and this is occasionally recognized, yet the courts continue the use of this misleading word.&

80

§ 937. Rules tending to show a vendor is not a mortgagee. There are several well-settled rules which show that one who contracted to sell property in the future is not in the position of a mortgagee.

1. It is a well-settled rule of mortgage law that no agreement of forfeiture between mortgagor and mortgagee for non-payment on time will be enforced.81 It is equally well settled in the law of vendors and purchasers that an agreement that time shall be of the essence, will be enforced.82 And even though the contract does not make time of the essence, either party by giving a reasonable notice to the other, may make prompt performance essential.83 Important ton, 18 Ch. D. 1, 10, per Brett, L. J. See also a 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 properly be called a trustee. 2 HARVARD LAW REVIEW, 421. It is submitted that even then the vendor is not a bare trustee for the purchaser, unless by the contract the purchaser is entitled to immediate possession. And except in that case the risk should remain with the vendor. Of course, where the price is paid the purchaser is ordinarily entitled to immediate possession, but this is not necessarily the case.

80 In Royal Society v. Bomash, 35 Ch. D. 390, 397, Kekewich, J., says: "Of course 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. This mode of expression is old, Green v. Smith, 1 Atk. 572, see supra, § 933, and though palpably inaccurate is still common. Two recent illustrations of it may be found in Cross v. Bean, 83 Me. 61, 64, 21 Atl. 752, 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 vendor. Gould v. Murch, 70 Me. 288, 35 Am. Rep. 325. 81 See supra, § 771.

82 See supra, §§ 852 et seq.

83 Ibid. "The idea that vendor and vandee stand in the mere relation of mortgagee and mortgagor so that in equity the same time will be given to the vendee to perform that is given to a mortgagor to redeem-is contrary to reason and the whole current of modern authorities." Kirby v. Harrison, 2 Ohio St. 326, 59 Am. Dec. 677.

qualification of this principle in the law of vendor and purchaser is found where the vendee is in possession, but only in such cases.

84

2. Unless the contract expressly gives the purchaser a right of possession, he is not entitled thereto; nor is he entitled to the rents and profits until the time when he is entitled to possession.85 Thereafter he is so entitled.86

3. The vendor in possession is liable for taxes.$7

It is evident, therefore, that an assertion that the purchaser is in the position of a mortgagor, finds as little support in the decisions as it does in principle. In important particulars the law is everywhere settled that the relation between the parties is not to be treated as that of mortgagor and mortgagee, yet it is only on the assumption that the vendor's legal title is held merely for security that there can be any propriety in throwing the risk on the purchaser. One who admits that the relation of vendor and purchaser is not in legal effect that of mortgagee and mortgagor, though he is not precluded from asserting that one who has contracted to purchase has some incidents of ownership, cannot fairly argue that those incidents

84 Clarke v. Ramuz, [1891] L. R. 2 Q. B. 456, 463; Gaven v. Hagen, 15 Cal. 208; Gates v. McLean, 70 Cal. 42, 11 Pac. 489; Stratton v. California Land Co. 86 Cal. 353, 24 Pac. 1065; Williams v. Forbes, 47 Ill. 148; Chappell v. McKnight, 108 Ill. 570; In re Boyle's Est., 154 Ia. 249, 134 N. W. 590, 38 L. R. A. (N. S.) 420; Druse v. Wheeler, 22 Mich. 439; Cartin v. Hammond, 10 Mont. 1, 24 Pac. 627; 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, 19 L. Ed. 712. The law in Alabama is otherwise. Reid v. Davis, 4 Ala. 83; Wimbish v. Montgomery, etc., 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. 505.

85 Mackrell v. Hunt, 2 Mad. 34 n.; Rayner v. Preston, 18 Ch. D. 1, 11; In re Boyle's Est., 154 Ia. 249, 134 N. W. 590, 38 L. R. A. (N. S.) 420; Tucker v. McLaughlin-Farrar Co., 36 Okl. 321, 129 Pac. 5. See also the cases cited in note, infra. The same principle is also involved in the cases in the preceding note. Cf. Ashurst v. Peck, 101 Ala. 499, 14 So. 541; Hundley v. Lyons, 5 Munf. 342. After the purchaser's default, the vendor may either keep the rents or claim interest. Barsht v. Tagg, [1900] 1 Ch. 231. If he elects to receive interest, he is held to strict account of the rents which he received; Plews v. Samuel, [1904] 1 Ch. 464, or which he might have received. Phillips v. Silvester, L. R. 8 Ch. 173. As to the vendee's obligation to pay interest, see 1 Ames Cas. Eq. Jur. 219 n.

