for specific performance of an agreement for the sale of a lot of land on the shore of an island, the fee of which was nominally in the State, the occupants having legally an estate from year to year and paying as rent one penny annually, but having for practical purposes the absolute ownership. Before the day appointed for transfer of title the sea washed away a portion of the lot. The court, though expressing assent to the doctrine of Paine v. Meller, 6 Ves. 349, gave judgment for the defendant, and distinguished the case of a sale of a leasehold estate. On appeal the decision was affirmed. The decision was clearly right on any view, because the agreement was subject to a condition which so far as appeared had not been performed, and the appellate court made, this a secondary ground of decision.

to pay rent when the leased premises are destroyed, a rule from which it was decided only after some conflict that equity would not relieve, to find that in New York by statute, and in South Carolina by judicial decisions,2 a tenant, the actual owner of a legal estate, is relieved from liability by substantial destruction of the premises, and that almost universally in this country total destruction of the leased premises terminates the tenant's liability, and yet to find frequently, in these same jurisdictions, that one who has agreed to buy real estate in the future, though perhaps discharged at law by accidental injury to the property, is regarded by a court of equity as already having such an ownership in the property that he must pay for it. The facts and opinion of the court in Huguenin v. Courtenay are suggestive in this connection. The court says, in substance, if a tenant is relieved by destruction of the leased premises, he surely cannot be liable if the premises are destroyed after an agreement to lease in the future; and a lease is a lease though it be for 999 years and whatever the rent; but if, instead of a lease substantially equivalent to a fee, the subject matter of the agreement were in fact a fee, the seller would be entitled to the price.

Doubtless the reason why a tenant is relieved to the extent that he is in case of accidental injury or destruction to the leased premises, is because the parties to a lease are apt to regard it rather as a contract than as a conveyance. "A lease is in one sense a running rather than a completed contract. It is an agreement for a continuous interchange of values between landlord and tenant, rather than a completed contract."4 If this were granted it would only make a lease analogous to a contract for the sale of real estate, and if the tenant is relieved in the former case, the vendee should be in the latter. Yet the same court which exhibited such tenderness for the lessee as thus to construe a lease has twice decided that a vendee is liable to pay to the vendor the contract price for land

1 Chap. 345 of Laws of 1860 provides "the lessees or occupants of any building which shall, without any fault or neglect on their part, be destroyed or be so injured by the elements or any other cause as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof after such destruction or injury, unless otherwise expressly provided by written agreement or covenant; and the lessees or occupants may thereupon quit and surrender possession of the leasehold premises and of the land so leased or occupied." For the construction of this statute, see Suydam v. Jackson, 54 N. Y. 450; Butler v. Kidder, 87 N. Y. 98; Edwards v McLean, 122 N. Y. 302.

2 Ripley v. Wightman, 4 McC. 447; Coogan v. Parker, 2 S. C. 255.

8 21 S. C. 403.

4 Whitaker v. Hawley, 25 Kan 674, 687, per Brewer. J.