#### W. C. HINSDALE v. W. I. PHILLIPS COMPANY et al.

(Filed 15 October, 1930.)

1. Cancellation of Instruments B a — Superior Court has jurisdiction to decree cancellation of instruments in proper instances.

The Superior Court has jurisdiction over a suit to cancel a deed or mortgage and to administer equities therein involved.

*5642. Cancellation of Instruments A a — Where promissory representation is made in good faith remedy is for damages at law and not for cancellation.

The failure of the seller of land in a development to perform his promissory representations as to improvements to be made therein is not sufficient ground for equity to afford the remedy of cancellation and rescission where the representations are made in good faith with the present intent to perform, the remedy of the purchaser being, in proper instances, an action at law for damages for condition broken.

3. Cancellation of Instruments A b — Promissory representation must he made without intent to perform to he ground for cancellation.

In order for equity to afford the relief of cancellation and rescission for the failure of a seller of land in a development to perform his promissory representations as to improvements to be made therein, the representations must be made without the present intent of the promisor to perform, and must deceive and be relied on by the promisee and materially induce him to enter into the contract to his damage.

4. Same — Where all the evidence tends to show that promissory representations were made in good faith nonsuit should he entered in suit for cancellation.

Where, in a suit to rescind a deed and cancel notes given for the purchase price for the failure of the seller of land in a development to perform his promissory representations as to improvements to be made therein, there is evidence that the seller put a large number of men to work upon the improvements and spent large sums of money thereon, and all the evidence tends to show that the representations were honestly made with the present intent to perform, the defendant’s motion as of nonsuit should be allowed.

5. Cancellation of Instruments B c — Defendant in this case held barred by his laches from bringing suit for cancellation and rescission.

Where the owner of a development sells certain lots therein and represents that certain improvements would be made in the development within a year, and a purchaser of some of the lots takes possession of the lots conveyed, occupying as a home a house on one of the lots, for a period of over two years, and enters into a trust agreement for the completion of the improvements by a trustee, and large amounts of money are expended by the original seller and the trustee in making improvements therein, and the purchaser brings suit for cancellation and rescission three years after the execution of the deed: Held, his equitable right, if any, to rescission of the deed and cancellation of the notes given for the purchase price, for that the representations in regard to the proposed improvements were false and fraudulent, is barred by his acceptance of benefits accruing to him from the contracts, and his delay in demanding a rescission of the deed, and the defendant’s motion as of nonsuit should have been allowed.

Appeal by defendants from Finley, J., at December Term, 1929, of BUNCOMBE.

Reversed.

Tils is a civil action (1) for tie rescission of certain contracts by wlicl plaintiff pnrclased from tie defendant, ~W. I. Plillips Company, *565certain lots of land, described in deeds dated 11 July, 24 July, 14 August, and 28 September, 1925; (2) for tbe cancellation of certain notes executed by tbe plaintiff, -and payable to tbe order of tbe said "W. I. Phillips Company, tbe consideration for said notes being tbe balance due on tbe purchase price for said lots of land; (3) for tbe recovery of tbe sum of $17,467.47, paid in cash by tbe plaintiff to tbe said W. I. Phillips Company, on tbe purchase price for said lots of land, contemporaneously with tbe execution of said deeds; and (4) for other relief.

Prior to and on tbe dates of said deeds tbe defendant, W. I. Phillips Company, a corporation, owned a tract or parcel of land located in Limestone Township, Buncombe County, North Carolina, which tbe said company bad caused to be surveyed and divided and subdivided into lots, to be sold for residential and other purposes. On tbe dates of tbe several deeds set out in tbe complaint, to wit, 11 July, 24 July, 14 August, and 28 September, 1925, tbe said ~W. I. Phillips Company contracted and agreed to sell to tbe plaintiff, and tbe plaintiff contracted and agreed to buy from tbe said W. I. Phillips Company, tbe lots of land described therein. As inducements to plaintiff to buy and pay for said lots, tbe said "W. I. Phillips Company represented to and promised tbe plaintiff that it would cause certain improvements, as set out in tbe complaint, to be made, within one year from tbe dates of said deeds, on said tract or parcel of land, which included the said lots purchased by tbe plaintiff. Tbe said W. I. Phillips Company represented to tbe plaintiff, and to other prospective purchasers of lots, that it bad in bank tbe money with which to pay for said improvements. It was further represented to plaintiff by tbe said W. I. Phillips Company that said improvements, which would consist of paved streets and boulevards, water and sewer systems, and a casino, to be erected at a cost of not less than $40,000, would greatly enhance tbe value of the lots purchased by tbe plaintiff, and of other lots included in said subdivision, which was known as Royal Pines. Plaintiff relied on tbe representations and promises of the W. I. Phillips Company, in bis purchase of said lots.

