It was recognized also in McKay v. Meyer (1918) 103 Wash. 270, 174 Pac. 12, that there must be a sufficient part performance to take the oral agreement to rescind out of the Statute of Frauds.

The contract must be executed. Ballard v. Ballard (1885) 25 W. Va. 470; Straley v. Perdue (1889) 33 W. Va. 375, 10 S. E. 780; Colburn v. Keyser (1924) 96 W. Va. 507, 123 S. E. 430. That an executory contract is not valid, see infra, IV. That it is valid, see supra, II.

An oral agreement annulling a contract of exchange of land, which is carried into effect partially by one of the parties restoring the possession of his land to the other, is held enforceable in Boggs v. Bodkin (1889) 32 W. Va. 566, 5 L.R.A. 245, 9 S. E. 891.

In Cunningham V. Cunningham (1899) 46 W. Va. 1, 32 S. E. 998, where one who had gone into possession of land under an oral contract for the purchase thereof was seeking to enforce specific performance of the contract, in an action in which the defendant did not rely on the Statute of Frauds in the defense, the court held that there was no need of proof of the contract, or of a writing to show it. It is stated that, in order to make out the defense of an oral rescission, possession must be given up, or, in the case of a contract in writing, the writing must be destroyed, but such an oral rescission is not good without something being done by way of execution of the rescission or waiver.

The leasing of property by the vendee in possession of land under a contract for the purchase thereof from his vendor, upon the abandonment or rescission of the contract of purchase, is held to be a sufficient, execution. Marsh v. Despard (1904) 56 W. Va. 132, 49 S. E. 24.

An oral rescission that has been executed by the surrender of possession by the vendee and the resumption of possession by the vendor is good. Cutwright v. Union Sav. & Invest. Co. (1908) 33 Utah, 486, 94 Pac. 984, 14 Ann. Cas. 725. The right of the purchaser under the contract involved in this case was subject to forfeiture

upon a failure or refusal to make the payment, or to comply with the terms of the contract, and this is given some emphasis in the decision; the court saying that where such is the case the purchaser may, "with the consent of the vendee, rescind the contract and abandon all of his rights under it; and if this be done by any acts or conduct which clearly manifest an intention to rescind or abandon the contract by both vendor and vendee, and the vendor takes possession in pursuance of the parol agreement, then the rescission is complete and binding on both parties." And it is added: "Moreover, where the contract itself provides for the forfeiture of the vendee's rights under the contract in case he fails to perform any of its provisions, then, if the vendor insists upon the forfeiture and repossesses himself of the premises, no writing is necessary to devest the vendee of his interest."

A contract for the sale of land is at an end where there is a distinct and independent parol agreement between vendor and vendee by which the contract is abandoned and rescinded, and the agreement is acted on and fully executed by the subsequent sale of the property by the owner to another person, with the consent and at the instance of the vendee, and by the vendee's surrender in effect of the premises to the subsequent purchaser, by his acceptance of the position of her tenant. Phelps v. Seely (1872) 22 Gratt. (Va.) 573.

Where owners who had entered into a contract for the exchange of property agreed that the exchange should be abrogated, whereupon the defendant, in a subsequent action, returned the plaintiff's abstract of title, destroyed a deed which he had executed, and thereafter rented the plaintiff's property, and paid that rental from that time on until the trial of the case, and also, relying upon the verbal agreement to rescind the contract, had made improvements upon his own property, and had entered into an agreement to mortgage the same to third parties, the contract for exchange will be held to be abrogated,

so that the plaintiff cannot enforce it. Stoner v. Fryett (1916) 91 Wash. 89, 157 Pac. 213.

In Beach v. Covillard (1854) 4 Cal. 315, the Statute of Frauds is stated to contain no provision with regard to the dissolution of agreements or contracts under seal for the sale of land; that, although the subsequent parol contract may be void, its execution takes it out of the statute, and it is binding on the parties.

The court in Johnson v. Worthy (1855) 17 Ga. 420, states it to be a well-settled rule that a parol rescission or mutual release of a contract in writing and under seal for the sale of land may be admitted as sufficient evidence of such release, if the rescinding contract has been executed.

See Pratt v. Morrow (1870) 45 Mo. 404, 100 Am. Dec. 381, infra.

