Page:Harvard Law Review Volume 9.djvu/142

114 114 HARVARD LAW REVIEW. registration laws has never been adverted to in connection with the question under discussion, but it seems obvious that the right of the vendee between the time of the contract and the time for performance corresponds more nearly to actual ownership where such laws prevail than where they do not. If the promise of the vendee is expressly conditional upon re- ceiving a conveyance of the property in good condition, it can hardly be doubted that no liability will arise unless the condition is complied with. If there is no express condition to the vendee's promise, but an express promise by the vendor to convey and deliver in good condition, it is held in Kentucky that failure to comply with the promise, though excused by impossibility, will pre- vent any right of action for the price.^ Reasonable as this doctrine seems, it leads to the destruction of the whole English rule, for a promise to convey must always mean a promise to convey in sub- stantially the same condition as at the time of the contract. On any view, too, the vendor is not entitled to the price unless at the time of the calamity the obligation of the vendee to take the property was absolute. If, therefore, the vendor had not at that time a good title,^ or was in default,^ or if either the vendor or the vendee had any option in regard to performance of the contract,* 1 Marks v. Tichenor, 85 Ky. 536, 538. Indeed, it has been held in Indiana that such a promise binds the promisor to pay damages. Goddard v. Bebout, 40 Ind. 114. But see Maggort v. Hansbarger, 8 Leigh, 532 ; Warner v. Hitchins, 5 Barb. 666 ; Young v. Leary, 135 N.Y. 569. Similarly, a promise to return leased personal property in good condition has been held to amount to an assumption of the risk. Harvey v. Murray, 136 Mass. 377. It may be doubted whether this is the true construction of the promise. The contrary decisions of Seevers v. Gabel (la.), 62 N. W. Rep. 669; Young v. Bruces, 5 Litt. 324 ; McEvers v. The Sangamon, 22 Mo. 187 ; and Harris v. Nicholas, 5 Munf. 483, seem better. 2 Paine v. Meller,6Ves. 349; Calhoon v. Belden, 3 Bush, 674; Christian v. Cabell, 22 Gratt. 82. 3 Paine v. Meller, 6 Ves. 349. 111. 477 ; Blew V. McClelland, 29 Mo. 304; Gilbert v. Port, 28 Ohio St. 276. On this principle the decision in Goldman v. Rosenberg, 116 N. Y. 78, would clearly have been the same had the court admitted the general doctrine of the English courts of equity. One partner had conveyed real estate to a firm of which he was a member, agreeing to purchase it on the expiration of the partnership. As the property was at the risk of the business, the right of the vendee was subject to a contingency. For the same rea- son, a judicial sale does not throw the risk on the vendor until the sale is confirmed, for though the vendee is bound before that time, the vendor is not, since the court may refuse to confirm the sale. Ex parte Minor, 11 Ves. 559; Twigg v. Fifield, 13 Ves. 517.
 * Counter 57. Macpherson, 5 Moo. P. C. 83; Lombard v. Chicago Sinai Cong., 64