Sec. 126. Risk of loss before conveyance
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This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Sec. 126. Risk of loss before conveyance
The theory that the purchaser is, in the view of a court of equity, the owner of the land, has had results of very great practical importance, in many jurisdictions, in giving rise to a rule that, unless a contrary intention appears, the purchaser, and not the vendor, must bear any loss arising from deterioration of the property, or injury thereto, as by fire.55 In a minority of jurisdictions only is this rule not accepted and the loss imposed on the vendor.56 As above suggested, conceding that the purchaser has rights of ownership so soon as an executory contract of sale is entered into, it is somewhat difficult to concede that the vendor has no such rights. And if the vendor has rights of ownership as well as the purchaser, the reason given for the majority rule, that the purchaser is "the owner" of the property, falls to the ground. The view has been urged, that if no intention to the contrary appears, the risk of loss should follow the possession, on the theory that the possession shows the intention of the parties as to where the ownership is to be regarded as located.57 But it may be questioned whether the fact that the vendor permits the purchaser to take possession, or fails to do so, shows
Sec. 657, 39 Cyclopedia Law & Proc. 1626.
51. Ante, this section, note 39.
52. That he is not properly referred to as a trustee see article by Prof. Samuel Williston. 9 Harv. Law Rev. at p. 117, quoting Ray-ner v. Preston, 18 Ch. D. 1. See also
15 Columbia Law Rev. at p. 256. 36 Solicitor's Journal 775, 784.
53 Shaw v. Foster, Li R. 5 H. L. 321 per Lord Cairns.
53a. See 1 Tiffany, Landlord & Ten. Sec. 43.
54. Ante, this section, note 40.
55. Paine v. Meller, 6 Ves. 349;
(semble); Harford v. Purrier, 1 Madd. 532; Lombard v. Chicago Sinai Congregation, 64 111. 479; Marks v. Tichenor, 85 Ky. 538, 4 S. W. 225; Brewer v. Herbert, 30 Md. 301, 96 Am. Dec. 582; Snyder v. Murdock, 51 Mo. 175; Manning v. North British & Merc. Ins. Co. 123 Mo. App. 456, 99 S. W. 1095; Marion v. Wolcott, 68 N. J. Eq. 20, 59 Atl. 242; Sewell v. Underhill, 197 N. Y. 168, 90 N. E. 430; Woodward v. McCollum, 16 N. Dak. 42, 111 N. W. 623; Gilbert v. Port, 28 Ohio St. 276, 292; Dunn v. Yaskish, 10 Okla. 388, 61 Pac. 926; Reed v. Lukens, 44 Pa. 200, 84 Am. Dec. 425.
But even in states where this general rule is accepted, the vendor is said to bear the risk of loss if he is not in a position to make a good title. Phinizy v. Guernsey. 111 Ga. 346, 50 L. R. A. 680, 36 S. E. 796; Eppstein v. Kuhn, 225 111. 115, 80 N. E. 80; Calhoun v. Bel-den, 3 Bush (Ky.) 674; Dickinson v. Wright. 56 Mich. 42, 22 N. W. 412; Bechtel v. Dakota Nat. Bank, 35 S. Dak. 191, 151 N. W. 887. See a suggestive editorial note 18 Columbia Law Rev. 162.
56. Cutliff v. McAnally, 88 Ala. 507, 7 So. 331 (dictum); Gould v. Murch, 70 Me. 288, 35 Am. Rep. 325; Thompson v. Gould. 20 Pick. (Mass.) 134; Wells v. Calnan, 107 Mass. 514; Hawks v. Kehoe, 193 Mass. 419, 10 L. R. A. N. S. 125, 9 A. & E. Am. Cas. 1053, 79 N. E. 766; Wilson v. Clark, 60 N. H. 352; Powell v. Dayton, S. & G. R. R. Co., 12 Ore. 488, 8 Pac. 544.
57. Article by Prof. Samuel Williston in 9 Harv. Law Rev. at p. 122 et seq. Occasionally the courts refer to the possession being in the one or the other as bearing upon the incidence of. the loss. See Phimzy v. Guernsey, 111 Ga. 346, 50 L. R. A. 680, 78 Am. St. Rep. 207, 36 S. E. 796; Good. v. Jarrard, 93 S. C. 229, 76 S. E. 698, See also the analysis of the cases
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