Plaintiffs assign as error the dismissal of the action upon defendants’ motion for nonsuit. We, therefore, consider the evidence in the light most favorable to. them.
Mills v. Lynch,
Plaintiffs, as vendees in an executory contract for the purchase' and sale of a residence from defendants, were' in possession of the property when the contrаct was signed on 13 November 1961.' The-total purchase price to be paid was $11,400.00. Defendants acknowledged the receipt of $400.00, and plaintiffs agreed to pay the balance in installments of $112.00 “each month hereafter.” The first payment, therefore, was due December 13, .1961. At the time plaintiffs moved out, shortly after 1 June 1963, a total of eighteen payments, or $2,016.00 should have been made. This sum (if paid), plus the $400.00 down payment, would have made a total of $2,416.00 paid on. the purchase price.
Both plaintiffs testified that they did not know the exact,amount which they had paid on the contract, but after refreshing her recollection from the complaint, however, Mrs. Brannock testified that plaintiffs had paid a total of $2,600.71. This sum would be $184.71 in excess of the amount due under the contract at the time defendants demanded possession of the property on or about 1 June 1963 and. at the time plaintiffs complied with defendants’ demands by voluntarily vacating the premises. Yet, both Mr. and Mrs. Brannock testified that they were two or threе months in arrears with that portion of the $112.00 monthly payment which they were to make direct to Mr. Fletcher: They said that he had agreed that they could “make it up at the end.” Notwithstanding, Mrs. Brannock also made the flat statement that plaintiffs had paid $2,600.71 on ’ the house when Mr. Fletcher demanded possession, and that they “were not behind” with their paymеnts at that time.
' This state of the evidence, plus the minimal written contract, which patently does not embrace all the terms of the previous oral agreement between the parties and which does not stipulate the consequences of a default by either, necessitates a marshaling of legal principles which the briefs hаve not attempted. Since plaintiffs brought this action to recover the páyments they had made, their theory necessarily is that defendants had rescinded the contract. Although the evidence discloses that their lást payment was made more than three years before they brought'this action, no question of the statute of limitation arises for the reason that the provisions
*70
of G.S. 1-52 weré not pleaded. G.S. 1-15;
Iredell County v. Crawford,
In a contract for the sale of land, the vendee may be given the right to possession - prior to the conveyance of' title either by the terms of the contract or by necessary implication. 55 Am. Jur., Vendor and Purchaser § 385 (1946). In the absence of any express or implied agreement to the contrary, however, the vendee has no right to the possession until he has fully paid the purchase price.
Allen v. Taylor,
“It is well settled, that the purchaser of land, when lеt into possession under a contract of purchase, is simply an occupant of it at the will of the vendor, and he so continues until the purchase money shall be paid. The vendor may at any time put an end to such occupancy by demanding possession, after reasonable notice to quit; and if it be not surrendered, then he may at once bring and maintain an action to recover the possession.” Allen v. Taylor, supra at 39,1 S.E. at 463 .
Accord, Jones v. Boyd,
It has been held repeatedly that “the relation between vendor and vendee in an executory agreement for the sale and purchase of land is substantially that subsisting between mortgagee and mortgagor, and-governed by‘the: same general rules.”
Jones v. Boyd, supra
*71
at 261;
accord, Crawford v. Allen
and
Realty Co. v. Crawford,
At сommon law, a mortgagee, in his character as the legal owner, was entitled to the immediate possession of the mortgaged premises, even before breach of condition unless this right had been waived or it had been otherwise stipulated in the mortgage. Under the.modern equitable doctrines, however, the mortgagor is entitled to remain in the possession of the property at least until breach of condition. Formerly, the rule was frequently stated as follows: “It is familiar learning that,
at least,
after default of the mortgagor in paying the debt secured by the mortgage, the mortgagee is entitled to the possession and is accountable to the mortgagor for rents and profits.” (Italics ours.)
Weathersbee v. Goodwin,
Like a mortgagor, a vendee who, by agreement with his vendor, is in possession of the property under an executory contract of purchase and sale cannot be deprived thereof as long as he is not in default in the performance of his contract. 92 C.J.S., Vendor and Purсhaser §§ 461, 464 (1955); 55 Am. Jur., Vendor and Purchaser §§ 438, 439, 444 (1946); Annot., When a vendor may recover possession from his vendee,
Unless supported by some new and independent consideration, an agreement by defendants that they might miss several payments and “make it up at the end,” would not abrogate the acceleration provision of the contract if defendants later .decided to enforce it.
