v. Buck (1876) 34 Mich. 519, under the Statute of Frauds.

b. Theory.

According to the court in Wilkins v. Evans (1821) 1 Del. Ch. 156, to waive a written contract for the sale of land would be as much a contract about land as to make it.

In Whiting v. Butler (1874) 29 Mich. 122, Campbell, J., says that the Statute of Frauds covers every imaginable case where an interest is devested by any act of a party concerned, and that it applies to surrenders as well as transfers, and excludes the idea that there can be any waiver unless it is written.

The court in Pratt v. Morrow (1870) 45 Mo. 404, 100 Am. Dec. 381, says that the record in that case fairly presents the question whether a verbal agreement to rescind a contract under seal for the sale of land, made after payments are due, which agreement is founded upon no new consideration, and is not followed by any action of either party in relation to the land or the writing, will be treated as valid in a suit by the vendor for the stipulated purchase money. In answering this question in the negative, the court says that the tendency is to validate unexecuted parol agreements to rescind sealed contracts for the sale of land founded upon a new consideration, and thus far to abolish the distinctions between sealed and unsealed written instruments, but it is added that the question cannot arise without proof of consideration for the parol agreement. It is further stated that a verbal agreement merely to rescind without new consideration is not sufficient to discharge the contract; that there should be something more. The sale must have been actually abandoned by both parties, and the property, as far as possible, restored to the vendor, or, at least, if the agreement was unexecuted, it must have been founded upon a new consideration and clearly proved.

In holding that the rights acquired by a purchaser of real estate who took an assignment from his vendor of the deed to the vendor could not be sur

rendered by parol, the court in Maxwell v. Wallace (1853) 45 N. C. (Busbee, Eq.) 251, says that, by the purchase, the vendee acquired an interest in the land which brought it within the Statute of Frauds, and it could not be conveyed by parol.

In holding that an oral agreement by a vendee in possession of land under an oral contract, to give up the land, was void where nothing was done thereunder, the court in Kelley v. Stanbery (1844) 13 Ohio, 408, says that the agreement is within the Statute of Frauds and void; that no interest in land, equitable or otherwise, passes by parol only. It is further stated to be true that a parol agreement executed by possession taken will be enforced, but an equitable interest once acquired in land cannot be parted with except by writing, or by the same means that it was acquired.

In Goucher v. Martin (1839) 9 Watts (Pa.) 106, the court states it to be a general rule that no estate or interest in land shall pass but by deed or some instrument in writing signed by the parties, and it is held immaterial whether the interest be legal or equitable, as an equitable interest is an interest in land which comes within the word and spirit of the Statute of Frauds. It is accordingly held that the vendee cannot resell the land to his vendor by parol, unaccompanied by any act which, according to the decisions of the court, takes it out of the operation of the statute. The court here emphasizes the distinction between a mere waiver or discharge of the contract of sale and a repurchase such as was involved in this case, on different terms and conditions than contained in the original agreement. It is admitted, at least for the sake of the argument, that such a contract might be waived, but it is said that that point does not arise in this case, for there was no proof whatever of any waiver of the original bargain, but the case was presented on the fact of a contract of sale and a repurchase of the land on different terms and conditions from the original agreement. See Boyce v. McCulloch (1842) 3

Watts & S. (Pa.) 429, 39 Am. Dec. 35,

supra.

According to the court, a contract for the sale of land that is valid under the Statute of Frauds cannot be subject to a rescission by oral agreement, for such a rescission would be as much obnoxious to the provisions of the statute as would a contract for the sale of land. Dial v. Crain (1853) 10 Tex. 444.

c. Facts.

The oral rescission being invalid, the written contract may be enforced. Wilkins v. Evans (1821) 1 Del. Ch. 156.

The vendor may maintain an action for interest due according to the terms of the contract. Grunow v. Salter (1898) 118 Mich. 148, 76 N. W. 325.

A vendor who has repurchased the land on different terms and conditions from his vendee, who has gone into possession, cannot maintain an action in ejectment to recover the land. Goucher v. Martin (1839) 9 Watts (Pa.) 106.

An agreement between vendor and vendee under which the vendee went into possession of the land, and cleared and cultivated it, cannot be rescinded by a parol agreement by which the vendee surrendered the land contract and agreed to become the tenant of his vendor. Cravener v. Bowser (1846) 4 Pa. 259, s. c. on subsequent appeal in (1867) 56 Pa. 132.

A vendee who has taken an assignment from his vendor of the deed to the vendor cannot, by oral agreement with his vendor, rescind the contract. Maxwell v. Wallace (1853) 45 N. C. (Busbee, Eq.) 251. It was accordingly held in this case that a purchaser from the vendee acquired a title superior to that of a purchaser from the vendor with notice.

V. Rule denying specific performance of contract that has been orally re

Illinois. See Bowman v. Cunningham (1875) 78 Ill. 48, supra, III. a. Iowa.-Henderson v. Beatty (1904) 124 Iowa, 163, 99 N. W. 716.

Kentucky.-Lucas v. Mitchell (1821) 3 A. K. Marsh. 244 (rule recognized). See Warden v. Bennett (1911) 145 Ky. 325, 140 S. W. 538, supra, II. c.

Missouri.-Tolson v. Tolson (1847) 10 Mo. 736 (obiter).

Mississippi.-See Stone v. Buckner (1849) 20 Miss. 73, supra, II. a.

Nebraska. See Sieker v. Sieker (1911) 89 Neb. 123, 130 N. W. 1033, supra, II. c.

New Jersey.-Huffman v. Hummer (1866) 18 N. J. Eq. 83, 2 Mor. Min. Rep. 242. See King v. Morford (1831) 1 N. J. Eq. 274, supra, II. b.

