the vendee's agreement has been fully performed except as to the payment of the last installment and the time for the latter has arrived, what is the interest of such vendee as regards the property? Has he, as so often assumed, merely a contractual right to have title passed to him by consent of the vendor, on final payment being made; or has he, irrespective of the consent of the vendor the power to divest the title of the latter and to acquire a perfect title for himself? Though the language of the cases is not always so clear as it might be, the vendee seems to have precisely that sort of power.[1] Fundamentally considered, the typical escrow transaction in which the performance of conditions is within the volitional control of the grantee, is somewhat similar to the conditional sale of personalty; and, when reduced to its lowest terms, the problem seems easily to be solved in terms of legal powers. Once the "escrow" is formed, the grantor still has the legal title; but the grantee has an irrevocable power to divest that title by performance of certain conditions (i. e., the addition of various operative facts), and concomitantly to vest title in himself. While such power is outstanding, the grantor is,
- ↑ Though the nebulous term "rights" is used by the courts, it is evident that powers are the actual quantities involved.Thus, in the instructive case of Carpenter v. Scott (1881), 13 R. I., 477, 479, the court said, by Matteson, J.: "Under it (the conditional sale) the vendee acquires not only the right of possession and use, but the right to become the absolute owner upon complying with the terms of the contract. These are rights of which no act of the vendor can divest him, and which, in the absence of any stipulation in the contract restraining him, he can transfer by sale or mortgage. Upon performance of the conditions of the sale, the title to the property vests in the vendee, or in the event that he has sold, or mortgaged it, in his vendee, or mortgagee, without further bill of sale. * * * These rights constitute an actual, present interest in the property, which, as we have seen above, is capable of transfer by sale or mortgage."It is interesting to notice that in the foregoing passage, the term "right" is first used to indicate privileges of possession and use; next the term is employed primarily in the sense of legal power, though possibly there is a partial blending of this idea with that of legal claim, or right (in the narrowest connotation); then the term (in plural form) is used for the third time so as to lump together the vendee's privileges, powers and claims.For another case indicating in substance the true nature of the vendee's interest, see Christensen v. Nelson (1901), 38 Or. 473. 477, 479, indicating, in effect, that the vendee's powers as well as privileges may be transferred to another, and that a proper tender constitutes "the equivalent of payment."
