Cheek v. McWhorter

Stephens, J. 1. Surrender to the vendor by the vendee of actual possession of the land purchased under a bond for title, where the surrender is made in pursuance of a parol contract to rescind the sale, is such a part performance as will take without, the statute of frauds such parol contract which provides for a rescission of the sale and a surrender to the vendee by the vendor of the former’s purchase-money notes and a cancellation of the indebtedness evidenced thereby. 2. In a suit by the vendor against the vendee on such purchase-money notes, a plea by the defendant, alleging, by way of satisfaction in full of the notes sued on, a parol agreement by which the plaintiff is to deliver to the defendant the purchase-money notes sued on and the defendant is to deliver to the' plaintiff the bond for title, and alleging a surrender by the defendant to the plaintiff of the land in question, constituted a good defense to the suit and was improperly stricken on demurrer. Judgment reversed. Jenkins, P. J., and Bell, J., concur.