for the purchase of the premises, and proved that, in part performance of the contract, she had paid a certain sum of money, and further gave in evidence written receipts showing that, after such payments, she had made other payments for rent for the same premises, the plaintiff may show that the contract of sale had been rescinded by oral agreement and a contract of leasing substituted. McClure v. Jones (1888) 121 Pa. 550, 15 Atl. 659. Compare with Pennsylvania cases discussed infra, IV. a.

A vendee under a verbal contract for the purchase of land, who has entered into possession of the land and made improvements, and subsequently agreed with his vendor that the contract of purchase should be rescinded, the consideration being furnished in part by the delivery of a horse, which was then and there actually delivered and accepted, and in part by an agreement to execute two notes, was held to have an enforceable contract against his vendor, in Sutton v. Sears (1858) 10 Ind. 223. Seemingly the theory of the court is that the contract for the rescission of the land does not fall within the Statute of Frauds which relates to contracts for the sale of land, the court stating that this is not a contract for the sale of land, since the title to the land is already in the vendor.

The single point of the case of Goman v. Salisbury (1684) 1 Vern. 241, 23 Eng. Reprint, 440, was whether an agreement in writing made since the Statute of Frauds and Perjuries might be discharged by parol, and the court held it might. This case was cited as authority to this point in Buckhouse v. Crossby (1737) 2 Eq. Cas. Abr. 32, 22 Eng. Reprint, 28, where the Lord Chancellor said that he would not say that a contract in writing could not be waived by parol, yet he should expect of such a case a very clear proof, and proof was held insufficient. The chancellor further observes that an agreement to waive a purchase contract is as much an agreement concerning land as the original contract, but states that there was no occasion to determine that point, since the evidence was insufficient, as above stated.

In Stone v. Buckner (1849) 12 Smedes & M. (Miss.) 73, the court holds it competent for a party to waive the provisions of a written agreement by parol, so far as to enable the other party to the contract to defend on the ground of waiver.

But in Connor v. Tippett (1880) 57 Miss. 594, it was held that an exchange of lands by the occupants of the respective tracts under bond for title cannot be affected by an oral agreement under which each surrendered to the other possession of the respective tracts, and transferred by delivery the respective title bonds.

b. Theory.

It is the theory of some cases that the Statute of Frauds does not relate to an agreement to abandon or rescind a contract for the sale of land. McKinney v. Flanery (1924) 205 Ky. 766, 266 S. W. 629; Proctor v. Thompson (1882) 13 Abb. N. C. (N. Y.) 340. See Sutton v. Sears (1858) 10 Ind. 223, supra, II. a.

It

The court in Proctor v. Thompson (1882) 13 Abb. N. C. (N. Y.) 340, says: "The Statute of Frauds regulates the manner of making contracts with regard to the proof of them; it requires that the contract for the sale of the lands should be in writing and subscribed by the party by whom the sale was made. The statute avoids all contracts for that purpose which are not made as it prescribes. And, after it is made, it can only be proved by the writing; and all the terms must be contained in the writing itself. does not permit new specifications to be added by parol to the written paper. It is rigorous in its requirements that the written paper shall contain the whole contract as made. But the statute goes no further than this. It does not attempt to control the performance of the contract, nor to prescribe the manner of its dissolution or of its abandonment. Such things are not necessary to the attainment of its object. That was that parties should not have burdensome contracts, which they never made, imposed upon them, and that the terms of those contracts should not depend upon the imperfect and uncertain recollection of interest

ed witnesses. But that object is attained by the law which controls the manner of making the contract, and it did not need to prescribe the manner of its performance. Nor has it done so. It has, after the contract is made, left it to be governed by the rules which govern other written contracts, only requiring that the terms of the contract should at all times be sought within the writing. It says nothing about its abandonment or dissolution or rescission. These are not required to be in writing. The statute is not concerned with the contract after it has been made, and to require an abandonment of it to be in writing would be to add to the statute a provision which it does not now contain; the contract which must be in writing is the contract for the sale. When that is put in writing and signed by the seller, the statute is satisfied. A dissolution of the contract comes after this. It is no part of the original, nor does it add a new term to it. It is something subsequently existing by the acts of the parties, by reason of which the former contract has ceased to be enforceable as a contract, and it does not in any way come within the statute."

