Mar. 1903.] Opinion of the Court.-ANDERS, J. This court held, in Seattle & M. Ry. Co. v. Scheike, 3 Wash. 625 (29 Pac. 217), that the lessee of land condemned by a railroad company is entitled to the damages resulting to his leasehold estate. And in Enoch r. Spokane Falls & N. Ry. Co., 6 Wash. 393 (33 Pac. 966), we held that, where a railroad company appropriates public lands of the United States upon which a pre-emption entry has been properly made prior to the filing of a profile of the road in the office of the secretary of the interior, the railroad company is liable for damages, although the pre-emption claimant is not at the time entitled to a patent from the government. The decisions of this court above cited are based upon the conception that the interest of the respective parties therein mentioned is included in the terms "land" and "real estate," for on no other theory could such interest be condemned at all. In Fish v. Fowlie, 58 Cal. 373, the supreme court of California, having under consideration the interest of the vendee under an executory contract of sale of land, said: "The words 'real property' are co-extensive with lands, tenements, and hereditaments. 'Land' also embraces all titles, legal or equitable, perfect or imperfect, including such rights as lie in contract-those which are executory as well as those which are executed. Any interest, therefore, in land, legal or equitable, is subject to attachment or execution, levy and sale." And this court has held that under $5200, Bal. Code, which provides that "all property, real and personal, of the judgment debtor, not exempt by law, shall be liable to execution," equitable as well as legal estates may be sold on execution. Calhoun v. Leary, 6 Wash. 17 (32 Pac. 1070). It was held by the supreme court of Wisconsin in Martin Opinion of the Court.-ANDERS, J. [31 Wash. r. Scofield, 41 Wis. 167, that a vendee in an ordinary land contract, with right of possession, is to be regarded as the equitable owner, and as such owner may maintain an action of trover or replevin for timber taken from the land without his consent. In that case it appeared that the owner of the lot from which the logs in controversy were taken executed to the plaintiff in the year 1871 a contract to convey to him, upon his paying to her $200, with interest thereon, in one year, in addition to $57.04 paid at the time the contract was executed. At the time of the trial the $200 had not been paid, but the interest had been paid up to February 1, 1875. The contract provided, among other things, for re-entry in case the vendee should make default in his payments, for a right of distress upon the premises for arrears of interest, and for the recovery of damages for waste. In regard to the relation between the parties to the contract, and the effect of the contract upon the ownership of the land, the court said: "It has often been held that the relation between the parties to a contract for the conveyance of land is analogous to that of equitable mortgagor and mortgagee in fee of the land affected by the contract. And such is the relation the plaintiff and Mrs. Whitney [the vendor named in the contract] sustain to each other in respect to the land in question. We have no difficulty, therefore, in holding that, when the logs were cut by Coppersmith, the equitable estate in the land upon which they were cut, and the possession and right to the possession of the land, were in the plaintiff. It follows, on the authority of Northrup v. Trask, 39 Wis. 515, that the plaintiff was the owner of land, and, of course, of any timber cut upon it, subject only to the right of Mrs. Whitney as mortgagee, and that he alone could maintain trover or replevin for timber and logs taken therefrom without his consent." Mar. 1903.] Opinion of the Court.-ANDERS, J. The doctrine announced in the case last cited as to the relation between the parties to a valid contract for the sale of land is so firmly settled against the contention of the relators "by a train of uncontroverted authority" that it is now beyond the realm of legitimate controversy. This doctrine of "equitable conversion" has been applied in a great variety of cases, and under divers circumstances. It was recognized and applied, without hesitation, by the supreme court of Pennsylvania in an action of ejectment (which was, of course, an action at law) in the case of Kerr v. Day, 14 Pa. St. 112 (53 Am. Dec. 526). In that case the trial court instructed the jury as follows: "(2) That an agreement to give a party an option of purchasing certain land is a mere personal covenant or agreement, and not such an agreement as vests any interest, legal or equitable, in the land the subject of the contract; and that the defendant, claiming under such agreement alone, without any act of election previous to the sale