version of the proceeds of sale into land,225 and the same effect has been given to an action brought to recover the land as such.326

108. Conversion by paramount authority.

The doctrine of conversion thus far considered involves the treatment of property as converted before actual conversion takes place. In some cases, however, where property is actually converted under either statutory or judicial authority, it will be treated as not converted, but as retaining its original form. 227 This doctrine has been applied in the case of the property of persons not sui juris, as infants or lunatics, which, though actually converted by order of court, either by sale of land or investment of money in land or in improvements thereon, has been regarded as retaining its original character as between such owners' heirs and personal representatives,228 unless, it seems, the conversion would be for the benefit of the infant or lunatic.229

Likewise, in the case of a sale of land by order of court for any purpose, equity will regard the land as converted into money only to the extent necessary for the purpose of

225 Ridgeway v. Underwood, 67 Ill. 419; Swan ▼. Goodwin, 3 Duv. (Ky.) 298; Beal v. Stehley, 21 Pa. St. 376.

220 De Vaughn v. McLeroy, 82 Ga. 687.

227 3 Pomeroy, Eq. Jur. § 1167; notes to Fletcher v. Ashburner, 1 White & T. Lead. Cas. Eq. 1142.

228 Lewin, Trusts, 1096, 1101; notes to Fletcher v. Ashburner, 1 White & T. Lead. Cas. Eq. 1143 et seq.; Foster v. Foster, 1 Ch. Div. 588; Wetherill v. Hough, 52 N. J. Eq. 683; Collins v. Champ's Heirs, 15 B. Mon. (Ky.) 118, 61 Am. Dec. 179; Williams' Case, 3 Bland, Ch. (Md.) 186; Wood v. Recves, 5 Jones, Eq. (N. C.) 271. See Hay's Appeal, 52 Pa. St. 449. It is so provided by statute in New York in regard to an infant's lands. Wells v. Seeley, 47 Hun (N. Y.) 109.

220 Notes to Fletcher v. Ashburner, 1 White & T. Lead. Cas. Eq. (7th Eng. Ed.) 365; Ex parte Phillips, 19 Ves. 123; In re Mary Smith, 10 Ch. App. 79; Lloyd v. Hart, 2 Pa. St. 473, 45 Am. Dec. 612.

the conversion, and the surplus will be regarded as, retaining its previous character, in order to determine the persons entitled thereto.280

When land is taken for public purposes under the power of eminent domain, and the land is held in trust, or belongs to an infant or a lunatic, the sum awarded as compensation will be regarded as land.231

§ 109. Resulting interests under trusts for conversion.

We have previously considered the rule that, upon the total or partial failure of a gift in trust, there will be a resulting trust in favor of the testator's representatives or heirs, or, in the case of a conveyance inter vivos, to the grantor himself.282 The question now arises whether, if, by the terms of the gift, there were positive directions for conversion, the property will result in its original form, or in that into which it was to be converted, and to whom, as a consequence, it will result.

280 3 Pomeroy, Eq. Jur. § 1167; Fletcher v. Ashburner, 1 White & T. Lead. Cas. Eq. 1150; Sayers' Appeal, 79 Pa. St. 428; Pennell's Appeal, 20 Pa. St. 515; Lerch v. Oberly, 18 N. J. Eq. 575; Turner v. Dawson, 80 Va. 841. But see Jones v. Jones, 1 Bland, Ch. (Md.) 443, 18 Am. Dec. 327; Jones v. Walkup, 5 Sneed (Tenn.) 135.

As to the time of a conversion effected by an order for the sale of land, it is held in this country that it takes place only on the ratification of the sale and compliance by the purchaser with the terms thereof. Newcomer v. Orem, 2 Md. 297, 56 Am. Dec. 717; Early v. Dorsett, 45 Md. 462; In re Biggert, 20 Pa. St. 17; Jones v. Walkup, 5 Sneed (Tenn.) 135. In England, it is held to date from the order for sale. Hyett v. Mekin, 25 Ch. Div. 735.

231 3 Pomeroy, Eq. Jur. § 1167; Gibson v. Cooke, 1 Metc. (Mass.) 75; Simonds v. Simonds, 112 Mass. 157; Wetherill v. Hough, 52 N. J. Eq. 683; Durando v. Durando, 23 N. Y. 331. And see Holland v. Cruft, 3 Gray (Mass.) 162. In England, the character of the fund realized from the land in such cases seems to be determined by the wording of the particular act. See notes to Fletcher v. Ashburner, 1 White & T. Lead. Cas. Eq. 1151.

232 See ante, § 93.

Where the purpose for which land is directed to be converted into money, or for which money is directed to be converted into land, entirely fails, whether the direction is contained in a will or in an instrument inter vivos, the land or the money results to the donor or his successors in interest in its original form, the direction for conversion being in such case utterly ineffective for any purpose; and the heir or the personal representative takes, according as it may be, real property or personalty.233

-Partial failure of disposition by will.

In the case of a partial failure of the purposes for which a direction to convert was given by will, a conversion is still necessary for the purposes which have not failed. In such case, if the conversion directed was of land into money, the surplus undisposed of will generally result to the heir or other person entitled to testator's land, and not to the person entitled to his personalty,234 and the same result generally follows if the purpose for which the sale is directed exhausts only part of the beneficial interest; the surplus, whether the sale actually takes place or not, being regarded as still impressed with the character of land for the purpose of determining the person entitled to receive it.235

238 3 Pomeroy, Eq. Jur. § 1170; 1 Jarman, Wills, 585 et seq.; Ackroyd v. Smithson, 1 White & T. Lead. Cas. Eq. 1181, 1187, 1197, notes; Ripley v. Waterworth, 7 Ves. Jr. 425 Read v. Williams, 125 N. Y. 560, 21 Am. St. Rep. 748; Hawley v. James, 7 Paige (N. Y.) 213, 32 Am. Dec. 623; Rizer v. Perry, 58 Md. 112; Roy v. Monroe, 47 N. J. Eq. 356; Moore v. Robbins, 53 N. J. Eq. 137; Appeal of Luffberry, 125 Pa. St. 513.