The court in Ely v. Jones (1917) 101 Kan. 572, 168 Pac. 1102, refers to the various theories sustaining a verbal contract to rescind a contract for the sale of land, saying that, according to some cases, it is upheld under the peculiar language of the statute; that other decisions rest upon the proposition that the contract of rescission is valid after it has become executed; and that still other courts hold the written contract within the Statute of Frauds may be rescinded or abandoned by subsequent oral agreement, on the theory that the Statute of Frauds operates only on the original contract, and not upon its rescission or modification or abandonment.

In Sieker v. Sieker (1911) 89 Neb. 123, 130 N. W. 1033, where the parties agreed to rescind, and thereupon the contract was destroyed and the consideration returned to the purchaser, the court says: "While we agree with

the plaintiff that the simple burning up of a contract whereby an interest in real estate has passed to another does not in any way rescind the contract, we are convinced that there is something more in this case than the mere destruction of the papers. We are satisfied from the evidence that it was the intention of plaintiff at the time he procured his copy of the contract, delivered it to his mother, and consented to its destruction, to rescind and abandon the contract, and allow his mother to retain her home, and that his purpose to do so was as certainly evidenced by the surrender and destruction of the paper as it would have been had he executed a written release or revocation. We think it is now settled law that where parties have entered into a contract for the purchase and sale of real estate, they may afterwards, by the destruction of the written paper evidencing the same, under an oral agreement that the contract shall be rescinded and thereafter held for naught, effectually do away with the previous agreement. The destruction of the written contract, with the intention of revesting the title in the original owner, will be held in equity to have as much effect as a written conveyance."

The court in Buel v. Miller (1827) 4 N. H. 196, says simply that executory agreements in writing not under seal for the sale of land may, before breach, be discharged and abandoned by a subsequent unwritten agreement, as well in cases where the original contract is required by the Statute of Frauds to be in writing as where writing is unnecessary.

The court in King v. Morford (1831) 1 N. J. Eq. 274, treats the question as one of waiver, and says: "That a waiver may be by parol is now well settled." The action in King v. Morford was by the vendee to obtain specific performance of the contract, the oral abandonment or waiver being set up by way of defense.

On the contrary, it is stated in Huffman v. Hummer (1866) 18 N. J. Eq. 83, 2 Mor. Min. Rep. 242, that “a written contract, especially one required by statute to be in writing, cannot be

waived or discharged by parol, at law, nor, in general, in equity." But it is held that an action for specific performance is an exception to this rule; that "when the complainant has, by parol, waived or discharged a contract, and the defendant, by such action, has entered into obligations inconsistent with its performance, it is an equity that will bar the remedy by specific performance."

In holding that a rescission resulted where the vendee, who was in default, came to the vendor and stated to him that he could not keep the land,—that he could not pay for it,-and it was then and there agreed that the contract should be declared forfeited, canceled, and void, and that the farm should belong to the vendor, the court in Davis v. Willis (1890) 57 Hun, 200, 10 N. Y. Supp. 883, holds that an instruction to the effect that, if the minds of the parties met upon the parol agreement to abandon and declare the contract void, such an agreement was valid and operated as of that time to rescind the contract. And an instruction that the agreement must have been consummated or carried out in order to validate the surrender was held error.

The court in Mahon v. Leech (1902) 11 N. D. 181, 90 N. W. 807, says: "The fact that the relinquishment was not in writing is not important. That the mutual rights and obligations of the parties to a written contract for the purchase and sale of real estate may be waived and the contract annulled and extinguished by parol is well settled. It is also well settled that where a party has been grossly negligent of his rights, or has abandoned his contract, a court of equity will not extend to him the extraordinary relief afforded by specific performance."

o. Facts.

A vendor can maintain no action for damages for breach of the contract after it has been rescinded by an oral agreement of the parties. Ely v. Jones (1917) 101 Kan. 572, 168 Pac. 1102. In Carr v. Williams (1877) 17 Kan. 575, overruled by Ely v. Jones, the purchaser was in possession of the land;

it is assumed that he offered to perform the agreement imposed upon him by the oral agreement; and the court says the only question left is whether the parol executory contract is valid or not. This question is answered in the negative, as above indicated.

