Page:Harvard Law Review Volume 9.djvu/153

125 THE RISK OF LOSS. 125 profits are not regarded as equivalent to each other, and therefore that an exchange of them is unnecessary. Further, a vendee^ in possession has every right of ownership not inconsistent with the security of the vendor,^ and if the vendor intermeddle with the property he is a trespasser.^ Until possession or the time when y^ossession should be transferred, therefore, under these decisions, J ilhe vendor is treated as the owner, and thereafter the vendee is so N' regarded.^ V v^ ^ It is instructive to consider in this connection also the law in re- ^^gard to leased property. By the early English law it seems clear that even a partial destruction of leased property abated a reserved rent or a part of it proportioned to the injury to the premises.* But 1 Miller v. Waddingham, 91 Cal. yj'] -, Baker z/. Bishop Hill Colony, 45 111. 264; Baldwin v. Pool, 74 111. 97 ; Dart, Vendors and Purchasers (6th ed.), 289. 2 Smith V. Price, 42 111. 399. inconsistent with the rule in regard to dividends and calls upon stock after a contract for the sale of stock. It is sometimes said that after such a contract the purchaser is entitled to dividends and must pay calls. In the first place, it is to be noticed that in contracts to sell stock it is generally not specific stock which is the subject of the bar- gain, but any stock which answers a particular description, and it has not been sug- gested that it makes any difference whether the contract is to sell specific stock or not. Further, undoubtedly a purchaser of stock may as against the seller be entitled to dividends and liable for calls though the stock has not been transferred to his name, and it is probable that the presumption that an immediate transfer is intended — a pre- sumption which applies to sales of other personal property — applies to sales of stock also. The purchaser is therefore presumably entitled to an immediate transferi and to all future dividends, and is immediately liable for all calls ; but it has not yet been decided that after a contract to sell stock at a future day the purchaser is entitled to dividends and liable for calls and assessments in the mean time. The cases on divi- dends are collected in Cook, Stock and Stockholders, § 539. As to calls, see Coles V. Bristowe, L. R. 6 Eq. 149, 4 Ch. 3; Hawkins v. Maltby, 4 Ch. 200. The case of calls is somewhat different from that of dividends. Clearly if a purchaser contracts for shares half paid up, he should not be entitled to full paid shares at the same price. for years of land and of a stock of sheep, rendering certain rent, and all the sheep died : it was asked upon the indenture of Richards le Taverner, whether this rent might be apportioned ? And some were of opinion that it should not, although it is the act of God, and no default in the lessee or lessor ; as if the sea gain upon part of the land leased, or part is burned with wildfire, which is the act of God, the rent is not apportionable, but the entire rent shall issue out of the remainder ; otherwise is it if part be recovered or evicted by an elder title, then it is apportionable. And of this opinion were Bromeley, Portman, Hales, Serjeants, huke,/ust/ce, Brooke and several of the Temple. But Marvyne, Brown, Justices, Townshend, Griffith, and Foster e contra ; but all thought it was good equity and reason to apportion the rent. And afterwards this case was argued in the readings by More in the following Lent. And it seemed to him, and to Brooke, Hadley, Fortescue
 * It may be thought that the rule in regard to rents and profits of real estate is
 * The leading case is Richards le Taverner's case, Dyer, 56 a : " A man makes a lease