specific performance of the contract in equity, assuming, of course, that he is in a condition to enforce such performance. The reason of this is that, when performance of a contract is enforced in equity, the performance is held to relate back to the time fixed by the contract for its performance; and hence, if performance be enforced in the case supposed, equity will regard the land as having belonged to the vendee when the loss happened.
Such is the rule which ought to prevail in equity, and which formerly did prevail; but, since the time of Lord Eldon, English courts of equity have drifted into great confusion upon this subject, for they now hold that a loss by fire which happens any time
- “If I should buy an house, and, before such time as by the articles I am to pay for the same, the house be burnt down by casualty of fire, I shall not, in equity, be bound to pay for the house.” Per Sir Joseph Jekyll, M.R., in Stent v. Bailis, 2 P. Wms. 217, 220. The same rule was acted upon by Lord Eldon in Paine v. Meller, 6 Ves. 349. It is true that the purchase there was to be completed on the 29th of September, while the fire did not happen till the 18th of December following; but the time for completing the purchase had been extended by the mutual consent of the parties; and Lord Eldon held that the vendee must bear the loss, provided he had been put in default by the vendor before the loss happened, but not otherwise.
- Poole v. Adams, 12 W.R. 683; Rayner v. Preston, 14 Ch. D. 297, 18 Ch. D. 1. In the first of thcae cases, Kindersley, V. C., seems to have supposed that he was following the common-law rule; for he said it was “clear that the contract remained good at law [i. e., notwithstanding a loss by fire before the time for performing the contract arrived], and that the purchaser might have been sued for breach, in refusing to complete and pay his purchase-money.” It seems impossible to reconcile either of the two cases just cited with that of Counter v. Macpherson, 5 Moo. P.C. 83. In the latter case, there was an agreement for a lease of land and buildings by the plaintiff to the defendants. Before the lease was made, the buildings were partly destroyed by fire. The fire happened after the day fixed for performing the agreement, i. e., for making the lease, but the time had been extended by mutual consent (as in Paine v. Meller, supra), and at the time of the fire there had been no breach of the contract by either party; and the court held that the plaintiff was entitled to specific performance only upon the terms of restoring the buildings to the condition in which they were before the fire, and in other respects performing the contract on his part. Hence it was held that the loss fell upon the plaintiff as well in equity, as at law; and the court declared that upon such a question equity had no rule of its own, but followed the law. It is true that the defendant’s obligation to perform was conditional on performance by the plaintiff, but so it was in all the cases in which this question has arisen. In all of them alike, too, the condition was implied,—not express. This was emphatically the case in Counter v. Macpherson, as there was there no formal writing whatever, the agreement having been made out entirely by letters written by the parties respectively to each other.
It is also true that the agreement in Counter v. Macpherson contained a condition precedent, to be performed by the plaintiff; but, in respect to the question under consideration, there is no difference between a condition precedent and a concurrent condition. Moreover, every vendor of land has a condition precedent to perform, according to the English practice, namely, that of showing a good title.
Finally, it is true that one of the conditions to be performed by the plaintiff in Counter