234 1 Jarman, Wills, 587; Ackroyd v. Smithson, 1 Brown, Ch. 503, 1 White & T. Lead. Cas. Eq. 1171; Cogan v. Stephens, 1 Beav. 482, note; Craig v. Leslie, 3 Wheat. (U. S.) 563; Wood v. Keyes, & Paige (N. Y.) 365.

235 1 Jarman, Wills, 585; Hilton v. Hilton, 2 MacArthur, D. C. 70; Richards v. Miller, 62 Ill. 417; Cronise v. Hardt, 47 Md. 433; Cook's Ex'r v. Cook's Adm'r, 20 N. J. Eq. 375; Burr v. Sim, 1 Whart (Pa.) 252, 29 Am. Dec. 48.

The heir or general devisee, however, taking such resulting portion, takes it, not as land, but as money, so that on his death it will pass to his personal representatives, and not to his heirs.236

If there appear an intention on the part of the testator that the conversion take place not only for the purposes named in the will, but for all purposes whatever, then the surplus will result to the personal representative, and such an intention, it is said, is more easily and readily inferred in this country than in England.287

In the case of a direction in a will for the conversion of money into land, any undisposed-of portion of the interest will result to the personal representative for the next of kin or residuary legatee,238 and will belong to them as realty or personalty, according to its nature in the view of a court of equity at the time it results.239

-Partial failure of disposition inter vivos.

In the case of a partial failure of the purpose for which a conversion was directed by an instrument inter vivos, even though conversion has not actually taken place, the surplus results to the grantor or settlor in its converted character,

236 1 Jarman, Wills, 596; 3 Pomeroy, Eq. Jur. § 1171; Ackroyd v. Smithson, 1 White & T. Lead. Cas. Eq. 1204; Smith v. Claxton, 4 Madd. 484; Wright v. Wright, 16 Ves. Jr. 188; Cronise v. Hardt, 47 Md. 433; Newby v. Skinner, 1 Dev. & B. Eq. 488, 31 Am. Dec. 397; Pennell's Appeal, 20 Pa. St. 515. And see Holland v. Adams, 3 Gray (Mass.) 188, 191.

237 3 Pomeroy, Eq. Jur. § 1171, note; 1 Jarman, Wills, 598, Bigelow's note. See Craig v. Leslie, 3 Wheat. (U. S.) 563; Read v. Williams, 125 N. Y. 560, 21 Am. St. Rep. 748; Roy v. Monroe, 47 N. J. Eq. 356; Hand v. Marcy, 28 N. J. Eq. 59.

288 Cogan v. Stephens, 1 Beav. 482, note, 5 Law J. Ch. 17; Phillips ▼. Ferguson, 85 Va. 509, 17 Am. St. Rep. 78; Hawley v. James, 5 Paige (N. Y.) 318.

289 Lewin, Trusts (10th Ed.) 166; Curteis ▼. Wormald, 10 Ch. Div. 172, 6 Gray's Cas. 818.

or, in case of his death, to his legal successor in interest, as determined by such character; the rule thus differing from that usually applicable in the case of a partial conversion by will.240

IV. INTERESTS ARISING UNDER CONTRACTS OF SALE

A contract for the sale of land, of which equity would decree specific performance, is there regarded as making the vendor a trustee for the vendee as regards the land, and the vendee a trustee for the vendor as regards the purchase money.

Such a contract also, in equity, converts the land into money, and the money into land, so that thereafter the vendor's interest is personalty, and the vendee's interest is land, and, on the death of either, his interest passes to his heirs or personal representatives accordingly.

110. Equitable title vested in vendee.

On the making of an executory contract for the sale of land, of which specific performance would be decreed, a court of equity, regarding as done that which ought to be done, thereafter considers the equitable estate as vested in the purchaser, unless an intention to the contrary appears, and the vendor is regarded as holding the legal title in trust for the benefit of the purchaser, while the purchaser is regarded as the trustee of the vendor for the unpaid purchase money.

241

240 3 Pomeroy, Eq. Jur. §§ 1173, 1174; Ackroyd v. Smithson, 1 White & T. Lead. Cas. Eq. 1186; Griffith v. Ricketts, 7 Hare, 299; Clarke v. Franklin, 4 Kay & J. 257, 6 Gray's Cas. 536; Bostwick v. Frankfield, 74 N. Y. 207, 214; Douglas County Com'rs v. Union Pa cific Ry. Co., 5 Kan. 615.

241 Sugden on Vendors, 175; 2 Story, Eq. Jur. § 790; 1 Perry, Trusts, §§ 122, 231; 3 Pomeroy, Eq. Jur. §§ 368. 1261; Shaw v. Foster, L. R. 5 H. L. 321; McKay v. Carrington, 1 McLean, 50, Fed. Cas. No. 8,841; Keep v. Miller. 42 N. J. Eq. 100; Haughwout v. Murphy, 22 N. J. Eq. 531; Kerr v. Day, 14 Pa. St. 112, 53 Am. Dec. 526; Williams v. Haddock, 145 N. Y. 144; Felch v. Hooper, 119 Mass. 52; Dorsey v. Hall, 7 Neb. 464; Lombard v. Chicago Sinai Congregation,