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 .
The doctrine of conversion above considered involves the treatment of property as having been converted even before actual conversion takes place. Occasionally a converse doctrine is applied, to the effect that property which has actually been converted is to be treated as not converted, but as retaining its original character.28
Such a doctrine has, in some jurisdictions, been applied in the case of the property of persons not sui juris, such as infants,29 and lunatics'30 with the effect that land, though actually converted into money by the sale thereof, has been regarded as retaining the character of land, for the purpose of ascertaining the respective rights of such person's heirs and personal representatives, the theory being, apparently, that the character of property should not be altered without the owner's consent, which an owner non sui jurts has
919. And compare Porter v. Porter, 135 Ky. 813, 123 S. W. 302.
26. De Vaughn v. McLeroy, 82 Ga. 687, 10 S. E. 211.
27. Cropley v. Cooper, 7 D. C. 226, affirmed, 9 Wall (U. S.) 167; Holt v. Lamb, 17 Ohio St. 374; Allison v. Wilson, 13 Serg. & R. 330.
28. S Pomeroy, Eq. Jur. Sec. 1167; notes to Fletcher v. Ashbnrner. 1 White & T. Lead. Cas. Eq. 1142.
29. Lerch v. Oberly, 18 N. J. Eq. 346. 575; Wetherill v. Hough, 52 N. J. Eq. 683; Horton v. McCoy, 47 N. Y. 21; Scull v. Jerni-gan, 2 Dev. & Bat. Eq. (22 N. C)
144; Wood v. Reeves, 5 Jones Eq. (58 N. C.) 271; Brown v. Wilson, 174 N. C. 636, 94 S. E. 416; Major v Hunt, 64 S. C. 97, 41 S. E. 816; Findley v. Findley, 42 W. Va. 372, 26 S. E. 433; Contra: Steed v. Preece, L. R. 18 Eq. 192; In re Simmons, 55 Ark. 485, 18 S. W. 933; Farris v. Bingham, 164 Ky. 444, 175 S. W. 649; Emerson v. Cutter, 14 Pick. (Mass.) 108; McCune's Appeal, 65 Pa. 450; Wentz's Appeal, 126 Pa. 541, 17 Atl. 875; Hottal v. Ekart, 86 S. C. 341, 68 S. E. 576; Rogers v. Clark, 5 Sneed. (Tenn.) 665.
30. Awdley v. Awdley, 2 Vern. 192;In re Barker, 17 Ch. D. 241;
Sec. 124] Equitable Ownership no capacity to give,and futhermore that such a rule precludes the next of kin from instigating a sale for their own personal advantage.
In case of a sale of land for the purpose of partition,31 while the proceeds of sale obviously belong to those who previously held title to the land, such proceeds have the character of personalty and not of realty,32 except in some jurisdictions, as regards the share of one not sui juris:33 Occasional statements that such proceeds have the character of realty mean merely that the conversion does not affect the rights of the persons previously entitled. So when, upon the sale of land by an order of court or under a power, it is said that the proceeds, or surplus proceeds, of sale are to be regarded as land, this ordinarily means merely that the person or persons previously entitled to the fund in the shape of land do not lose their rights in the fund merely by reason of its change of form.34
Smith v. Bayright, 34 N. J. Eq. 424; Storm v. McGrover, 189 N. Y. 568, 82 N. E. 160; Lloyd v. Hart, 2 Pa. 473, 45 Am. Dec. 612; Hart's Appeal, 8 Pa. 32; Findley v. Find-ley, 42 W. Va. 372, 26 S. E. 433.
31. Post Sec. 204.
32. Newcomer v. Orem, 2 Md. 297, 56 Am. Dec. 717; Cronise v. Hardt, 47 Md. 433; Wentz'Appeal. 126 Pa. 541, 17 Atl. 875; Scott's Estate, 137 Pa. 454, 20 Atl. 623; Cowden v. Pitts. 2 Baxt. (Tenn.) 59; Findley v. Finciley, 42 W. Va. 372, 26 S. E. 433. But that the proceeds belonging to one of the coten-ants do not become personalty until accepted by him as such, see Smith v. Bayright, 34 N. J. Eq. 424; Turner v. Dawson, 80 Va. 841.
33. See ante, this section, notes 29, 30.
34. See Kitchens v. Jones, 87
Ark. 502, 19 L. R. A. (N. S.) 723, 128 Am. St. Pep. 36, 113 S. W. 29; Garner v. Wood, 71 Md. 37, 17 Atl. 1031; Hovey v. Dary, 154 Mass. 7, 27 N. E. 659; Kolars v. Brown, 108 Minn. 60, 121 N. W. 229; Meeker v. Forbes. 84 N. J. Eq. 271, 93 Atl. 887; Aekerman v. Gorton, 67 N. Y. 63; Denton v. Tyson. 118 N. C. 542, 24 S. E. 116; Griswold v. Frink, 22 Ohio St. 79; Pennell's Appeal, 20 Pa. St. 515; In re Henszey's Estate, 39 Pa. St. 428; Jones v. Walkup, 5 Sneed. (Tenn.) 135; Burgess v. Booth, 1908, 2 Ch. 648.
In Fowler v. Lewis, Adm'r. 36 W. Va. 112, 14 S. E. 447, it was decided that the sale of land did not make the fund personalty so as to be subject to an attorney's lien for services. But this appears merely to amount to a deWhen land is taken under the power of eminent domain, the purchase money belongs to the same persons to whom the land belonged, and is subject to similar limitations.35 It is, however, personalty,36 except perhaps, in some jurisdictions, as regards the share of an owner not sui juris.37
IV. Interests Arising Under Contracts of Sale.