After tbe execution of tbe deeds set out in tbe complaint, and after tbe plaintiff bad paid tbe purchase price for tbe lots conveyed thereby, in cash and by tbe execution of tbe notes described in tbe complaint, plaintiff entered into possession of said lots of land, claiming title thereto under said deeds. A large and commodious house was located on one of said lots; plaintiff, with bis family, moved into said bouse, and occupied it as a home until 1 September, 1927.

At tbe dates of said deeds tbe defendant, "W. I. Phillips Company, was engaged in making improvements on its property known as Royal Pines, of tbe kind and character which it represented to plaintiff it *566would make and complete within one year. It continued the work required for said improvements until some time during the late spring or early summer of 1926. During this time the said company kept a force of 50 to 100 men at work on said property, making said improvements. During the summer of 1926 this force was gradually diminished in number, until finally, during the latter part of the summer, all work on said improvements ceased. The improvements which the defendant, W. I. Phillips Company had represented and promised the plaintiff and other purchasers of lots would be made, have not been completed, and the work done, in many essential respects, is defective. Plaintiff, however, retained possession of the lots purchased by him from the defendant, W. I. Phillips Company, and continued to occupy the house on one of said lots as his home. There was no evidence tending to show that plaintiff made any complaint to the said company, at any time from the dates of his deeds, until the work on the improvements ceased, with respect either to the quality of the work done, or to the delay in completing said improvements.

On or about 1 September, 1926, the defendant, L. B. Jackson, became by purchase the owner of all the capital stock of the W. I. Phillips Company. An announcement of this fact, and that L. B. Jackson had assumed entire control and management of the Royal Pines was made in local newspapers. At this time all work on the improvements in Royal Pines had ceased. These improvements had not been completed. Thereupon, plaintiff and other lot owners in Royal Pines met, and after a full discussion of the situation, appointed a property owners committee, which was authorized to employ counsel to advise with them and to protect the interests of all the lot owners in Royal Pines. Plaintiff was a member of this committee. The committee employed as its counsel an attorney at law, who was a member of the bar of Buncombe County. The defendant, L. B. Jackson, was present at one of the meetings of the lot owners in Royal Pines. There was evidence tending to show that the defendant, L. B. Jackson, at first denied that the W. I. Phillips Company was under any legal obligation to make the improvements which the said company had represented to the purchasers of lots in Royal Pines would be made. Subsequently, however, he announced that he had been advised by his counsel that the property owners in Royal Pines had rights with respect to said improvements which were enforceable. He thereupon stated that he would make said improvements, but for that purpose would expend only such sums of money as were absolutely necessary to comply with the legal obligation of the W. I. Phillips Company.

After the defendant, L. B. Jackson, had purchased all the capital stock of the W. I. Phillips Company and had assumed entire control *567and management of said company, be caused said company to enforce, in blank, all tbe notes then held by said company for balances due by purchasers of lots in Eoyal Pines, on the purchase price for said lots. At this time, the aggregate amount of said notes was $961,528.44. The said L. B. Jackson sold and delivered the said notes to the Continental Mortgage Company for the sum of $200,000, which was paid to him in cash by said mortgage company, upon the delivery of the said notes to it. It is conceded that the sale of the said notes by defendant, L. B. Jackson, to the Continental Mortgage Company was illegal, but that said mortgage company at the time it received said notes, and paid the purchase price for same, did not know that the said L. B. Jackson was not authorized to sell and deliver said notes.