to the plaintiff, has no such title to the land as furnishes the foundation of a defense to an action of ejectment." The defendant held the land there in question under an optional contract of sale, and the plaintiff claimed it as owner by virtue of a conveyance made to him by defendant's vendor, the holder of the legal title. Upon that state of facts the appellate court held that the instruction above set forth was erroneous. And the ground upon which the court rested its decision is clearly and tersely stated in the opinion delivered by BELL, J., in the following language: "The ground upon which a chancellor executes an executory contract for the sale of lands is that equity looks upon things agreed to be done as actually performed; consequently, when an agreement is made for the sale of an estate, the vendor is considered as a trustee for the purchaser of the estate sold, and the purchaser as a trustee of the purchase money for the vendor. The vendee is, Opinion of the Court.-ANDERS, J. [31 Wash. in contemplation of equity, actually seised of the estate, and is, therefore, subject to any loss that may happen to it between the agreement and the conveyance, and will enjoy any benefit which may accrue in the same interval. As a consequence, he may sell or charge the estate before conveyance executed; and the death of either vendor or vendee, even before the time of completing the contract, is held to be entirely immaterial. As a result of this principle, which seems to be of general application, it is settled that an estate under contract of sale is regarded as converted into personalty from the time of the contract, notwithstanding an election to complete the purchase rests entirely with the purchaser; and, if the seller die before the election be exercised, the purchase money, when paid, will go to his executors as assets." In the case of Lysaght v. Edwards, L. R. 2 Chan. Div. 499, JESSEL, M. R., speaking of the effect of a contract for the sale of lands, said: . . "A valid contract actually changes the ownership in equity. It must, therefore, be considered to be established that the vendor is a constructive trustee of the purchaser of the estate from the moment the contract is entered into. The fact of the purchaser's being able to pay or not being able to pay is immaterial. tract is made, if valid." See, also, King v. Ruckman, 21 N. J. Eq. 599;Keep v. Miller, 42 N. J. Eq. 100 (6 Atl. 495); 1 Sugden on Vendors (8th Am. ed. by Perkins), p. 270 et seq.; Craig v. Leslie, 3 Wheat. 563; Haughwout v. Murphy, 22 N. J. Eq. 531, 546. In the New Jersey case last above cited, the court observed: "In equity, upon an agreement for the sale of lands, the contract is regarded, for most purposes, as if specifically executed. The purchaser becomes the equitable owner of the lands, and the vendor of the purchase money. After the contract, the vendor is the trustee of the legal Mar. 1903.] Opinion of the Court.-ANDERS, J. estate for the vendee. Before the contract is executed by conveyance, the lands are devisable by the vendee, and descendible to his heirs as real estate; and the personal representatives of the vendor are entitled to the purchase money." And Warvelle, in his work on Vendors, vol. 1, p. 197-8, lays down the rule as follows: "Where the purchaser has been let into possession, he is, in equity, the owner, subject only to the lien of the vendor for the unpaid purchase money.. He has a right to the free use and enjoyment of the property, and to the rents, issues, and profits thereof, so long as he is not in default under the contract. He may mortgage it for the payment of his debts; may sell and assign his rights to another; or may create a privilege or easement upon any part of the premises which will be valid and binding, but liable to be defeated should there be a failure to pay the balance of the purchase money according to the terms and conditions of the contract of purchase." The doctrine of equitable conversion has also been frequently invoked in determining upon whom should fall the loss, and who should be entitled to the insurance, if any, in case of destruction by fire of buildings situated upon land under an executory contract of sale. See Reed v. Lukens, 44 Pa. St. 200 (84 Am. Dec. 425); Marks v. Tichenor, 85 Ky. 536 (4 S. W. 225); Brewer v. Herbert, 30 Md. 301 (96 Am. Dec. 582); Taylor v. Holmes, 14 Fed. 498. In the well-considered case of St. Louis, etc., R. R. Co. v. Wilder, 17 Kan. 239, it was held that a vendee under a bond for a deed is regarded as the real owner of the land, even before full payment of the purchase price is made, and that he, and not the vendor, is entitled to receive the damages if part of the land is taken in a proceeding for condemnation. See, also, Kuhn v. Freeman, 15 Kan. 423; Pinkerton v. Boston & A. R. R. Co., 109 Mass. 527; |