112 HARVARD LAW REVIEW, deciding the contrary.^ As the time for performance had passed, owing to the seller's default, the buyer could clearly not be com- pelled to take the property unless this default was waived, and it was for this reason that Lord Eldon made the question turn on the acceptance of the title. His language makes his view clear: " As to the mere effect of the accident itself, no solid objection can be founded upon that simply; for if the party by the contract has become in equity the owner of the premises, they are his to all intents and purposes. They are vendible as his, chargeable as his, capable of being encumbered as his ; they may be assets ; and they would descend to his heir." Since the decision of Paine v. Meller it has not been doubted in England that the buyer is not excused from fulfilling his promise to purchase by an accidental injury to the property.^ It is not sur- prising that the English law has had a marked effect upon the decisions in this country. A majority of the courts which have dealt with the subject have, either in dicta or decisions,^ indicated 1 A Brief Survey of Equity Jurisdiction, C. C. Langdell, i Harvard Law Review, 375, note i. " Lord Eldon held that the vendee must bear the loss, provided he had been put in default by the vendor before the loss happened, but not otherwise." The vendee could hardly be considered in default on any view. Though it rested with him to make the deeds, he would certainly not be in default immediately upon expressing himself as satisfied with the title. He would have a reasonable time thereafter to prepare the deeds, and in fact it was said when the title was accepted that the deeds would be ready in two or three days, a time which had not expired at the time of the fire. 2 There are dicta to this effect in Rawlins v. Burgis, 2 Ves. & B, 382, 387 ; Harford V. Furrier, i Mad. 532, 539 ; Acland v. Gaisford, 2 Mad. 28, 32 ; Robertson v. Skelton, 12 Beav. 260, 266; Coles v. Bristowe, L. R. 6 Eq. 149, 159, 160. In Poole v. Adams, 12 Weekly Rep. 683, Kindersley held, at suit of a cestui que trust, that a vendee from the plaintiff's trustee was bound to pay the price for an estate though the house had been destroyed, and could not claim the benefit of insurance money collected by the trustee and under agreement with the vendee allowed as part payment of the price, the trustee having misapplied the insurance money and become bankrupt. In Rayner v. Preston, 14 Ch. D. 297, it was held that a vendee of a house who after its destruction by fire before the time fixed for conveyance had paid the price in full, could not recover insurance money collected by the vendor. This decision was affirmed by the Court of Appeal, Brett and Cotton, L. JJ., James, L. J., dissenting. Thereafter in Castellain v. Preston, 8 Q. B. D. 613, II Q. B. D. 380, the Court of Appeal, reversing the decision of Chitty, J., unani- mously held the insurers entitled to recover back the insurance money paid, on the ground that it was paid in ignorance of the fact that the vendee had previously paid the price in full. In both cases all the judges recognized the doctrine of Paine v. Meller. « Osborn v. Nicholson, 13 Wall. 654, 660 (but see The Tornado, 108 U. S. 342,352, where Wells v. Calnan, 107 Mass. 514, was cited with approval) ; Willis v. Wozencraft, 22 Cal. 607, 618; Hough t;. City Fire Ins. Co., 29 Conn. 10; Lombard v. Chicago Sinai Cong., 64 111. 477, 482 ; Kuhn v. Freeman, 15 Kan. 423 ; Gammon v. Blaisdell,45 Kan. 221; Johnston z/. Jones, 12 B. Mon. 326; Calhoon v. Belden, 3 Bush, 674 j Marks v.