The action in Keeney v. Waters (1909) 135 Ky. 525, 122 S. W. 837, was by an heir of the vendor to recover the land from assignees of the vendee. In Warden v. Bennett (1911) 145 Ky. 325, 140 S. W. 538, the action was by the vendee specifically to enforce the contract. Possession had been delivered in Keeney v. Waters (Ky.) supra, but apparently not in Warden v. Bennett (Ky.) supra. In Osborn v. Osborn (1924) 204 Ky. 144, 263 S. W. 738, the court states that where there is a mere contract to convey title, and no title has vested in the obligee, the contract can be rescinded by parol agreement. The evidence as to what occurred at the time of the redelivery of the title bond in Osborn v. Osborn was conflicting, but in view of the subsequent conduct of the parties, and particularly the failure of the vendee to take any steps to enforce and carry out the contract, the appellate court held that the trial court did not err in holding that the bond was redelivered to the obligors, with the mutual understanding that it should be no longer enforced, and that the contract was thereby rescinded. The action in Osborn v. Osborn (Ky.) supra, was by grantee of the vendor to quiet title to his interest in the land. In McKinney v. Flanery (1924) 205 Ky. 766, 266 S. W. 629, the contract for the sale of the land was surrendered upon the agreement to rescind it, and destroyed in the presence of several witnesses; thereafter the purchaser removed from the premises and the vendor occupied them. The action in Asher v. Helton (1907) 31 Ky. L. Rep. 9, 101 S. W. 350, was by the heirs of the vendor against an assignee of the land contract, to recover damages for trespass, involving the cutting and carrying away of timber growing upon the tract of land. To the claim of ownership set up by the defendant under the title bond, the

plaintiffs claimed that the title bond had been rescinded by oral agreement. The court says that if the vendor and vendee had mutually agreed to a cancelation or rescission of the title bond before the rights of third parties intervened, it would be fully as effective between them as a written cancelation.

In Sieker v. Sieker (1911) 89 Neb. 123, 130 N. W. 1033, a son had entered into a contract with his parents for the purchase of land. Subsequently the father died, leaving a will, whereby he devised the land to his wife. After the father's death, the son and mother agreed that the mother should have the land back, and thereupon the contract and duplicate were destroyed, and the consideration paid by the son was subsequently returned to him. Specific performance at the suit of the vendee was denied.

Adjoining owners who have agreed that a contested boundary line shall be settled by referees, and that the parties shall make and deliver quitclaim deeds each to the other in such manner as to carry into effect the decision of the referees, may agree by parol that no deeds shall be given. Buel v. Miller (1827) 4 N. H. 196.

In Davis v. Willis (1890) 57 Hun, 200, 10 N. Y. Supp. 883, an agreement between the vendee of premises while in default and the vendor, that the contract should be declared forfeited, canceled, and void, was held to terminate the contract.

Specific performance of a contract for the sale of real estate was denied in Mahon v. Leech (1902) 11 N. D. 181, 90 N. W. 807, where a trustee for creditors of the vendee had a conference with the creditors, at which the creditors refused to advance any money necessary to comply with the conditions of the contract, and proposed a surrender, and thereafter absolutely declined and refused to perform the conditions of the contract, and, about six months thereafter, the vendor, as a last resort, accepted the surrender and abandonment so made by the trustee and creditors, and with full knowledge and consent of the trustee and the creditors, and without objection on the part of anyone, and

in reliance upon and induced by such abandonment and surrender, entered into possession and farmed the land, and subsequently sold it.

A written contract for the sale of land, entered into by the owner with his lessee under a written lease, was held to have been abandoned and annulled in Haugen v. Skjervheim (1905) 13 N. D. 616, 102 N. W. 311, where the purchaser, not being able to comply with the terms of the agreement of purchase, agreed to give up the contract of sale, and to continue to occupy the land and cultivate it under the lease, and the contract was thereafter abandoned, and the purchaser occupied the land under the terms of the lease, so that a purchaser from the vendee was not entitled specifically to enforce the written contract.

The right of the purchaser who has abandoned a contract after having made certain payments, to recover any portion of the payments, is controlled by equitable principles, according to the court in Harrington v. Eggen (1924) N. D., 199 N. W. 447, where the purchaser was seeking to recover certain payments.

