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 (1).

Lord Eldon's decision in Paine and Meller, exactly accords with the doctrine of the civil law. Indeed it is remarkable, that this very case is put in the Institutes (m). "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, 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 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 (n)

(1) Ex parte Minor, 11 Ves. Jun. 559. Vide p. 48; see Zagury v. Furnell, 2 Campb. 240. (m) III. xxiv. 3. Read Puff. de

Jure Naturæ et Gentium, 1. 5. c. 5. s. 3.

(n) Spurrier v. Hancock, 4 Ves. Jun. 667; and see 1 P. Wms. 62. where

.

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 hiuted 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 (o).

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

contract.

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 perform. ing 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 (p), A contracted to sell an estate to B for 2007., and 50l. a year annuity; and two days after the contract was reduced into writing, A was found drowned; the Lord Chancellor directed an enquiry 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 pay. ment, 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 (q).

So in a later case (7), where A sold an estate by auction in consideration of a life annuity (I), 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,

(p) 1 Bro. C. C. 156; sec Wyvill v. Bishop of Exeter, 1 Price, 292.

(q) See 3 Bro. C.C. 609, sed qu. (r) Jackson v. Lever, 3 Bro. C. C. 605.

(I) See Appendix No. 12 for a statement of the new Annuity Act, and an enquiry into the expediency of raising the legal rate of interest.

that

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 execu tion 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 (s).

But if in a case of this nature, a payment of the annuity become due before the death of the vendor, and the purchaser neglect to make or tender it, he cannot insist upon a specific performance.

This was decided by the case of Pope v. Root (1). A contracted with B for the sale of an estate to him, in con-" sideration 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 per

(s) See 9 Ves. Jun. 216.

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

formance,

formance, and the decree was affirmed in the House of Lords (u), (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, shall not have been made or tendered; but that, on the contrary, the purchaser shall be entitled to a conveyance, on payment of the annuity up to the death of the vendor.

In the cases just dismissed, the purchaser, by the death of the vendor, obtained the estate without paying any, or only a nominal consideration for it. Perhaps a case may arise where the vendor having received the purchase-money, may, by the death of the purchaser, be entitled to retain the estate also, although he may not be his heir. This case was put in the argument of Burgess v. Wheate (x): a purchase,

(u) See Lord Bathurst's decision

in Baldwin v. Boulter, 1 Bro. C.C.

156, cited.

(x) 1 Blackst. 123.

(1) One writer has 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.