The surrender of possession by the vendee under a contract of purchase of land to his vendor, who immediately enters into the possession, and soon after rents the property, and subsequently sells it, is held to amount to a rescission of the agreement in Dearborn v. Cross (1827) 7 Cow. (N. Y.) 48, so that the vendor could not thereafter maintain an action on notes given to evidence the purchase price. According to the court, the evidence shows not merely an executory agreement to rescind the contract, but an agreement executed and carried into effect by surrender of the possession and subsequent sale; and it is held not necessary to decide that a parol agreement to rescind the sealed contract is binding as an executory agreement.

A contract for the interchange of land cannot be specifically enforced where, upon a dispute arising as to the contract, it was proposed to set aside all the negotiations and break up the entire arrangement, which proposition was accepted and an agreement made that all papers held by either party should be surrendered. Bowman v. Cunningham (1875) 78 Ill. 48.

A purchaser of land who had gone into possession thereof under his contract, and who orally agreed to sell and surrender to the vendor his inter

est therein for a stated sum, and thereupon surrendered to the vendor the possession of the premises, was held not entitled to recover the agreed sum in Dougherty v. Catlett (1889) 129 Ill. 431, 21 N. E. 932. This decision is based upon several grounds: First, that there was no allegation of any cancelation or surrender of the contract to convey the land; second, that the doctrine of part performance, which is based upon the surrender of possession, is held to be a doctrine of equity, and not to prevail at law, and upon the further ground that the facts above set out amounted to a rescission of the defendant's contract, and that such rescission, coupled with the delivery of possession, should be held tantamount to a complete performance. The court says that there was no rescission averred, either directly or inferentially, and that a surrender of possession did not necessarily involve a rescission of the vendor's contract.

In Jevne v. Osgood (1870) 57 Ill. 340, where the contract was rescinded under an agreement by which the vendee was to return to the vendor the contract, and where the vendee had failed to comply with this obligation, the court states that, had the vendor filed bill to have the agreement surrendered up, the vendee could have replied that the contract to cancel was verbal and within the Statute of Frauds and unexecuted, or, had the vendee filed the bill for specific performance and the vendor had set up the agreement to cancel, the vendee could have urged that it was verbal, unexecuted, and void under the Statute of Frauds.

See Ponce v. McWhorter (1879) 50 Tex. 562, Hunt v. Evans (1921) Tex. Civ. App. —, 233 S. W. 854, and McDonald v. Whaley (1922) Tex.

That the vendee may estop himself from claiming specific performance is recognized in Faw v. Whittington (1875) 72 N. C. 321, where the court, reviewing the early case of Falls v. Carpenter (1835) 21 N. C. (1 Dev. &

B. Eq.) 237, 28 Am. Dec. 592, says it is clearly intimated that if the purchaser had surrendered to the vendor the bond for title, and the latter had delivered up the note and resumed his possession, these acts, or others equivalent thereto, would have constituted such an abandonment or renunciation; at least, to the extent that the court of chancery would not have exercised its jurisdiction and decreed a specific performance, but would rather have left the party to his action at law. It is stated that such a renunciation, however, operates not as passing an estate or interest in land, which cannot be done strictly under the act without writing, but operates as an equitable estoppel in the vendee to assert a claim to the specific performance where his conduct has misled the vendor intentionally.

The theory of this case is approved in Holden v. Purefoy (1891) 108 N. C. 163, 12 S. E. 848, where, however, it is added that "it seems also established that the circumstances may be of such an extraordinary character as not only to constitute a bar to specific performance, but to work in effect such a discharge of the contract, even as between the original parties, as to take away all remedy at law, as well as all claim to the ordinary equitable adjustment between the parties." It was held, however, in that case that, as between the vendor and vendee, the former, by bringing suit to recover the balance of the purchase money, waived any right to insist upon a discharge, and therefore the vendee was entitled, as against him, to a specific performance of the contract.

The court in Faw v. Whittington (N. C.) supra, recognizes a distinction between contracts to "sell or convey" and contracts or agreements made between vendor and vendee, mortgagor and mortgagee, after that relation between them is established, and which are intended to terminate that relation. This distinction is recognized also in Holden v. Purefoy (N. C.) supra.

c. Facts.

Where the vendee has been in possession of the land for a great number

of years as a tenant of the vendor and his representative, and where there are also other acts inconsistent with the continuance of the contract, the contract will be held to have been terminated. Miller v. Pierce (1889) 104 N. C. 389, 10 S. E. 554. It was accordingly held in this case that the heirs of the vendor could maintain an action in ejectment against the purchaser.

