Page:Harvard Law Review Volume 9.djvu/141

THE RISK OF LOSS. II3 their assent to Lord Eldon's view. But there is, nevertheless, a strong dissent.^ The reason stated in the case for what may be called the English view is variously put. It is sometimes said that equity regards as done what is agreed to be done ; sometimes that from the moment of the contract the vendor is trustee for the vendee ; sometimes that from that moment the vendee is the owner in equity. So far as these statements are not question-begging ways of saying the law is so because it is, they involve the idea that the vendee from the time of the contract acquires the substantial rights of owner- ship, and will therefore be treated by equity as having the rights and being subject to the liabilities of a legal owner. There are reasons for this theory when applied to real estate not applicable to chattels. That a contract to sell chattels without transfer of possession gives only a personal right against the seller for dam- ages in case of breach has already been shown. A contract to sell real estate, however, may be specifically enforced against the ven- dor; and not only against the vendor, but against any one who, with notice of the vendee's rights, takes title from the vendor. In this country, moreover, by recording his contract, the vendee is able to charge every one with constructive notice of his rights. He thus acquires in fact a right in rem? This effect of the Tichenor, 85 Ky. 536; Martin v. Carver's Adm. (Ky.) i S. W. Rep. 199; Brewer v. Herbert, 30 Md. 301 ; Blew v. McClelland, 29 Mo, 304, 306 ; Snyder t/. Murdock, 51 Mo. 175. 177 ; Walker v. Owen, 79 Mo. 563; Gilbert v. Port, 28 Ohio St. 276, 292 ; Richter V. Selin, 8 S. & R. 425, 440; Morgan v. Scott, 26 Pa. 51 ; Siter's App., 26 Pa. 178, 180; Reed v. Lukens, 44 Pa. 200; Hill v. Cumberland Co , 59 Pa. 474,478; Miller z/. Zufall, 113 Pa. 317, 325; Huguenin v. Courtenay, 21 S. C. 403, 405; Christian v. Cabell, 22 Gratt. 82, 105. A decision to the same effect in Australia is Smith v. Hayles, 3 Vic- torian L. R. Law, 237. 1 Cutcliff V. Mc Anally, 88 Ala. 507, 512; Gould v. March, 70 Me. 288 ; Thompson z;. Gould, 20 Pick. 134 ; Gould v. Thompson, 4 Met. 224; Wells v. Calnan, 107 Mass. 514; Wilson z/. Clark, 60 N. H. 352; Powell v. Dayton, &c. R. R. Co., 12 Ore. 488, The question is expressly left open in Wetzler v. Duffy, 78 Wis. 170. In New York there are dicta in a few early cases in accord with the English law, Rood v. New York, &c. Co., 18 Barb. 80,83; McKechnie v. Sterling, 48 Barb. 330, 335; Clinton v. Hope Ins. Co., 45 N. Y. 454, 465 ; but in view of the later decisions it seems probable that the vendee would not be bound to fulfil his contract if the property were accident- ally destroyed or seriously injured before the time for the completion of the contract, unless he had by the contract a right to the possession of the premises. Wicks v. Bowman, 5 Daly, 225 ; Smith v. McCluskey, 45 Barb. 610 ; Goldman v. Rosenberg, 1 16 N. Y. 78 ; Listman v. Hickey, 65 Hun, 8. 2 Another instance of the same effect of the system of registration is found in the law of equitable easements. In this country, as every one has constructive notice of a recorded equitable easement, such an easement is as completely a right in retn as a legal easement, which also only becomes a right in rem when recorded.