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 .
It is frequently said that on the making of an executory contract for the sale of land, of which specific performance would be decreed, a court of equity, regarding as done that which ought to be done, will consider the purchaser as the owner of the land.38 It is also frequently said cision that preexisting rights of property are not displaced by the sale.
As to the time of a conversion effected by an order for the sale of land, it is held in this country that it takes place only on the ratification of the sale and compliance by the purchaser with the terms thereof. Hawkins v. Hawkins' Atmr, 173 Ky. 475, 191 S. W. 258; Newcomer v. Orem, 2 Md. 297, 56 Am. Dec. 717; Early v. Dorsett, 45 lid 462; In re Big-gert, 20 Pa. St. 17; Jones v. Walk-up, 5 Sneed (Tenn.) 135; Wayne v. Fouts, 108 Tenn. 145, 65 S. W. 471. In England, it is held to date from the order for sale. Hyett v. Mekin, 25 Ch. Div. 735.
35. Mayer v. McCracken, 245 111. 1, 92 N. E. 355; Simonds v. Simonds, 112 Mass. 157 Durando v. Durando, 23 N. Y. 331; Re Tatham's Estate, 250 Pa. 269, 95 Atl. 520.
36. U. S. v. Baker, 183 Fed. 280;
Emerson v. Cutler, 14 Pick. 118; Simonds v. Simonds, 112 Mass. 157; Ballou v. Ballou, 78 N. Y. 325; Ametrano v. Downs, 170 N. Y. 388, 58 L. R. A. 719, 88 Am. St. Rep. 67; 63 N. E. 340; In re Blewett St. of Seattle, 59 Wash. 485, 110 Pac. 549.
But in New Jersey, in the case of such a sale, as in the case of any other compulsory sale, the proceeds become personalty as to a particular person entitled only after acceptance thereof as such by him, being sui juris. Wetherill v. Hough, 52 N. J. Eq. 683, 29 Atl. 592. In England the character of the fund realized in such cases appears to he determined by the wording of the particular statute authorizing the taking. See notes to Fletcher v. Ashburner, 1 White & T. Lead. Cas. Eq. 1151.
37. Ante, this section, notes 29, 30.
38. See, e. g. 2 Story, Eq. Jur. Sec. 790;1 Pomeroy, Eq. Jur. Sec. 368; that the vendor holds the legal title in trust for the purchaser,39 and occasionally the purchaser is said to be the trustee of the vendor as regards the purchase money.40
In support of the statement that equity regards the purchaser as the owner of the property, reference is ordinarily made to one or more of the following con siderations.41 The purchaser may devise his interest in the property under the name of real estate or real property,42 it passes by descent to his heirs,43 and it is frequently subject to the dower rights of his wife.44
Paine v. Meller, 6 Ves. 349; Love v. Butler, 129 Ala. 531, 30 So. 735; Kimberlin v. Templeton, (Ind.) 102 N. E. 160; In re Boyle's Estate, 154 Iowa, 249, 38 L. R. A. (N. S.) 420, 134 N. W. 590; Marquette v. Michigan Iron & Land Co., 132 Mich. 130, 92 N. W. 934; Stearns v. Kennedy, 94 Minn. 439, 103 N. W. 212; Jewett v. Black, 60 Neb. 173, 82 N. W. 375; Derr v. Dillen-ger, 75 N. C. 300; Woodward v. Mc-Collum, 16 N. Dak. 42. 11 N. W. 623; Scott Baldwin Co. v. Mc-Adams, 43 Okla. 161, 141 Pac. 770; Collins v. Creason, 55 Ore. 524. 106 Pac. 445; Siter's Appeal, 29 Pa. 71; Phillis v. Gross, 32 G. Dak. 438, 143 N. W. 373; Skaggs v. Kelly, (Tenn. Ch.) 42 S. W. 275; Taylor v. Interstate Investment Co. 75 Wash. 490, 135 Pac. 240.
39. 2 Story, Equity Jur. Sec. 790; 1 Perry, Trusts, Sec.Sec.122, 231; Pome-roy, Equity Jur. Sec. 1261; Lysaght v. Edwards, L. R. 2 Ch. Div. 499; Lenman v. Jones 33 Dist. Col. App. 7; McGinn v. Willey, 24 Cal. App. 303, 141 Pac. 49; Connecticut Fire Ins. Co. v. Colorado Leasing & C. Co., 50 Colo. 424, 116 Pac. 154; Jordan v. Johnson, 50 Ind. App.
213. 98 N. E. 143; Wolfe v. Iowa Railway & Light Co., 173 Iowa 277, 155 N. W. 324: Bailey v. Coffin, 115 Me. 495, 99 Atl. 447; Carpenter v. Douglass, 104 Miss. 74, 61 So. 161, 425; Carthage Tissue Paper Mills v. Carthage, 200 N. Y. 1, 9? N. E. 60; Miller v. Shelburn, 15 North Dak. 182, 107' N. W. 51; Dunn v. Yakish, 10 Okla. 338. 61 Pac. 926; Miles v. Hemen-way. (Ore.) I11 Pac. 696; Attle-berry v. Burnett, 102 Tex. 118, 113 S. W. 526.
