him, although the houses were insured at the time of the agreement for sale, and the vendor permitted the insurance to expire without giving notice to the vendee; Lord Eldon being of opinion, that no solid objection could be founded on the mere effect of the accident; because, as the party by the contract became in equity the owner of the premises, they were his to all intents and purposes (I). This decision proceeded on the only principle upon which it can be supported-that the purchaser was in equity owner of the estate. And therefore, in a case where a similar accident happened to an estate sold before a Master, and the report had only been confirmed nisi, the loss was holden to fall on the vendor(b): nor does the rule extend to evidence of the title to the property (c).

(*) Lord Eldon's decision in Paine v. Meller, exactly accords with the doctrine of the civil law. Indeed this very case is put in the Institutes(d). "Cum autem emptio et venditio contracta sit, periculum rei venditæ statim ad emptorem pertinet, tametsi adhuc ea res emptori tradita non sit. Itaque si-aut ædes totæ, vel aliqua ex parte,

(b) Ex parte Minor, 11 Ves. jun. 559. Vide p. 60. See Zagury v. Furnell, 2 Camp. 240.

(c) Bryant v. Busk, 4 Russ. 1.

(d) III. xxiv. 3. Read Puff. de Jure Naturæ et Gentium, l. 5, c. 5,

s. 3.

(I) In the 2d vol. of Coll. of Decis. p. 56, are the two following cases: The peril of a house sold, and thereafter burnt, was found to be the buyer's, though the disposition bore an obligement to put the buyer in possession, because the buyer did voluntarily take possession and rebuild the house, and likewise was enfeoffed before the burning. Hunter v. Wilsons.-A house bought being burnt, the Lords found, that the property being transferred to the buyer, by his being enfeoffed, and the keys being offered to him, the accidental loss must follow the buyer, although there was a part of the price unpaid, there being a difference about it, which was referred to some friends to be determined, and which they had not done when the burning happened. Atchison v. Dickson.

incendio consumptæ fuerint-emptoris damnum est, cui necesse est, licet rem non fuerit nactus, pretium solvere."

It is hardly necessary to remark, that although the Court will enforce a specific performance, notwithstanding that the estate is destroyed, yet this will not be done unless the title be good, or the purchaser has, previously to the accident, waved any objections to it.

The case of Paine v. Meller may be considered as having also settled, that a purchaser would be entitled to any benefit accruing to the estate after the agreement, and before the conveyance; for Lord Eldon said, "If a man had signed a contract for a house upon that land which is now appropriated to the London Docks, and that house was burnt, it would be impossible to say to the purchaser, willing to take the land without the house, because much more valuable on account of this project, that he should not have it."

This also appears to have been admitted in a case(e) where a man contracted for the purchase of a reversion, and afterwards the lives dropped before the contract was carried into execution; for, although the Court did not decree a specific performance, they proceeded entirely on the laches and trifling conduct of the purchaser, and never even hinted that the contract should not be performed on account of the lives having dropped.

Indeed this point flows from the decision in Paine v. (*)Meller; and it was the rule of the civil law, that the purchaser should benefit by the accretion to the estate before the conveyance: nam et commodum ejus esse debet cujus periculum est(f).

These cases suggest the observation that, in agreements for the purchase of houses, some provision should be made for their insurance until the completion of the

contract.

(e) Spurrier v. Hancock, 4 Ves. jun. 667; and see P. Wms. 62. (f) Inst. ubi sup.

II. It equally follows, from the general rule of equity, by which that which is agreed to be done is considered as actually performed, that if a person agree to give a contingent consideration for an estate, as an annuity for the life of the vendor, and the vendor die before the conveyance is executed, by which event the annuity ceases, yet the purchaser will be entitled to a specific performance of his contract. This, we observe, is a much stronger case than that before discussed. There a loss was actually sustained, and the only question was, upon whom it should fall. But in this case, if performance of the agreement were not compelled, the parties would stand in precisely the same situation as before the contract; whereas, by performing the agreement, the estate is given to the purchaser, without his paying any consideration for it. A steady adherence to principle compels the Court to overlook the hardship of this particular case, and the doctrine rests upon high authority.