In the meantime, an action had been begun in the Superior Court of Buncombe County, entitled Noland et al. v. W. I. Phillips Company et al., for the appointment of a receiver of the said company and for other relief. In this situation, the property owners committee, appointed by the purchasers of lots in Eoyal Pines, with its counsel, met in the latter’s office in the city of Asheville, with the defendant, L. B. Jackson, and his counsel. As a result of this meeting, a trust agreement was entered into by and between the W. I. Phillips Company, and L. B. Jackson, as parties of the first part, and the Wachovia Bank and Trust Company, trustee, as party of the second part. This trust agreement, set out in the record, was approved by the property owners committee, and their attorney, as evidenced by the signatures of the members of said committee and said attorney.

Contemporaneously with the execution of said trust agreement, the Continental Mortgage Company assigned, transferred and delivered to the defendant, Wachovia Bank and Trust Company, with the approval of the property owners committee, as evidenced by the signatures of the members of said committee, and of their attorney, all the notes then in the hands of the said Continental Mortgage Company, which the said company had received from the defendant, L. B. Jackson, with full power and authority to collect said notes, and apply the proceeds thereof in accordance with the provisions of said trust agreement. Among the notes thus assigned, transferred and delivered to the Wachovia Bank and Trust Company, trustee, were the notes executed by the plaintiff and payable to the order of the W. I. Phillips Company, for the balance due on the purchase price of the lots conveyed to plaintiff by said company.

In the trust agreement, and also in the assignment of the notes, as aforesaid — both approved by the plaintiff as a member of the property owners committee, as evidenced by his signature on each of said instruments — it is provided that the Wachovia Bank and Trust Company, as *568.trustee, out of the proceeds of said notes, shall pay (1) the sum of $15,000 to the attorneys for the plaintiffs in the action entitled Noland et al. v. W. I. Phillips Company et al.j (2) the sum of $177,108.22 with accrued interest to- the Continental Mortgage Company, the said sum being the balance then due said mortgage company on account of the sum of $200,000 paid by said company to the defendant, L. B. Jackson, upon the delivery of said notes by the said Jackson to the said mortgage company; (3) the cost and expense of making certain improvements in Royal Pines in accordance with a schedule prepared by certain engineers, dated 31 August, 1926; and (4) the balance, if any, to the defendant, L. B. Jackson. It is provided that the trustee shall have as compensation for its services certain commissions as agreed upon, to be paid out of the proceeds of said notes. It is further provided that the trustee shall have power to authorize the defendant, L. B. Jackson, to hypothe-cate said notes in its possession to secure the payment of any loan or loans procured by him for the purpose of paying the cost and expenses of the improvements to be made in Royal Pines, the proceeds of any loan or loans to be paid to the trustee to be applied by said trustee only to the payment of such cost and expenses.

After the execution of said trust agreement and assignment, both dated 1 September, 1926, work was resumed on the improvements in Royal Pines under the direction of the engineers named in the trust agreement. There was evidence tending to show that the work on said improvements was defective, and that the improvements agreed to be made have not been completed, in accordance with the schedule attached to the said trust agreement. Plaintiff continued in possession of the lots purchased by him from the W. I. Phillips Company, in 1925, from the date of the trust agreement and assignment, to wit: 1 September, 1926, to 1 September, 1927. There was no evidence tending to show that during this time plaintiff complained to the trustee, to the defendant, L. B. Jackson, or to the defendant, W. I. Phillips Company, with respect to the quality of the work being done on said improvements. Plaintiff has made no payment on his notes held by the trustee under the trust agreement and assignment. This action was begun on 9 May, 1928.

