Page:Harvard Law Review Volume 9.djvu/145

117 THE RISK OF LOSS. 11/ can law the devisee or heir being compelled to convey to the purchaser, though the price is paid to personal representatives, ^ that in insurance law the vendee is regarded as the owner, ^ and finally in a multitude of cases the vendor is said to be trustee for the vendee.^ Most-of these decisions are entirely explicable on the ground of equitable conversion. The vendor has indicated an intent to con- vert his real estate into personalty, and the vendee an intent to convert personal estate into real estate, and there is no reason why the intent should not be regarded. The question is not ordinarily at what time the conversion is to be dated, but v/hether there is any conversion. Where the former question arises, it is noticeable that the profits of land under contract of sale belong to the ven- dor's heir until the day fixed for conveyance.* Unquestionably the vendee has an interest in the property which equity will and should protect by enjoining if necessary any dealing with the property inconsistent with the contract. It should be equally clear that the vendor has likewise an interest in the property, and, if the vendee is in possession, he also may be enjoined from co'mmitting waste.5 Many of the insurance cases seem inexpHcable on any view, and it is not true that the vendor is trustee for the vendee,^ and this is 1 Watson V. Mahan, 20 Ind. 223 ; Judd v. Mosely, 30 la. 423 ; Newton v. Swazey, 8 N. H. 9; Moore v. Burrows, 34 Barb. 173; Newport Waterworks v. Sisson (R. I.), 28 At. Rep. 336. 2 A policy of insurance issued to the vendee was held valid, though the policy was conditioned to be void unless the insured had the entire, unconditional, and sole own- ership. Rumsey v. Phoenix Ins. Co., 17 Blatch. 527; ^tna Fire Ins. Co. z/. Tyler, 16 Wend. 385; Pelton v. Westchester Fire Ins. Co., 77 N. Y. 605; Millville Fire Ins. Co. V. Wilgus, 88 Pa. 107 ; Imperial Fire Ins. Co. v. Dunham, 117 Pa. 460; Elliott v. Ashland Mut. Ins. Co., 117 Pa. 548. See also Hough v. City Ins. Co., 29 Conn. 10. And see Biddle on Insurance, § 686. But in all these cases the vendee had possession, and this is strongly relied on as a ground of decision. 8 See notes 7 and 8, infra. fi Moses V. Johnson, 88 Ala. 517 ; Miller v. Waddingham, 91 Cal. 377. ^ "An unpaid vendor is a trustee in a qualified sense only, and is so only because he has made a contract which a court of equity will give effect to by transferring the property sold to the purchaser." Rayner v. Preston, 18 Ch. D. i, 6, per Cotton, L. J. " With the greatest deference it seems wrong to say that one is a trustee for the other. The contract is one which a court of equity will enforce by means of a decree for specific performance. But if the vendor were a trustee of the property for the ven- dee, it would seem to me to follow that all the product, all the value of the property received by the vendor from the time of the making of the contract ought, under all circumstances, to belong to the vendee. What is the relation between them, and what is the result of the contract ? Whether there shall ever be a conveyance depends on
 * Lumsden v. Fraser, 12 Sim. 263.