In Guthrie v. Thompson (1861) 1 Or. 353, where the mortgagor and mortgagee of land, subsequent to the mortgage, entered into an agreement for a sale of an undivided part of the property, it was held that the action of the mortgagee to foreclose his mortgage would not be enjoined, and a specific performance of the contract. of sale decreed, where the parties had abandoned the contract of sale.

A written contract for the sale of land may be rescinded and a rent contract substituted by parol. Moseley v. Witt (1907) 79 S. C. 141, 60 S. E. 520. The action was one by the vendee for specific performance, but no point is made of the form of action.

In Epstein v. Waas (1923) 28 N. M. 608, 216 Pac. 506, the vendor and vendee mutually agreed to a rescission of the contract, and, as a part of such agreement, the vendor agreed to return the cash payment made, less the amount of commission to be charged by the broker who made the sale, and

good.

a. In general.

As shown in subdivision II. hereof, some cases sustain an oral rescission of a contract for the sale of lands, and in at least some of the cases there considered, the rescission is sustained on a theory that renders valid a rescission wholly executory. In subdivision IV., infra, the cases that hold an oral rescission invalid are discussed. As there appears, some of those cases involved executory agreements. In other of the cases there discussed, the agreement may have been executed. In the present subdivision, the cases which clearly and definitely make the executed character of the oral agreement the determinative element, or at least require that some action be taken on the oral agreement, are discussed.

In some cases recognizing that a contract for the sale of land may be abandoned without a writing, it is held that there must be something more than the mere oral agreement of the parties. Miller v. Pierce (1889) 104 N. C. 389, 10 S. E. 554; Robinett v. Hamby (1903) 132 N. C. 353, 43 S. E. 907; Spinning v. Drake (1892) 4 Wash. 285, 30 Pac. 82, 31 Pac. 319; Thill v. Johnston (1910) 60 Wash. 393, 111 Pac. 225.

Compare with Maxwell v. Wallace (1853) 45 N. C. (Busbee, Eq.) 251, infra, IV. a.

See Faw v. Whittington (1875) 72 N. C. 321, and Holden v. Purefoy (1891) 108 N. C. 163, 12 S. E. 848, infra, III. b.

And see cases infra, IV. a, in which an executory contract was held invalid.

There must be acts and conduct constituting such abandonment, that

are positive, unequivocal, and inconsistent with the contract. Miller v. Pierce (1889) 104 N. C. 389, 10 S. E. 554; Robinett v. Hamby (1903) 132 N. C. 353, 43 S. E. 907.

Such a rescission must be evidenced by acts accompanying the rescission, which leave no doubt of the intent, such as canceling the agreement or removing from the possession when the contract rests only in parol. Lauer v. Lee (1862) 42 Pa. 165.

In Brownfield v. Brownfield (1892) 151 Pa. 565, 25 Atl. 92, it is stated that, to make a parol rescission effectual as against the purchaser, there must be a yielding up of the possession or some other equally unequivocal act.

A written contract for the sale of land cannot be surrendered by parol without consideration and without a surrender of the instrument. Wells v. Wayman, 1 Lack. Leg. Rec. (Pa.) 485, as set out in 3 Brightiy's Dig. (Pa.) col. 3880.

The court in May v. Getty (1905) 140 N. C. 310, 53 S. E. 75, seems to recognize that the written contract may be rescinded by parol, and requires acts which are positive, unequivocal, and inconsistent with the existence of a contract only when an abandonment is sought to be proved.

According to the court in Spinning v. Drake (1892) 4 Wash. 285, 30 Pac. 82, 31 Pac. 319, in order that a court of equity may be moved to treat such a contract as already rescinded by the act of the parties, there must be, in the first place, a certain agreement to rescind, and, secondly, something done in pursuance of it, either by putting the agreement into writing, or by one of the parties, to the knowledge of the other, taking action in reference to the property which will be to his disadvantage unless the rescission be carried out.

In Woolen v. Sloan (1917) 94 Wash. 551, 162 Pac. 985, it is stated that a contract which the statute requires to be in writing cannot be abrogated or rescinded by subsequent oral contract, unless such oral contract is accompanied by acts of part performance sufficient to remove the requirement that it shall be in writing.