Page:Harvard Law Review Volume 9.djvu/137

109 THE RISK OF LOSS, IO9 tween the present purchase of property in remainder expectant on the death of A., and an executory agreement to purchase the same property upon the death of A. It seems obvious that, in the first class of cases, where the buyer intends the present purchase at the moment of entering into the agreement of a future right, the loss should fall upon the purchaser.^ A third case arises v/here the agreement is that the buyer shall at once receive all the incidents of ownership except the bare legal title which is retained as security. It is this last case that is illustrated by a sale with delivery of pos- session and retention of title till the price is paid. Obviously the buyer has every right of ownership consistent with the seller's retention of security for the price. That security is the measure of the seller's right. The transaction is exactly the same in legal effect as a transfer of title and a mortgage back for the price, and the intent of the parties is the same. No further act on the part of the seller is expected to take place at a future day. By refusing to receive the money due he could not repudiate the transaction, rendering himself liable to a personal action alone.^ The trans- will take cognizance, and that the vendee's equitable title arises at the time when, by agreement, he was to have the legal title. 1 Dowdy V. McLellan, 52 Ga. 408. In this case it was held that the maker of a promissory note given for a reversionary interest in slaves was not relieved from lia- bility by the emancipation of the slaves. Such cases are rare in sales of personal property. 2 In Carpenter v. Scott, 13 R. I. 477, 479, speaking of such a sale, the court said : to become the absolute owner upon complying with the terms of the contract. These are rights of which no act of the vendor can divest him, and which, in the absence of any stipulation in the contract restraining him., he can transfer by sale or mortgage. Upon performance of the condition of the sale, the title to the property vests in the vendee, or, in the event that he has sold or mortgaged it, in his vendee or mortgagee, without further bill of sale. Day v. Bassett, 102 Mass. 445, 447 ; Crompton v. Pratt, 105 Mass. 255, 248 ; Currier v. Knapp, 117 Mass. 324, 325, 326; Chase v. Ingalls, 122 Mass. 381, 383." In Chicago Railway Equipment Company v. Merchants* Bank, 136 U. S. 268, 283, ' while referring to notes each of which contained a statement that it was given for per- sonal property the title to which should remain in the payee until the note was paid, Harlan, J, who delivered the opinion of the court, said : " The agreement that the title should remain in the payee until the notes were paid ... is a short form of chattel mortgage. The transaction is, in legal effect, what it would have been if the maker, who purchased the cars, had given a mortgage back to the payee, securing the notes on the property until they were all fully paid. . . . The suggestion that the maker could not have been compelled to pay if the cars had been destroyed before the maturity of the notes, is without any foundation upon which to rest. The agreement cannot properly be so construed. The cars having been sold and delivered to the maker, the payee
 * Under it the vendee acquires not only the right of possession and use, but the right