Page:Harvard Law Review Volume 9.djvu/146

Il8 HARVARD LAW REVIEW, occasionally recognized, yet the courts continue the use of this misleading word.^ In determining the propriety of throwing the risk on the pur- chaser from the date of the contract, the primary question is not, it should be observed, whether the vendor or the vendee may be called owner with the greater propriety pending performance of the contract, still less whether the vendee may be called owner in equity and the vendor a trustee. The vendee, when sued, is sued on a promise to pay money. This promise he gave in return for a counter promise. Unless a fundamental principle of the law of two conditions; first of all, whether the title is made out, and, secondly, whether the money is ready; and unless those two things coincide, at the time when the contract ought to be completed, then the contract never will be completed, and the property never will be conveyed. But suppose at the time when the contract should be com- pleted, the title should be made out and the money is ready, then the conveyance takes place. Now it has been suggested that when that takes place, or when a court of equity decrees specific performance of the contract, and the conveyance is made in pur- suance of that decree, then by relation back the vendor has been trustee for the vendee from the time of the making of the contract. But again, with deference, it appears to me that if that were so, then the vendor would in all cases be trustee for the vendee of all the rents which have accrued due, and which have been received by the vendor between the time of the making of the contract and the time of completion ; but it seems to me that that is not the law. Therefore, I venture to say that I doubt whether it is a true description of the relation between the parties to say that from the time of the making of the contract, or at any time, one is ever trustee for the other. They are only parties to a contract of sale and purchase, of which a court of equity will under certain circumstances decree a specific performance." Rayner v. Preston, i8 Ch. D. i, i8, per Brett, L. J. See also criticism of this use of the word trustee in 36 Sol. Jour- nal, 775 and 784. It has been suggested that when the purchase-money has been paid the vendor may be properly called a trustee. 2 Harvard Law Revievvt, 421. It is submitted that even then the vendor is not a bare trustee for the vendee, unless by the contract the vendee is entitled to immediate possession. And except in that case the risk should remain with the seller. Of course where the price is paid the vendee is ordinarily entitled to immediate possession, but this is not necessarily the case. 1 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 pur- chase money, or the vendor is owner of it in equity. Two recent illustrations of this in quarters where it might not have been expected may be found in Cross v. Bean, 83 Me. 61, 64, 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 vendee. Gould v. Murch, 70 Me. 288.