86 See the following section.

87 Hall v. Ely (N. J. Eq.) 108 Atl. 390, and cases cited supra, n. 74.

justify the transfer of risk from the vendor who retains not only the legal title, but some at least of the incidents of beneficial ownership.88

§ 938. Inconsistency of foregoing rules with purchaser's ownership.

On the one hand the foregoing rules preclude immediate ownership on the part of the purchaser. No argument can be convincing of the propriety of asserting that the purchaser is an owner from the making of the contract, and yet is not entitled to all the rights of an owner which he has not agreed to surrender. If an intent is manifest that the purchaser shall not have possession of 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 purchaser 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,89 and the purchaser must pay interest on the price.90 This rule shows that interest on the purchase money and rents and profits are not regarded as equivalent to each other, and that therefore an exchange of them is unnecessary. Further, a purchaser in possession has every right of ownership not inconsistent with the security of the vendor,91 and if the vendor intermeddle with the property

88 See infra, § 939.

89 Acland v. Gaisford, 2 Mad. 28; Wilson v. Clapham, 1 J. & W. 36; Buck v. Duvall, 11 Ga. App. 853, 76 S. E. 1053; Mason v. Chambers, 3 T. B. Mon. 318; Baxter v. Brand, 6 Dana, 296; Hundley v. Lyons, 5 Munf. 342, 1 Ames Cas. Eq. Jur. 221 n.

90 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, 37 Am. Dec. 725; Boyce v. Pritchett's Heirs, 6 Dana, 231; Bishop v. Clark, 82 Me. 532, 20 Atl. 88; 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. 465. A qualification is added in the English cases which would probably meet with general assent, that if the purchaser's money is lying idle ready for the vendor, and the vendor has notice of this, interest will cease.

91 Miller v. Waddingham, 91 Cal. 377, 27 Pac. 750, 13 L. R. A. 680; Baker v. Bishop Hill Colony, 45 Ill. 264; Baldwin v. Pool, 74 Ill. 97. See also cases in the preceding section n. 85; Dart. Vendors and Purchasers (6th ed.), 289; Hall v. Ely (N. J. Eq.) 108 Atl. 370.

he is a trespasser.92 Until possession or the time when possession should be transferred, therefore, under these decisions, the vendor is treated as the owner, and thereafter the purchaser is so regarded.93

§ 939. Intent to transfer ownership should control the question.

In the law of contracts unless the agreement of the parties is in violation of public policy, it is the duty of the court to enforce that agreement; not to substitute different rights and liabilities of its own creation. There is certainly no public policy requiring the purchaser to be the owner of property any sooner than the agreement specifies; and to hold that he is the owner now when he has agreed to be the owner next year, is an impropriety and an injustice. It is true that the parties manifest no intention in regard to the risk of loss except as such an intention may be inferred as to their agreement as to ownership. But the only ground for contending that the risk should be thrown on the vendee is because of his supposed ownership. The principle that risk attends

92 Smith v. Price, 42 Ill. 399.

93 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 trans

fer is intended-a presumption which applies to sales of other personal property (Williston, Sales, § 264)—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 meantime. The cases on dividends are collected in Cook, Corporations, § 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.

ownership might conceivably be contested, but it is not, and though if that principle is understood as necessarily throwing the risk where the technical legal title lies, it is open to criticism; it is not open to criticism when understood as requiring that the risk shall rest on that party to a contract who by the terms of the agreement has, or has agreed to have at the time, the substantial rights peculiar to present ownership, as distinguished from the rights of one who has an option or rights of a future owner. If part of the substantial rights of ownership equitably as well as legally belong to the purchaser and part still belong to the vendor, at the time in question, the risk should still be with the vendor since he should not be allowed to hold the purchaser on his promise to pay until he himself has given substantially all-not partof what he agreed to give.94

§ 940. Risk should pass to the purchaser on transfer of possession.

Even if the rights which equity assures to a purchaser were much more nearly equivalent than they are to the complete ownership for which he bargained, the fundamental difficulty with the English rule remains the same; namely that, whatever rights a purchaser may acquire immediately after the contract, and even if such rights were the substantial equivalent of ownership, the contract is for the 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 purchaser; but where the original intention of the parties to transfer ownership from one to another 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

94 See Potts Drug Co. v. Benedict, 156 Cal. 322, 104 Pac. 432, 25 L. R. A. (N. S.) 609, which involved a contract to sell a leasehold interest in realty. Such an interest, as the court says, is regarded by the law as a chattel interest, but as a contract regarding such an

interest would be specifically enforced, the question of risk is the same as in a contract to sell a fee. The court rightly sought whether the intention of the parties was to make an immediate transfer.