Since the delivery of the notes executed by purchasers of lots in Royal Pines to it, under the provisions of the trust agreement, and of the assignment, the Wachovia Bank and Trust Company, as trustee, has collected on said notes the sum of $383,985.95; in addition to said sum, the said trustee has received from L. B. Jackson the sum of $85,632.16, the proceeds of a loan procured by him from the Wachovia Bank and Trust Company, and secured as provided in the trust agreement, making a total sum of $469,618.11, in the hands of the trustee, available for *569distribution in accordance with tbe provisions of tbe trust agreement, and of tbe assignment. Tbis sum bas been distributed by tbe said trustee as follows: (1) $15,000 to tbe attorneys for tbe plaintiffs in tbe Noland suit; (2) $180,262.05 to tbe Continental Mortgage Company in full payment of tbe amount due to said mortgage company; (3) $240,-•411.64, paid by said trustee for work done on tbe improvements made in Eoyal Pines, in accordance with the provisions of tbe trust agreement; (4) $18,050.15, paid on tbe loan procured by L. B. Jackson from tbe "Wachovia Bank and Trust Company, reducing the amount due on said loan to $67,682.01; and (5) $2,340.31, paid to tbe trustee as commissions. There is now in tbe bands of tbe Wachovia Bank and Trust Company, as tbe trustee named in tbe trust agreement, tbe sum of $2,952.62.

Tbe plaintiff, W. C. Hinsdale, as a witness in bis own behalf, over tbe objection of tbe defendants, testified that before be signed the trust agreement and tbe assignment, evidencing bis approval of both said instruments, as a member of tbe property owners committee, be was assured by tbe defendant, L. B. Jackson, and others present, that be would not thereby waive any right of action that be then bad against tbe W. I. Phillips Company, on account of bis purchase of tbe lots conveyed to him by tbe deeds dated in July, August and September, 1925. The defendants, W. I. Phillips Company and L. B. Jackson, excepted to tbe admission of tbis testimony as evidence.

At tbe close of all tbe evidence tbe defendants, W. I. Phillips Company and L. B. Jackson, moved for judgment dismissing the action as of nonsuit. Tbis motion, first made at tbe close of tbe evidence for plaintiff, was denied, and said defendants excepted. They further excepted to the denial of their motion at tbe close of all tbe evidence.

Issues were submitted to tbe jury and answered as follows:

“1. Was the plaintiff induced to purchase tbe property from tbe defendant, W. I. Phillips Company, as a result of tbe false and fraudulent representations and inducements made by said defendant, as alleged in tbe complaint? Answer: Yes.

2. If so, did tbe defendant, L. B. Jackson, after be acquired tbe stock of the W. I. Phillips Company, participate in said fraud and/or aid and abet therein, as alleged in tbe complaint? Answer: Yes.

3. Hid tbe plaintiff by bis conduct waive bis right as against W. I, Phillips Company to have tbe notes mentioned and described in tbe complaint, canceled and tbe purchase money paid by him returned? Answer: No.

4. Did tbe plaintiff by bis conduct waive bis right as against L. B. Jackson to have tbe notes mentioned and described in tbe complaint, canceled and tbe purchase money paid by him returned ? Answer: No.

*5705. Is tbe plaintiff estopped by bis conduct from claiming a cancellation and rescission of said notes as against tbe defendant, Wachovia Bank and Trust Company? AnsAver: Yes.

6. Is tbe plaintiff entitled to recover of tbe defendant, W. I. Phillips Company, tbe relief demanded in tbe complaint? Answer: Yes.

7. Is tbe plaintiff entitled to recover of tbe defendant, L. B. Jackson, tbe relief demanded in tbe complaint? Answer: Yes.”

On tbe foregoing verdict it was ordered, adjudged and decreed:

“(1) That tbe plaintiff have and recover of tbe defendants, W. I. Phillips Company, and L. B. Jackson, the sum of $17,467.47, with interest thereon from 28 September, 1925, until paid.

(2) That upon tbe satisfaction of said judgment for $17,467.47, with interest and costs, tbe plaintiff herein execute and deliver to tbe party paying tbe same, or to tbe clerk of tbe court, for tbe use of said party, a good and sufficient deed conveying tbe property described in tbe complaint, and which was purchased by the plaintiff from tbe W. I. Phillips Company, free and clear from any and all encumbrances, excepting such as may have been placed against same by any State, county, town, township, or other political division, subdivision, or municipal corporation, and said conveyance being subject to tbe right or rights of tbe Wachovia Bank and Trust Company under this judgment.

