Page:Harvard Law Review Volume 9.djvu/152

124 124 HARVARD LAW REVIEW. possession, unless the contract expressly provides that he shall have it ; ^ nor is he entitled to the rents and profits until the time when he is entitled to possession.^ This cannot be reconciled with immediate ownership on the part of the vendee. Where the con- tract specifies a fixed day for the transfer of title, it might be contended that the intent of the contracting parties was thereby in- dicated, that the vendee should retain the possession and rents and profits till that day. But the law is, presumably, the same whether a day is or is not fixed by the contract for performance,^ and no argument can be convincing of the propriety of asserting that the vendor is an owner from the making of the contract, and yet is not entitled to the rights of an owner though he has not agreed to surrender them. If an intent is manifest that the vendee shall not have possession or rents and profits, an intent is equally manifest that he shall have no other right or consequence of ownership. On the other hand, from the time when the vendee is entitled by the contract to possession, he is entitled to the rights of an owner. The vendor, if still in possession, must account for the rents and profits,^ and the vendee must pay interest on the price.^ This rule shows that interest on the purchase money and rents and 1 Clarke z'. Ramuz, [1891] 2 Q. R. 456, 463; Gaven v. Hagen, 15 Cal. 208 ; Gates v. McLean, 70 Cal. 42 ; Stratton v. California Lan(t Co., 86 Cal. 353 ; Williams v. Forbes, 47 111. 148; Chappell V. McKnight, 108 111. 570; Druse v. Wheeler, 22 Mich. 439; Car- tin V. Hammond, 10 Mont, i ; Suffern v. Townsend, 9 Johns. 35 ; Erwin v. Olmsted, 7 Cow. 229; Spencer ?/. Tobey, 22 Barb. 260, 269; Burnett z/. Caldwell, 9 Wall. 290, 293. The law in Alabama is otherwise, Reid v. Davis, 4 Ala. 83 ; Wimbish v. Mont- gomery, &c. Assoc, 69 Ala. 575, 578. It has been held in two cases that if the price has been paid and the land is vacant the purchaser is entitled to possession. Miller v. Ball, 64 N. Y. 286; Sherman v. Savery, 2 Fed. Rep. 505. 2 Mackrell v. Hunt, 2 Mad. 34 «.; Rayne. v. Preston, 18 Ch. D. i, 11. See also the cases cited in note 4, infra. The same principle is also involved in the cases in the preceding note. Compare Ashurst v. Peck (Ala.), 14 South. Rep. 541, Hundley v. Lyons, 5 Munf. 342. Chambers, 3 T, B. Mon. 318 ; Baxter v. Brand, 6 Dana, 296 ; Hundley v. Lyons, 5 Munf. 342 ; Dart, Vendors and Purchasers (6th ed.), pp. 286, 505, 708, 732. 5 Powell V. Martyr, 8 Ves. 146; Fludyer v. Cocker, 12 Ves. 25 ; Roberts v. Massey, 13 Ves. 561 ; Birch f. Joy, 3 H. L. C. 565 ; Ballard z/.Shutt, 15 Ch. D. 122; Cullum v. Branch Bank, 4 Ala. 21 ; Boyce v. Pritchett's Heirs, 6 Dana, 231 ; Bishop v. Clark, 82 Me. 532 ; Cleveland v. Burrill, 25 Barb. 532 ; Stevenson v. Maxwell, 2 Comst. 408 ; Ramsay v. Brailsford, 2 Desaus. 582, 592 ; Hundley v. Lyons, 5 Munf, 342 ; Selden v. James, 6 Rand. 464. A qualification is added in the English cases which would prob- ably meet with general assent, that if the vendee's money is lying idle ready for the vendor, and the vendor has notice of this, interest will cease.
 * See, however, Hundley v. Lyons, 5 Munf. 342.
 * Acland v. Gaisford, 2 Mad. 28 ; Wilson v. Clapham, i J. & W. -tfi ; Mason v.