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It was accordingly held that a vendee who did not go into possession of the land under his contract, and who was paid back the money which he had paid under it for the purpose of rescinding the same, cannot enforce the contract thereafter. Atkinson v. Thomas (Ark.) supra. See Robertson V. Lain (1925) Ark. 269 S. W. 574, a. supra, II. In Henderson v. Beatty (Iowa) supra, where, upon the tender of the deed by the vendor, the vendee refused to make payment, and thereupon the vendor declared in substance that the contracts were at an end, and nothing more would be done under them, to which the vendee responded, "All right, we are ready to quit if you are," and thereafter made no effort to enforce the contract for nearly two years and until after the land had nearly doubled in value, the court says that, even if the vendee did not regard the contract terminated by the above conversation, he must have known that the vendor so understood

it, and, by the delay, he confirmed in the vendor the notion that the contract was at an end. Accordingly, the petition for specific performance was dismissed. In Tolson v. Toison (Mo.) supra, one who purchased land and took possession of it, but allowed the legal title to remain in his vendor, may by parol waive his right to the title, so that in an action by his heirs against the heirs of the vendor, specific execution of the contract can be resisted by showing the waiver.

The surrender of an agreement for the sale of land and the subsequent sale of the lot to another person by the vendor, with the knowledge and participation of the vendee, is held to be a rescission of the contract in Crane v. De Camp (1869) 21 N. J. Eq. 414, so as to prevent a specific enforcement of the contract. According to the court, even where the original agreement is under seal, it may be rescinded in equity by a parol agreement evidenced only by conduct.

That a written contract for the sale of land may be rescinded by an oral agreement which may be set up in defense of an action specifically to enforce the written contract is held also in Frith v. Alliance Invest. Co. (1913) 6 Alberta L. R. 197, 10 D. L. R. 765, affirmed in (1914) 49 Can. S. C. 384, Ann. Cas. 1914D, 458.

At least, a specific performance of the agreement as against a subsequent purchaser from the vendor may be defeated by an oral agreement of discharge of the written contract. Boyce v. McCulloch (1842) 3 Watts & S. (Pa.) 429, 39 Am. Dec. 35.

That an equitable interest in land may be waived by parol so as to put it out of the power of the holder to obtain the interposition of a chancellor in his behalf is stated to be true in Kline's Appeal (1861) 39 Pa. 463. And this principle is recognized in Garver v. McNulty (1861) 39 Pa. 473, where it is stated that there is "no doubt but that unexecuted articles for the sale of land may be rescinded by parol, so that in equity, no specific execution of land could be enforced or a recovery be had in ejectment."

A vendor who has obtained a judg

ment for the sum remaining unpaid on a contract for sale of land was held not entitled to a decree for the sale of the land in satisfaction of his judgment, in England v. Jackson (1842) 3 Humph. (Tenn.) 584, where the contract had been rescinded by a verbal agreement. According to the court, the bill was in the nature of a bill for specific performance. It sought the aid of the court to affirm the contract of sale to the defendant, to devest him of his equitable interest therein, and order a sale of the land for the satisfaction of the judgment for the unpaid purchase money; and it is held to be well settled that a parol rescission of a written contract may be set up in opposition to a bill for specific performance.

The assignee of a contract for the sale of land by the terms of which the purchaser had the option, if he saw fit, to leave the land, the vendor to pay for all the work done on the land and for work and services performed towards the price, was held not entitled to enforce the contract against a purchaser from the vendor, in Washington v. M'Gee (1828) 7 T. B. Mon. (Ky.) 131. It was urged that as the dissolution of the contract was not by writing, but only by parol, it was not obligatory under the Statute of Frauds. Apparently this contention is overruled. At least, the result of the decision is to deny the contention, although the decision itself is not clearly based upon this ground.

In Baldwin v. Salter (1840) 8 Paige (N. Y.) 473, it is stated to be doubtful, at least, whether any court of equity will allow a vendee who has voluntarily abandoned an agreement for the purchase of property when he found that he could not complete it on his part, to set up the agreement again for the purpose of claiming a specific performance thereof, after the whole object of the defendant in entering into the original agreement has been defeated.

The court in Holden v. Purefoy (1891) 108 N. C. 163, 12 S. E. 848, states it to have been long settled that a parol waiver of a written contract within the Statute of Frauds, amount

ing to a complete abandonment, and clearly proved, will bar a specific performance. Other North Carolina cases require acts and conduct in addition to the oral agreement. See supra, III. a.

In May v. Getty (1905) 140 N. C. 310, 53 S. E. 75, an action to compel specific performance of a contract to convey land, it is stated to be well settled that parties to a written contract may, by parol, rescind, or, by matter in pais, abandon the same.

Some limitations have been placed upon this doctrine. It is held in Walker v. Wheatly (1840) 2 Humph. (Tenn.) 119, that an executory contract to rescind, the condition of which on the part of the vendor has never been performed, is not sufficient to defeat specific performance. In this case, the vendor delivered up an unpaid note of the vendee, and agreed

to repay the amount that had been paid by executing to the vendee his note for the payment received, and, instead of executing his note, he delivered to a third person the note of a debtor of his, which was never paid. According to the court, whether or not the contract of rescission was executed depended upon who was to be responsible for the vendor's debtor's failure to pay his note. The court, concluding that the vendor himself was responsible, and that the vendee had not taken it in payment, held the contract of rescission not executed, and, therefore, not a defense.

A purchaser at an execution sale under judgment against the vendee, who has by parol abandoned his contract for the purchase of the land, cannot maintain ejectment against the holders of the legal title. Raffensberger v. Cullison (1857) 28 Pa. 426. W. A. E.

1. A contract for the sale of