i68
THE GREEN BAG
purchaser the moment when the contract is . made. The burden of proving this rests upon those who assert it. They sometimes rely on the supposed doctrine that equity considers as done whatever is agreed to be done. The author shows that there is no such doctrine, though there is a similar one that whatever is agreed to be done, equity considers as done at the time when it is agreed to be done, but this furnishes no warrant for saying that a title is passed in equity. The author submits that upon principle a contract for the purchase and sale of land has no other effect in equity than it has at law unless and until it is broken by the seller's failure to convey the land according to his agreement, and unless the purchaser dies before any such breach, though in the latter event the purchaser's right under the contract will be devolved in equity upon his heir or devisee, as before stated. The contract has no effect in equity upon the seller's right to receive the purchase money over and above the effect of the same contract at law. "If a person covenants that he will lay out a given sum of money in the purchase of land, and will settle the land in such manner as is stated in the covenant, or if a trust be created
for the same purpose, it is certain that no land will pass in equity to any of the persons in whose favor the settlement is to be made until the land is actually purchased pursuant to the covenant or trust, for until then it is wholly uncertain what land will be settled. "The reader will see, therefore, that, when money is covenanted or directed to be laid out in land and the land to be settled, it is when the money is thus laid out, and not till then, that any of the persons in whose favor the covenant is made, or the direction given, first become, by virtue of such covenant or direc tion, owners of land in equity in any other than a purely fictitious sense, even assuming that the money may, by a fiction, properly be termed land in equity before it is actually laid out in land. "When a covenant or trust, instead of being to lay out money in the purchase of land, and to settle the land, is to sell land and make some disposition of the proceeds of the sale, it is equally clear that none of those in whose favor such proceeds are to be disposed of can possibly acquire the ownership, either at law or in equity, of any specific money until the land is actually sold, as, until then, there will be no identification of any money."
