Page:Harvard Law Review Volume 9.djvu/144

116 Il6 HARVARD LAW REVIEW. the result of the former cases at least would have been different had the proceedings been in equity. It is nearly certain that the courts of Massachusetts, Maine, and New Hampshire would give vendors no more relief in equity than at law.^ In support of the proposition forcibly stated by Lord Eldon, " The estate from the seaHng of the contract is the real property of the vendee,"^ it is pointed out that from that time the property may be conveyed or devised as real estate by the vendee,^ that it will pass to his heir,* that his widow will get dower if dower in equitable estates is allowed,^ that his family may acquire rights of homestead at once,^ that the vendor if still in possession must take reasonable care of the property and is hable for waste,^ that the vendor's creditors cannot reach the real estate,^ that on the other hand the vendor's interest is immediately treated as personalty^ and passes to his executors, his wife not having dower,i^ that under the old English law the contract was in equity regarded as a revo- cation of a prior devise,^^ and under the modern English and Ameri- 1 In Poole V. Adams, 12 W. R. 683, Kindersley, V. C, said: " Whatever the rule of this court might be as to enforcing specific performance in a case where the property was burnt down, it was clear that the contract remained good at law, and that the pur- chaser might have been sued for breach in refusing to complete and pay his purchase money." This is not the usual line of argument, however. 2 Seton V. Slade, 7 Ves. 265, 274. estate. Greenhill v. Greenhill, 2 Vern. 679 ; Prec. Ch. 320. See also Langford v. Pitt, 2 P. Wms. 629. Musham, 87 111. 80; Champion v. Brown, 6 Johns. Ch. 398; Hathaway v. Payne, 34 N. Y. 92, 103; Thomson v. Smith, 63 N. Y. 301, 303. ^ Bailey v. Duncan's Repr., 4 Mon. 256; Rowton v. Rowton, i Hen. & Munf. 92. ^ Chopin V. Runte, 75 Wis. 361. In this case the vendee had possession, and it may be doubted whether the same result would otherwise have been reached. 7 Phillips V. Silvester, L. R. 8 Ch. 173; Earl of Egmont v. Smith, 6 Ch. D. 469; Royal Society v. Bomash, 35 Ch. D. 390 ; Clarke v Ramuz [1891], 2 Q. B. 456; Holm- berg V. Johnson, 45 Kan. 197. Compare Hellreigel v. Manning, 97 N. Y. 56. See also Dart, Vendors and Purchasers (6th ed.), 733 ; Cloyd v. Steiger, 139 111. 41. 8 Finch V. Earl of Winchelsea, i P. Wms. 277 ; Jackson v. Snell, 34 Ind. 241 ; Hampson v. Edelen, 2 Har. & J. 64 ; Houston v. Nowland, 7 G. & J. 480 ; Lane v. Ludlow, 6 Paige, 316, n. ; Moyer v. Hinman, 13 N. Y. 180, 190; Sjter's Appeal, 26 Pa. 178; Blackmer v. Phillips, 67 N. C 340. Burrows, 34 Barb. 173; Smith z/. Gage, 41 Barb. 60; Thomson v. Smith, 63 N. Y. 3°^ 303; Keep v. Miller, 42 N. J. Eq. 100; Kerr v. Day, 14 Pa. St. 112, 114. And see a valuable note in 42 N. J. Eq. 100. 10 Lunsford v. Jarrett, 11 Lea, 192, 196. 11 Cotter V. Layer, 2 P. Wms. 623 ; Knollys v. Alcock, 5 Ves. 648, 654 ; Bennett v. Lord Tankerville, 19 Ves. 170, 178; Farrar v. Earl of Whiterton, 5 Beav. i ; AV Man- chester Co., 19 Beav. 365.
 * The vendee's interest was held to pass under a devise of the testator's freehold
 * Langford v. Pitt, 2 P. Wms. 629; Seton v. Slade, 7 Ves. 265, 274; Mush am z/.
 * Curre v. Bowyer, 5 Beav. 6, n. {b) ; Thomas v. Howell, 34 Ch. D. 166; Moore v.