#### R. L. LEWIS v. OLIVER E. GAY et al.

(Filed 20 October, 1909.)

1. Lands — Contract to Convey — Insufficient Deed — Tender of Sufficient Deed, When in Time.

In actions where the remedy by specific performance is indicated, if the vendor of lands can make a good and sufficient title at any time before final decree, it is sufficient; and when the vendee, having made a partial payment on the purchase price, finds that the vendor’s wife is not of age, and refuses to accept deed on that account, and brings suit to recover the partial payment he had made, a tender by defendant and his wife, the latter then being of age, of a good and sufficient deed, during the course of the proceedings will be held a sufficient compliance with the contract.

2. Same — Agreement to Rescind — Evidence—Questions for Jury.

In an action to recover a partial payment made on an execu-tory contract for the sale of lands, the deed being refused by the vendee on discovering that vendor’s wife, signing the deed, was not of age, and thereafter pending the proceedings, vendee refused to accept a good and sufficient deed from the vendor and his wife, the latter then being of age, it is competent to show that by parol or by matter in pads, the parties had agreed to rescind the contract, and under conflicting evidence the question thus raised should have been submitted to the ,iury.

*1693. Lands — Contract to Convey — Agreement to Rescind — Purchase Price — Agreement Implied.

When parties to a contract to convey lands mutually agree to rescind the same, in the absence o£ any stipulation to the contrary the law implies a promise to repay such amounts as may have been paid by the vendee on the purchase money.

Appeal from 0. H. Allen, J., March Term, 1909, of Edge-combe.

At tbe close of the plaintiff’s evidence there was a motion to nonsuit made by defendant, and like motion was made at the close of the entire evidence. The last motion having been allowed, and judgment of nonsuit entered, plaintiff excepted and appealed.

The facts are stated in the opinion of the Court.

Austin & Grantham, for plaintiff.

Bunn & Spruill and T. T. Thorne for defendant.

Hoke, J.

There was evidence tending to show that in December, 1906, plaintiff bought of defendant O. E. Gay a house and lot in the town of Eocky Mount, N. C., at the contract price of $5,500, and shortly thereafter, in January, 1907, paid defendant $1,000 on the purchase price. Thereupon defendant signed a written receipt for the money, giving the substance of the trade and reciting that a deed for the property from O. E. Gay and wife, Jessie Gay, had been left with Frank P. Spruill, to be delivered to plaintiff in case the money was paid on or before 9 February, 1907. Some time after the payment of the $1,000, plaintiff discovered that defendant’s wife, Jessie E. Gay, was under twenty-one years of age when she signed the deed. Plaintiff demanded that, on this account, some security or indemnity be given before the full payment of the purchase money, and this demand was refused.

The complaint further alleged, and there was evidence on the part of plaintiff tending to show, that some time after the time fixed for the payment of the money and delivery of the deed, and while the parties were still contending as to their respective rights under the contract, they had agreed to rescind the trade, and the deed was obtained from Spruill either by defendant or John Gay, who was acting for defendant throughout the transaction, and that plaintiff agreed to this rescission of the contract under an express contract that plaintiff was to be repaid the $1,000; and that, after this rescission, defendant O. E. Gay had mortgaged the property and same was now encumbered to the amount of $1,500. Defendant having refused to pay, the action was instituted, as stated, to recover the $1,000 paid on the, purchase price.

*170At tbe trial term Mrs. Jessie Gay, wife of O. E. Gay, on motion, was allowed to become party defendant, and tbe two defendants tendered and filed a deed to plaintiff for tbe bouse and lot, properly executed and bearing date 27 March, 1909. It was agreed tbat at tbis time said Jessie Gay, defendant, was more tban twenty-one years of age, and tbe two defendants also filed an amended joint answer, authorizing the. plaintiff, out of tbe purchase money remaining due, to pay off and discharge tbe liens placed on tbe property by O.. E. Gay. Upon tbis statement plaintiff contended tbat be could rightfully abandon tbe contract and recover tbe amount paid on tbe purchase price:

1. Because, at tbe time' specified, defendant was unable to make plaintiff a good deed, inter partes, by reason of tbe infancy of bis wife.

2. Because of tbe express agreement between them to rescind tbe trade.

We are not called on to determine bow far tbe infancy of tbe feme defendant might have affected plaintiff’s obligation under tbe contract, if same bad continued, or whether tbe case of Farthing v. Rochelle, 131 N. C., 563, cited by defendant, applies to tbe present case; for 'the reason tbat in actions where tbe remedy by specific performance is indicated, it is very generally held tbat if- a vendor can make a good title at any time before final decree, it will be considered sufficient. McNeil v. Fuller, 121 N. C., 209; Hobson v. Buchanan, 96 N. C., 444. And, tbe feme defendant being now of age, and she and her husband having tendered a good and sufficient deed; it would seem, on tbe facts as they are now presented, tbat tbe first position of plaintiff is not well taken. But, on tbe second ground, we are of opinion tbat tbe plaintiff was entitled to have tbe question submitted to a jury for decision, and tbat tbe order directing a nonsuit must be set aside.

As said by Walker, J., delivering tbe opinion in May v. Getty, 140 N. C., at p. 316: “It is now well settled tbat parties to a written contract may by parol rescind, or by matter in pais abandon tbe same.” Citing Faw v. Whittington, 72 N. C., 321; Taylor v. Taylor, 112 N. C., 27; Holden v. Purefoy, 108 N. C., 163; Riley v. Jordan, 75 N. C., 180; Gorrell v. Alspaugh, 120 N. C., 362.”

And it is well established tbat when parties to an executory contract of tbis character mutually agree to rescind tbe same, in tbe absence of any stipulation to tbe contrary, tbe law implies a promise to repay such amounts as may have been paid upon tbe purchase money. Tbis is so by authority and under tbe general principles upon which tbe action of indebitatus assumpsit is *171properly made to rest. Beaman v. Simmons, 76 N. C., 42. At this stage of the action we do not deem it desirable to set out or dwell upon the testimony tending to sustain the plaintiff in this aspect of his claim, but consider it best to say, in general terms, that we hare carefully examined the evidence as it appears in the record, and that there is testimony on the part of the plaintiff tending to show that the parties mutually agreed to rescind the trade; and if this view should be accepted by the jury, the claim of the plaintiff would prevail.

For the reasons indicated, we are of opinion that the order of nonsuit should be set aside and a trial had of the matters at issue between the parties.

Judgment reversed.