(3) That tbe defendants, W. I. Phillips Company and/or L. B. Jackson, are entitled to tbe said land described in the complaint subject to tbe rights of tbe Wachovia Bank and Trust Company under this judgment, upon paying tbe $17,467.47, with interest and costs, above referred to, and not until then; and that tbe plaintiff herein has a lieu upon said land for tbe payment of said sum, and that if execution issue against tbe property of the defendants, W. I. Phillips Company and L. B. Jackson, and be returned unsatisfied, in that event tbe lien of the plaintiff may be foreclosed by tbe sheriff of Buncombe County selling tbe said property at public auction at tbe courthouse steps, after notice of said sale has been advertised in some newspaper published in Buncombe County, North Carolina, once a week for four weeks, and after notice thereof has been posted at tbe courthouse door and three other public places in Buncombe County, N. C., for thirty days; and that tbe sheriff apply tbe proceeds of said sale upon tbe judgment above referred to.

(4) That tbe defendant, Wachovia Bank and Trust Company, bold tbe notes executed by this plaintiff, and which were given by this plaintiff as a part of tbe purchase money for tbe property heretofore mentioned until such time as tbe Wachovia Bank and Trust Company has been repaid tbe sum of $67,582.01, with accrued interest, and that tbe *571lien of tbe plaintiff on tbe property heretofore mentioned, created by tbis judgment, be subject to such right or rights as tbe Wachovia Bank and Trust Company may have under this judgment, and that any sale under execution as hereinabove provided, and any conveyance under this judgment be made subject to such r;ght or rights as the Wachovia Bank and Trust Company may have under this judgment.

(5) That the Wachovia Bank and Trust Company exhaust its remedies against the W. I. Phillips Company, L. B. Jackson, and all other parties, for the repayment of the sum advanced by it, and also exhaust its remedies on the purchase-money notes of other parties, which are now held by the said Wachovia Bank and Trust Company, by foreclosing under the deeds of trust securing said notes, or by bringing suit against the makers of said notes, and also exhaust its remedies on all other collateral which the said Wachovia Bank and Trust Company now holds, or may hereafter acquire as security for the same advanced by it, before making any attempt to collect the notes of this plaintiff by foreclosure suit or otherwise, and that upon the said Wachovia Bank and Trust Company receiving the said sum of $67,582.01, with interest from any source whatever, in payment of the sums advanced by it, the said Wachovia Bank and Trust Company shall deliver to this plaintiff or to the clerk of the court for the use of this plaintiff, the said purchase-money notes executed by this plaintiff referred to above, for the purpose of cancellation; and that in the event the Wachovia Bank and Trust Company shall collect from other sources a portion of the sum advanced by it, the said Wachovia Bank and Trust Company shall be entitled to collect on the said notes executed by this plaintiff, only so much thereof as shall be necessary to pay the sums advanced by the Wachovia Bank and Trust Company, with interest thereon.

(6) That the defendants, W. I. Phillips Company and L. B. Jackson, herein, pay the costs of this action to be taxed by the clerk, and that no costs be taxed against the Wachovia Bank and Trust Company.”

From the foregoing judgment, the defendants, W. I. Phillips Company, L. B. Jackson, and Wachovia Bank and Trust Company appealed to the Supreme Court.

J. Y. Jordan, Jr., and J. M. Homer, Jr., for plaintiff.

Campbell & Sample for W. I. Phillips Company and L. B. Jaclcson.

Alfred S. Barnard for Wachovia Banlc and Trust Company.

CoNNOR, J.

This is an action begun and tried in the Superior Court of Buncombe County for the rescission of certain contracts made and entered into by and between the plaintiff, and the defendant, W. I. Phillips Company, a corporation, during the summer of 1925; for the cancellation and surrender of certain notes executed by the plaintiff, *572and for the recovery of sums of money paid by tbe plaintiff to said defendant, pursuant to said contracts. The relief sought by the plaintiff of the defendants other than the said W. I. Phillips Company is predicated altogether upon his right to have said contracts rescinded by judgment and decree in this action. If plaintiff is not entitled to this relief as against the defendant, W. I. Phillips Company, it is clear that he has no cause of action against the other defendants upon which he is entitled to the relief sought against them in this action. The first question, therefore, to be decided on this appeal is whether upon the allegations of the complaint, and upon the evidence offered at the trial, plaintiff is entitled to the equitable remedy of rescission.