There is held to be no rescission of a contract on which the vendee had made a payment, where, on being dissatisfied with the title, he offered to abandon upon immediate repayment of the amount he had paid, but this offer was not accepted. Spinning v. Drake (1892) 4 Wash. 285, 30 Pac. 92, 31 Pac. 319.

A contract for the sale of standing timber cannot be abrogated by an oral agreement, unless accompanied by acts of part performance sufficient to take it out of the requirement of the law that it shall be in writing. Thill v. Johnston (1910) 60 Wash. 393, 111 Pac. 225.

IV. Rule that oral rescission is invalid.

a. In general.

It is the general doctrine of some cases that a contract for the sale of real estate cannot be surrendered, canceled, or abandoned by an oral agreement. Maxwell v. Wallace (1853) 45 N. C. (Busbee, Eq.) 251 (compare with North Carolina cases discussed supra, III. a); Dial v. Crain (1853) 10 Tex. 444; Sanborn v. Murphy (1894) 86 Tex. 437, 25 S. W. 61.

But in sustaining a recovery by the vendee of an amount of money which the vendor agreed to return to him upon an oral rescission of the contract, the court in E. F. Rowson & Co. v. McKinney (1913) Tex. Civ. App. -, 157 S. W. 271, says that the contract sued on was the oral one made by the vendor, and the Statute of Frauds has no application to it.

An agreement between the assignor and assignee of a land contract, that the assignment should be rescinded and that the contract should be taken and held by the assignee as security for debt owing him, was held invalid when made by parol. Richardson v.

Johnsen (1876) 41 Wis. 100, 22 Am. Rep. 712.

However, an oral rescission after the execution of the deed was sustained in Ponce v. McWhorter (1879) 50 Tex. 562, where the purchaser thereafter abandoned his claim to the land, and his vendor afterwards notoriously asserted and exercised ownership, and put parties in possession of it who erected valuable improvements. A parol rescission of what is stated to be a conveyance of land under which the grantee had taken possession was sustained in Hunt v. Evans (1921) Tex. Civ. App. 233 S. W. 854, without any question as to the Statute of Frauds. The court, however, cites and relies upon Ponce v. McWhorter. So, in McDonald v. Whaley (1922) Tex. 244 S. W. 596, the court allowed a purchaser of land to recover what he had paid thereon, where the contract had been canceled by an oral agreement, and in reliance on the cancelation he had so far acted that it would be inequitable and unjust to hold him bound by the original contract.

It has been held that a parol agreement that a contract for the sale of lands shall be abandoned is not good where the situation of the parties is not altered by it. Wilkins v. Evans (1821) 1 Del. Ch. 156.

At least, a contract of sale cannot be surrendered by a mere executory agreement. Cravener v. Bowser (1846) 4 Pa. 259, s. c. on subsequent appeal in (1867) 56 Pa. 132 (see Pennsylvania cases discussed supra, II. a); ANDERSON v. ANDERSON (reported herewith) ante, 292.

a.

See Illinois cases set out supra, III.

See Buckhouse v. Crossby (1737) 2 Eq. Cas. Abr. 33, 22 Eng. Reprint, 28, supra, II. a.

A contract for the sale of lands cannot be superseded by an executory oral agreement of resale of the premises. Goucher v. Martin (1839) 9 Watts 'Pa.) 106.

Compare with Pennsylvania cases discussed supra, II. a.

A contract for the sale of real estate cannot be surrendered by oral agree38 A.L.R.-20.

ment under a Statute of Frauds, expressly declaring that no estate or interest in lands shall be "surrendered" except in writing. Grunow v. Salter (1898) 118 Mich. 148, 76 N. W. 325 (apparently such a statute was in force at the time of this decision); Stewart v. McLaughlin (1901) 126 Mich. 1, 85 N. W. 266, 87 N. W. 218; Telford v. Frost (1890) 76 Wis. 172, 44 N. W. 835.

See Whiting v. Butler (1874) 29 Mich. 122, infra, IV. b.

In O'Donnell v. Brand (1893) 85 Wis. 97, 55 N. W. 154, there was held to be no effectual termination of a land contract where a vendee who did not have possession of the land stated that he did not want the land, and that he had to lose the money he had paid on account thereof, to which the vendor responded that he "must see about it," and made no reply beyond this, but immediately left the vendee.