Thus in the case of Mortimer v. Capper(g), A. contracted to sell an estate to B. for 2001. and 50l. a year annuity; and two days after the contract was reduced into writing, A. was found drowned: the Lord Chancellor directed an inquiry as to the value of an annuity for the life of A., in order to introduce the question, whether an estate (*)being disposed of for an annuity, which is a contingency, the contract shall fall to the ground, if no payment of the annuity shall be made. He said, that he thought, if the price were fair, the contract ought not to be cut down, merely because the annuity, which was a contingent payment, never became payable.

The parties in the above cause were so well satisfied with the opinion of the Court, that they never, it is said, brought it back for further directions(h).

(g) 1 Bro. C. C. 156. See Wyvill v. Bishop of Exeter, 1 Price, 292. (h) See 3 Bro. C. C. 609, sed qu.

So in a later case(i), where A. sold an estate by auction, in consideration of a life annuity(1), the first payment to be made on the 25th of December 1787; but in case he should die before the 29th of September 1787, up to which time he was to receive the rents, the contract should be void. A. died on the 1st of February 1788, after a sudden and short illness of only two days; and owing to some delays, the conveyances were not executed. The quarter's payment, due at Christmas, was tendered to the vendor's agent by the purchaser, a few days after it became due; but the agent declined receiving it, saying, that the conveyance would be soon completed, and that it was not necessary for the purchaser to make such payment in the mean time. On the first hearing, Lord Thurlow said, he did not see that if an annuity was contracted for why the consideration should not be paid. It was, he said, objected, that the contract could not be carried into execution modo et forma, and that had great weight where there had been no payment. His Lordship afterwards made his decree for a specific performance, on payment of the arrears of the annuity, the consideration for the purchase of the estate.

(*) The case of Paine v. Meller bears on this point also. Lord Eldon, in delivering judgment, said, that as to the annuity cases, and all others, the true answer had been given; that the party has the thing he bought, though no payment may have been made; for he bought subject to contingency; and in the later case of Coles v. Trecothick, his Lordship expressed the same opinion().

But if in a case of this nature, a payment of the annuity become due before the death of the vendor, and the pur

(i) Jackson v. Lever, 3 Bro. C. C. 605.

(k) See 9 Ves. jun. 246.

(I) See Appendix, No. 13, for a statement of the new Annuity Act.

chaser neglect to make or tender it, he cannot insist upon a specific performance.

This was decided by the case of Pope v. Root(l). A. contracted with B. for the sale of an estate to him, in consideration of a life annuity, and the completion of the agreement was delayed by the illness of a mortgagee, who was to have been paid off. Two days after the time mentioned for completing the purchase, A. met with an accident, and died within a few days. By the terms of the contract, the first payment of the annuity became due previously to the death of A., but it was not paid or tendered. And Lord Chancellor Bathurst dismissed the bill for a specific performance, and the decree was affirmed in the House of Lords(m), (I).

The reader will observe, that the decisions in the cases of Mortimer v. Capper and Jackson v. Lever, do not infringe upon that of the House of Lords, in the prior case of Pope v. Root, but reduce the rules on this subject to an equitable and uniform standard; for the only case in (*)which a purchaser cannot require the assistance of equity, is where he has by laches forfeited his right to its aid, namely, where a payment of the annuity became due, and he neglected to pay or tender it.

To obviate all doubt, it seems advisable in agreements for purchase, where the consideration is an annuity for the life of the vendor, to expressly declare, that the death of the vendor, previously to the completion of the contract, shall not put an end to it, although a payment of the annuity shall not have become due, or having become due,

(1) 7 Bro. P. C. 184.

(m) See Lord Bathurst's decision in Baldwin v. Boulter, 1- Bro. C. C. 156, cited.

(I) One writer thought, that the inadequacy of the consideration influenced this decision; see 2 Pow. on Contracts, 76; but it does not appear that any inadequacy was actually proved.