The jurisdiction of a Court of Equity, or of a court exercising the powers of a Court of Equity, such as the Superior Court of this State, to direct and enforce the rescission of contracts, and the surrender and cancellation of written instruments for due cause, and to grant such other relief as the party may be entitled to, is settled beyond question. 9 C. J., 1159. The grounds on which equity interferes for rescission are distinctly marked, and every case proper for this branch of its jurisdiction is reducible to a particular head. They are principally fraud, mistake, turpitude of consideration, and circumstances entitling to relief on the principle of quia timet j and generally they do not include inadequacy of price, improvidence, surprise, or mere hardship. Promises, honestly made, which the promisor cannot fulfill, do not furnish sufficient grounds for vacating a contract based thereon; but mutual mistake, or false representations as to material facts which constitute an inducement to the contract and upon which the party had a right to rely, will give equity jurisdiction. 4 R. C. L., 487.

As a general rule, fraud as a ground for the rescission of contracts, cannot be predicated upon promissory representations, because a promise to perform an act in the future is not in the legal sense a representation. Fraud, however, may be predicated upon the nonperformance of a promise, when it is shown that the promise was merely a device to accomplish the fraud. A promise not honestly made, because the promisor at the time had no intent to perform it, where the promisee rightfully relied upon the promise, and was induced thereby to enter into the contract, is not only a false, but also a fraudulent representation, for which the promisee, upon its nonperformance, is ordinarily entitled to a rescission of the contract. These principles have been recognized and applied by this Court in Shoffner v. Thompson, 197 N. C., 667, 150 S. E., 195; McNair v. Finance Company, 191 N. C., 710, 135 S. E., 90; Bank v. Yelverton, 185 N. C., 314, 117 S. E., 299; Pritchard v. Dailey, 168 N. C., 330, 84 S. E., 392; Hill v. Gettys, 135 N. C., 373, 47 S. E., 449, and in many other cases cited in the opinions in these cases.

*573Where there was evidence showing that promissory representations were made by the defendant as inducements to plaintiff to enter into the contract, and that plaintiff rightfully relied upon such representations, as alleged in his complaint, and that the promises were not performed by the defendant, after the contract was entered into by and between the parties, it has been held by this Court that the fraudulent intent, at the time the promises were made, not to perform them, could be inferred by the jury from the fact of nonperformance. Clark v. Laurel Park Estates, 196 N. C., 624, 146 S. E., 584. Authorities are cited in the opinion by Glpifrkscm, J., in support of the decision in that case. Quoting from Braddy v. Elliott, 146 N. C., 578, 60 S. E., 507, it is said that the subsequent acts and conduct of a party to a contract may be submitted to the jury as some evidence of his original intent 'and purpose, when they tend to indicate it. Where, however, as in the instant case, all the evidence as to the subsequent acts and conduct of the promisor, shows that after the contracts sought to be rescinded on the ground of fraudulent representations, were entered into, there was a substantial and continued effort on the part of the promisor, involving the expenditure of a large sum of money, to perform the promises, this principle does not apply, for the reason that the evidence does not show or tend to show a fraudulent intent, at the time the promises were made, not to perform them. If, as the evidence in this case tends to show, the improvements which the W. I. Phillips Company promised and represented to the plaintiff would be made in Royal Pines, were not completed, or were defective, as alleged in the complaint, the plaintiff is entitled to recover damages for breach of contract; he is not entitled, however, to the equitable remedy of rescission on the ground of fraud, for the reason that there was no evidence which shows that at the time the contracts were entered into, the W. I. Phillips Company did not intend to perform the promissory representations alleged in the complaint. Indeed, all the evidence tends to show that these representations were honestly made, as an inducement not only to plaintiff to purchase lots, but also to others to do likewise. For nearly a year after plaintiff purchased lots in Royal Pines, the W. I. Phillips Company kept a force of 50 to 100 men at work, making the improvements as represented. Since the execution of the trust agreement, which was approved by the property owners committee, the trustee has expended over $240,000, collected on the notes of the lot owners, and advanced by the defendant, L. B. Jackson, on improvements in Royal Pines. With respect to the representation made contemporaneously with the execution of the deeds, that W. I. Phillips Company then had in bank a sufficient sum of money to pay the costs of the improvements as promised to the plaintiff and other purchasers of lots, it is sufficient to say that there was no evidence tending *574to show that tbis representation was false in fact. Tbe evidence shows that said company did expend large sums of money in making improvements in Royal Pines in accordance with its representations and promises.