The oral agreement between vendor and vendee to cancel the contract, the surrender by the vendor of the contract, and the agreement to surrender the check given in payment, and that payment of the check be stopped, and the taking up of the check from the bank, were held in Hutchins v. Da Costa (1894) 88 Wis. 371, 60 N. W. 427, to be acts which operated in law as a surrender and cancelation of all interest which the vendee had acquired in the land.

The Wisconsin statute involved in Telford v. Frost (Wis.) supra, provided that "no estate or interest in land shall be surrendered

unless by act or operation of law, or by deed or conveyance in writing subscribed by the party

surrendering. . . the same." The court says: "The section provides two ways of surrendering such estate or interest without any deed or conveyance in writing. One is by the 'acts' of the parties concerned; the other is by 'operation of law.' These two methods are frequently and perhaps generally present and coalesce in the same transaction. Such surrendering is nothing more than the effectual yielding up of such estate or interest to one having the immediate

reversion or remainder wherein such

particular estate or interest may merge. To be effectual, however, such act or acts must be inconsistent with the continuance of such former estate or interest, and must, moreover, be actually accepted and acted upon by the other, and in fact all the parties concerned. When such acts and acceptance so concur under such circumstances, the party thus surrendering is estopped from subsequently disclaiming the effectiveness of such surrender." In this case an optionee, who orally agreed with a third person that such person should purchase the property from the optionor, and should pay the optionee a specified sum for the privilege of such purchase, was permitted to recover of such third person the amount thus agreed upon. The court states that the contract between such third person and the optionor having been entered into by the procurement and at the request of the optionee, he thereby became effectually estopped from subsequently disclaiming the effectiveness of the oral agreement permitting such third person to take his place in purchasing the property from the optionor.

A sealed contract for the sale of land cannot be surrendered after default in payments, by an unexecuted parol agreement to rescind not founded on a new consideration. Pratt v. Morrow (1870) 45 Mo. 404, 100 Am. Dec. 381. See discussion, infra.

A contract for the sale of lands under which the vendee has gone into possession cannot be rescinded by oral agreement (Garver v. McNulty (1861) 39 Pa. 473); at least, not where the oral agreement is wholly executory (Lauer v. Lee (1862) 42 Pa. 165).

Compare with Pennsylvania cases discussed supra, II. a.

A parol agreement by a vendee in possession of land under an oral contract, to give up the land, was held void in Kelley v. Stanbery (1844) 13 Ohio, 408, where nothing was done under the agreement. In this case the vendee had gone into possession under his oral contract, and given back a mortgage to his vendor to secure the purchase price.

In McCulloch v. Tapp (1863) 2 Ohio Dec. Reprint, 678, where the purchaser had taken possession of the land, the court states generally that, by the written contract, he acquired an equitable interest in and title to the land, and, by reason of the Statute of Frauds, this equitable title and interest could not be devested except by a written contract, hence a verbal contract to rescind would, under the statute, be void.

But see Ohio cases discussed in II. a, supra.

See Dougherty v. Catlett (1889) 129 Ill. 431, 21 N. E. 932, supra, III. a.

The agreement which was introduced in McEwan v. Ortman (1876) 34 Mich. 325, a case sometimes cited on the point under annotation, was a contemporaneous agreement made at the time of the signing of the contract for sale, that the purchaser should have the option of retaining the contract and paying the note evidencing the purchase price, or surrendering the contract and requiring the vendor to pay it. The court, in holding such an agreement void under the Statute of Frauds, says: "Under the Statute of Frauds such a stipulation would be void unless in writing, and the offer was not merely to show by parol a change in the terms of a written contract, but to show such an agreement as could not have been made by parol under any circumstances. The surrender was meant to release an equitable estate in fee simple, and an agreement for such a purpose cannot be made except by an instrument in writing signed by the party releasing or transferring it. A verbal agreement to transfer any other parcel of land would be no more contrary to the statute than one to release or surrender a parcel mentioned in a contemporaneous contract."

A verbal arrangement between a husband who had deeded land to his wife, reserving to himself by written contract the right of possession and the right to repurchase within five years, with his wife, whereby he gave up his rights under the contract, in consideration of her agreeing to pay certain debts, was held void in Grover