40. 1 Perry, Trusts. Sec. 231: Pomeroy, Eq. Jur. Sec.Sec. 368, 1261; Rankin v. Dean, 157 Ala. 490, 47 So. 1015; Cross v. Bean, 83 Me. 61, 21 Atl. 752; Dorsey v. Hall, 7 Neb. '460; Sewell v. Underbill, 127 App. Div. (N. Y.) 92, 111 N. Y. Supp. 85.
41. See article by Professor Samuel Wiliiston in 9 Harv. Law Rev. at p. 116.
42. Townsend v. Champenowne, 9 Price 130; Greenhill v. Green-liill, 2 Vern. 679; Buck v. Buck, 11 Paige 170(semble).
43. Post Sec. 127, note 62.
44. Post Sec. 214.
Futhermore, by recording his contract, he can prevent the vendor from defeating his interest by a sale to an innocent purchaser.45 The vendor, so long as he retains possession, is liable to the vendee for acts of waste,46 and he cannot convey free from the purchaser's claim except to a bona fide purchaser for value.47 These considerations may justify the conclusion that the purchaser is, in the view of a court of equity, the owner of an estate or interest in the land, but that he is the owner of the land, that is, of the entire interest therein, to the exclusion of the vendor, is open to question.48 The vendor ordinarily has the right of possession of the land, even in the view of a court of equity,49 and he has such an interest, even when the purchaser has taken possession, as to entitle him to an injunction to restrain waste by the latter.50
45. Post, Sec. 567 (b).
46. Clark v. Ramuz  2 Q. B. 456; Holinberg v. Johnson, 45 Kan. 197, 25 Pac. 575; Compare Hellreigel v. Manning, 97 N. Y. 56.
47. 1 Pomeroy, Eq. Jur. Sec. 368; Birmingham v. Forney, (Ala.) 55 So. 618; Drake Lumber Co. v. Branning, 66 Fla. 543, 64 So. 263; Grooms v. Grooms, 141 Ga. 478, 81 S. E. 210; Glover v. Fisher, 11 Mich. 9; Jordan v. Johnson, 50 Ind. App. 213, 98 N. E. 143; Randolph v. Wheeler, 182 Mo. 145, 81 S. W. 419; Barney v. Chamberlain. 85 Neb. 785. 124 N. W. 482; Horgan v. Russell, 24 N. Dak. 490, 43 L. R. A. (N. S.) 1150, 140 N.W. 99; Derr v. Bellinger, 75 N. C. 300; Dillinger v. Ogden, 244 Pa. 20, 90 Atl. 446; Vermont Marble Co. v. Mead, 85 Vt. 20, 80 Atl. 852.
48. See Professor Langdell's argument that the contract can not properly have any effect in equity other than that which it has at law. 1 Harv. Law Rev. at p. 235.
49. Ackland v. Cuming 2 Madd. 28; Robertson v. Skelton, 12 Beav. 260; Burnett v. Caldwell, 9 Wall. (U. S.) 290, 19 L. Ed. 712; Nelson v, Shelby Mfg. Co., 96 Ala. 515, 11 So. 695, 38 Am. St. Rep. 116; Gates v. McLean, 70 Cal. 42, 11 Pac. 489; Marvel v. Ortlip, 3 Del. Ch. 9; Williams v. Forbes, 47 111. 148; Griffin v. Rochester, 96 Ind. 545; Wood v. Irving, 159 Iowa, 658, 140 N. W. 880; Niles v. Phinney, 90 Me. 122, 37 Atl. 880; Way v. Root, 174 Mich. 418, 140 N. W. 577; Olson v. Minnesota & N. W. R. Co. 89 Minn. 280, 94 N. W. 871; Cartin v. Hammond, 10 Mont. 1; Ives v. Ives, 13 Johns. (N. Y.) 235; Allen v. Taylor, 96 N. C. 37, 1 S. E. 644; Lee v. Summers, 2 Ore. 260; De Bois v. Baum, 46 Pa. 537; Welch v. Hover Schiffner Co. 75 Wash. 130, 134 Pac. 526.
50. Kerr, Injunctions (5th Ed.) 76; High, Injunctions (4th Ed.)
The statement, not Infrequently made,51 that the vendor holds the legal title in trust for the purchaser, is to be taken, it seems, with considerable reserve.52 Until the price has been paid, while the vendor holds the legal title subject to an equitable obligation to convey to the purchaser on payment of the purchase money, he has, unlike an ordinary trustee, a personal and substantial interest, which he may actively assert53 And, it might be added, unlike an ordinary trustee, he has the exclusive right of beneficial enjoyment for the time being, except in so far as this may be given to the purchaser by special agreement, constituting the latter, it is conceived, a tenant of the vendor.53a any intention as to the ownership. In the ordinary case, it is submitted, the risk of loss should fall upon the purchaser, in the sense that he must pay for the land regardless of the accidental dest ruction of the improvements thereon, for the reason that his contract contains no exemption from liability by reason of such destruction. The case appears to be closely analogous to that of the destruction of the improvements upon land leased, which, by the great weight of authority, does not relieve the tenant from liability for rent, in the absence of a specific provision to the contrary.57a
The statement that the purchaser, merely by reason of his contract to pay money to the vendor, is a trustee as to such money, which is in the ordinary case in no way identified,54 is certainly not correct, unless we give a very extended significance to the expression "trustee." He is no more a trustee for the vendor than is any person, who promises to pay money to another, trustee for such other.