Conceding, however, that there was evidence tending to show that plaintiff was induced to enter into contracts with the defendant, W. I. Phillips Company, for the purchase of lots in Royal Pines by false and fraudulent representations as alleged in the complaint, we are of opinion that all the evidence showed that plaintiff by his conduct has waived, both as to said company and as to the other defendants, his right to a rescission of said contracts. His equity, if any, was barred by his acceptance of benefits accruing to him from said contracts, and by his delay in demanding the equitable remedy of rescission. Plaintiff entered into possession of the lots conveyed to him by the W. I. Phillips Company during the summer of 1925, and remained in such possession, occupying as a home for himself and family, a house on one of the lots, until 1 September, 1927. If the promissory representations with respect to improvements in Royal Pines were fraudulent, as alleged by plaintiff, for that they were not honestly made by the W. I. Phillips Company, plaintiff could have discovered the fraud, at least, prior to 1 September, 1926, when as a member of the property owners committee he elected to retain said lots and rely upon the provisions of the trust agreement, for the completion of said improvements in accordance with the schedule prepared by the engineers and attached to the trust agreement.

In Van Gilder v. Bullen, 159 N. C., 291, 74 S. E., 1059, it is said: “It is also well established that the right to rescind must be exercised promptly, and if there is unreasonable delay, the right is lost, and the party defrauded is generally relegated to his action for damages. Alexander v. Utley, 42 N. C., 242; Knight v. Houghtalling, 85 N. C., 17.” In that case it was held that the party who alleged that he had been induced to enter into the contract by fraudulent representations made by the other party, had no right of rescission, as there had been a delay of about two years after the discovery of the alleged fraud, before the action in which he prayed for rescission was commenced. During this time the said party had retained the deed procured by the contract, and did no act indicating a purpose to rescind. The decision in that case is determinative, we think, of the instant case. The plaintiff in this case has lost his right of rescission, if any he ever had, and is relegated to an action for damages resulting from the breach of contract by the W. I. Phillips Company.

We have not discussed or decided the«questions presented by this appeal with respect to the admission of evidence at the trial, nor have we considered plaintiff’s motion that the appeal of the defendant, *575Wachovia Bank and Trust Company, be dismissed for tbe reasons assigned. In the view which we take of this case, these questions, although discussed in the briefs and in the oral argument, have become immaterial. There was error in the refusal of defendant’s motion, at the close of all the evidence, that the action be dismissed, as of nonsuit. Upon all the evidence plaintiff has failed to show that he is entitled to the equitable remedy of rescission. Indeed, it would be unjust and inequitable for the plaintiff to be relieved of his obligation by reason of the execution of his notes, payable to W. I. Phillips Company, and to recover the money paid on the purchase price of the lots conveyed to him. It would seem that the other property owners who relied upon the execution of the trust agreement in which provision was made for the improvements in Royal Pines, in which they as well as the plaintiff are interested, have rights of which they would be unjustly deprived if plaintiff should be granted the relief for which he prays by this action. It may be that these property owners, as well as plaintiff, are entitled to recover damages of the W. I. Phillips Company and L. B. Jackson, for a breach of contract, with respect to the improvements in Royal Pines.

In accordance with this opinion, the judgment must be

Reversed.