is necessary. Here the duty, if it exists at all, is absolute. In fact, though most of the decisions holding the purchaser 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 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 in law; 66 and the results suggested in the California, Georgia and Iowa decisions are not dependent on procedure.

§ 935. Partial destruction.

It has not been particularly 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 67 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.

936. Comment on illustrations of vendee's equitable ownership.

Unless the cases illustrating the vendee's supposed equitable ownership stated in a preceding section 68 require for

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.

67 Gammon v. Blaisdell, 45 Kan. 221, 25 Pac. 580.

68 Supra, § 930.

their decision principles different from those which would be applicable on the assumption that the purchaser's right is not that of a mortgagor but is a contract right or some right in rem less than that of a mortgagor these cases are obviously not pertinent to the discussion. For this reason several of them may be at once dismissed.

It is true that while a contract to sell ordinary chattels without transfer of possession gives only a personal right against the seller for damages in case of breach, a contract to sell real estate may be specifically enforced against the vendor; and not only against the vendor, but against any one who, with notice of the purchaser's rights, takes title from the vendor. In the United States, moreover, by recording his contract, the purchaser is able to charge every one with constructive notice of his rights. He thus acquires in fact a right in rem.69 This effect of the registration laws has not generally been adverted to in connection with the question under discussion, but it seems obvious that the right of the purchaser between the time of the contract and the time for performance corresponds more nearly to full ownership where such laws prevail than where they do not. But one who has only an option to buy and who is not called an owner in equity and whom no one saddles with the risk has the same right.70 The interest of one who has contracted to purchase can be assigned, but so can that of the holder of an option.1 The purchaser has a right to require husbandlike conduct of the vendor in possession, but the same may be

69 Another instance of the same effect of the system of registration is found in the law of equitable easements. In the United States, as every one has constructive notice of a recorded equitable easement, it is as completely a right in rem as a legal easement, which also only becomes a right in rem when recorded.

70 Ross v. Parks, 93 Ala. 153, 8 So. 368, 11 L. R. A. 148, 30 Am. St. Rep. 47; Forney v. Birmingham, 173 Ala. 1, 55 So. 618; Smith v. Bangham, 156 Cal. 359, 104 Pac. 689, 28 L. R. A. (N. S.) 522; Copple v. Aigeltinger, 167

Cal. 706, 140 Pac. 1073; Faraday Coal, etc., Co. v. Owens, 26 Ky. L. Rep. 243, 80 S. W. 1171; Whited v. Calhoun, 122 La. 100, 47 So. 415; Thompson v. Henry, 85 Mo. 451; Haughwout v. Murphy, 22 N. J. Eq. 531; Horgan v. Russell, 24 N. Dak. 490, 140 N. W. 99, 43 L. R. A. (N. S.) 1150; Cummins v. Beavers, 103 Va. 230, 48 S. E. 891, 106 Am. St. Rep. 881; Crowley v. Byrne, 71 Wash. 444, 129 Pac. 113; Sizer v. Clark, 116 Wis. 534, 93 N. W. 539.

71 See supra, § 415; James on Option Contracts, § 605.

said not only of the vendor's right against a purchaser in possession,72 but also of the right of the holder of an option. Surely one who has given an option for valuable consideration, cannot thereafter be allowed to misuse the property. The creditors of the vendor it is true cannot by seizing the property destroy the purchaser's interest, as creditors of one who has contracted to sell ordinary chattel property may do, but this only shows what must certainly be fully admitted, that equity treats the purchaser (unless a purchaser for value without notice has acquired the title) as having an interest in the property. It does not show the extent of that interest. On the other hand, it is to be observed that creditors of the vendee cannot generally seize his interest except by a bill in equity; it is not subject to execution unless the price has been paid.73 These rules must therefore be dropped from consideration in any argument concerning the purchaser's risk of loss. They evidently do not depend upon the existence of a situation where the purchaser must be said to have ownership in equity, as distinct from an interest less than such full beneficial ownership as should carry with it risk of loss. In regard to the assertion that the purchaser is chargeable for the cost of improvements made by the vendor under compulsion, this, if true, tends to destroy one of the arguments commonly advanced for throwing the risk on the purchaser; namely, that the chance of gain is his also. In the case supposed he is made to pay an additional price for the improvement of the property. As to taxes the general rule is well settled that the vendor must bear the burden of them until the purchaser is entitled to possession.74

In regard to the inheritance of property and dower rights therein after a contract to sell it, it should be observed that

72 Crockford v. Alexander, 15 Ves. 138, 1 Ames Cas. Eq. Jur. 222, n.

73 Ledbetter v. Anderson, Phillips, Eq. (N. Car.) 323, 1 Ames Cas. Eq. Jur. 214, n.

74 Sherman v. Savery, 2 Fed. 505; Taylor v. Robinson, 34 Fed. 678; National Bank v. Danforth, 80 Ga. 55, 7 S. E. 546; Wells v. City of Savannah,

87 Ga. 397, 13 S. E. 442; Carey v. Gundlefinger, 12 Ind. App. 645, 40 N. E. 1112; Nunngesser v. Hart, 122 Ia. 647, 98 N. W. 505; Carpenter v. Douglas, 104 Miss. 74, 61 So. 161; Farber v. Purdy, 69 Mo. 601; Brown v. Brown, 124 Mo. 79, 27 S. W. 552; Anderson v. Harwood, 47 Mo. App. 660.

the question here is not between the vendor and purchaser, but between classes of inheritors, all of whom are in the position of volunteers. It may be entirely proper for equity to arrange the rules of inheritance in accordance with an intention of the owner to change the nature of the property at a future time. The vendor has indicated an intent to convert his real estate into personalty, and the purchaser 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.75 Whatever the basis of the rule in question, it does not violate any principle of contracts. Moreover, it seems probable on the authorities that even where the purchaser's contractual right to a conveyance is subject to a condition other than the payment of the price, that this rule of inheritance will nevertheless be applied if the condition was one which the purchaser could have performed. Yet, it seems clear that the risk of loss would not be thrown on the purchaser in such a case under the English equitable doctrine. Thus where the purchaser has a mere option when the vendor dies, on the exercise of the option the vendor's executor, not his heir, has been given the purchase money."

76

The insurance cases are not all easily made consistent with one another, but so far as they can be reduced to a general principle seem rather to support the view that until he is given possession the purchaser is not the beneficial owner and that thereafter he is." Unquestionably the purchaser has

75 Shadforth v. Temple, 10 Sim. 184; Lumsden v. Fraser, 12 Sim. 263.

76 Townley v. Bedwell, 14 Ves. 591, and see 1 Ames Eq. Jur. 200, n. In re Marley, [1915] 2 Ch. 264; cf. RocklandRockport Lime Co. v. Leary, 203 N. Y. 469, 97 N. E. 43.

"The question is involved in different clauses common in insurance policies. On the one hand it is said: "The interest of a vendee under an

executory contract of sale, who is not in default, and is in possession under such contract, and is the owner in equity, may be regarded as unconditional sole ownership." 2 Clement on Ins. 167, citing many cases; McCollough v. Home Ins. Co., 155 Cal. 659, 662, 102 Pac. 814. On the other hand, it is said: "An executory contract for the sale of the insured property is not a 'sale,' 'transfer,' 'alienation,' or

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 purchaser is in possession, he also may be enjoined from committing waste. However often the words may be repeated it cannot be true that the vendor is trustee for the purchaser 79