§ 942. Practical advantages of leaving risk with the vendor in possession.

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, and to deny relief which requires litigation. As the vendor in possession will rarely have been paid in advance, to throw the risk on him makes no transfer of money or property necessary to adjust the rights of the parties. 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 consequence. 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 purchaser, it practically removes it from an

But

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 contrac-
ted 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. See
further 16 Harv. L. Rev. 442.
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, 5 Am. Dec. 346." One who agrees to sell at a future day, retaining in the meantime 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.

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 purchaser. 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 purchaser can have none, for till after that time he has no insurable interest. In fact, the purchaser relies on the vendor's insurance as a protection to the property. Even if, as is not infrequently provided, the vendor's insurance is by agreement to be assigned to the purchaser when the property is transferred, or to be held for his benefit in the meantime, either the vendor or the purchaser is not protected by the English law.98

§ 943. English rule disregards analogies.

Finally, the doctrine of equity here criticised does not follow the analogy of cases indistinguishable on any sound 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,

98 "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. 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. Ann. 95; Clinton v. Hope Inз. Co., 45 N. Y. 454, 465. So obnoxio

is this result that not a few American courts have been driven to violate a fundamental principle of insurance law, that the contract of insurance is one of personal indemnity, and have held the vendor a trustee of the insurance for the purchaser. Skinner v. Houghton, 92 Md. 68, 48 Atl. 85; Manning v. North British, etc., Ins. Co., 123 Mo. App. 456, 99 S. W. 1095; Gilbert v. Port, 28 Ohio St. 276; Reed v. Lukens, 44 Pa. 200, 84 Am. Dec. 425. See also Hill v. Cumberland Valley Mutual Protection Co., 59 Pa. 474; Parcell v. Grosser, 109 Pa. 617, 1 Atl. 909.

99 3 B. & S. 826.

1

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." 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.

§ 944. Risk in leased property.

It is instructive to consider in this connection the law in regard to leased property. By the early English law it seems clear that if rent was merely reserved and the lessee did not in terms covenant to pay it, even a partial destruction of leased property abated the rent or a part of it proportioned to the injury to the premises.

1 Page 840.

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

But where the lessee expressly

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

The statements is 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

covenanted to pay the rent (as is the almost universal custom) he must keep his covenant, though the leased property suffered injury by accident. In the nineteenth century the land

lord has been allowed to 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 to 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.6