Products Corp. v. Sanders,
“It is settled law that where a party agrees to purchase real estate and pays a part of the consideration therefor and then refuses or becomes unable to comply with the terms of 'his сontract, he is not'entitled to recover the amount theretofore paid pursuant to its terms. Rochlin v. Construction Co.,234 N.C. 443 ,67 S.E. 2d 464 ; Improvement Co. v. Guthrie,116 N.C. 381 ,21 S.E. 952 ;31 A.L.R. 2d 118 , Anno. — Vendee’s Recovery of Purchase Money; 55 Am. Jur., Vendor and Purchaser, section *73 535, page 927; 92 C.J.S. Vendor and Purchaser, section 554 (a), page 566.” Scott v. Foppe,247 N.C. 67 , 70,100 S.E. 2d 238 , 240.
Accord,
Annot.,
If, as plaintiffs contend, they were not in arrears with their payments, they were entitled to keep possession of the premises, and to refuse to move when Mr. Fletcher orderd them to Vacate “tomorrow.” Instead, they importuned Mrs. Fletcher “to give them until Saturday to mqve.” Having surrendered possession, they were still entitled — even if they wеre in arrears — to tender to defendants the unpaid balance of the purchase price within a reasonable time and to have specific performance of their contract-to convey. In the absence of special circumstances or a stipulation to the contrary, time is not of the essence in a contract of sale and purchase of land.
Douglass v. Brooks,
Upon the breach of a contract of purchase and sale, several courses are open to the injured party. Upon a breach by the vendor, the vendеe, inter alia, may (1) stand upon the contract and sue at law for damages for its breach, or he may go into equity seeking its specific performance; or (2), treating the vendor’s breach as an abandonment, may himself abandon the contract — thereby rescinding it — and recover what he has paid. Other available remedies are enumerated in 92 C.J.S., Vendor. & Purchaser § 543 (1955). Upon a breach by the vendee, the Vendor also has a choice of remedies. (In North Carolina, of course, the vendor has no lien absent a mortgage or' de'éd of trust.)
“(He) may bring an action for damages for the breach, or may sue in equity for specific performance, or bring ah action for the purchase price remaining unpaid, or proceed to enforce his vendor’s lien for unpaid purchase money, or, if he has parted with possession of the land, he may sue to recover its possession, or retake possession if the premises'are Vacant;-'-he, may retake possession and recovеr damages for the breach, or he may bring a suit for foreclosure of the vendeé’s interest or to quiet title, or he may rescind the contract in toto with the usual rights' and duties attendant on such action, or he may accept the no'ncom-pliance as a forfeiture of the contract, or he may bring an 'action to rescind the contrаct or declare it'at" an end.' Further, he may "remain inactive and retain for his own' use the moneys paid by *74 the purchaser, and he may retain or recover a deposit made by the purchaser on the purchase price.” 92 C.J.S., Vendor & Purchaser § 375 (1955).
See
Credle v. Ayers,
If the purchaser makes default in the stipulated payments, the vendor may refuse to perform further on his part, or he may take proceedings to foreclose the vendee’s rights under the contract, “without incurring liability at law to refund to the purchaser any part of the purchase money theretofore paid where the vendor does no act indicating rescission of the contract.” (Italics ours.) 55 Am. Jur., Vendor and Purchaser §§ 535, 536 (1946). The mere fact that the vendor resumes possession of the property does not entitle the purchaser to recover payments made on the contract where it is not rescinded. 92 C.J.S., Vendor & Purchaser § 554 (1965).
“Rescission is something more than a mere declaration of forfeiture by which a seller seeks to eliminate the rights of a delinquent purchaser and retain advance payments. . . . (A) rescission implies the entire abrogation of the contract and a restoration of the benefits from the other party.” Pedley v. Freeman,132 Iowa 356 ,109 N.W. 890 ,119 Am. St. Rep. 557 . Accord, Annot.,94 A.L.R. 1239 , 1240 (1935).
The distinction between rescission, forfeiture, and the termination of a vendee’s contractual rights because of his failing to perform his obligations is an important one. Annot.,
- “Rescission is not merely a termination of contractual obligations. It is abrogation or undoing of it from the beginning. It seeks to create a situation the same as if no contract ever had existed. It differs from a breach оf contract by abandonment or repudiation by one party, so recognized by the other. For rescission there must be mutuality, express or implied. The mutuality essential to rescission may be found to exist if, after breach of contract or abandonrhent by one party, the other by *75 word or act declares the contract rescinded.” (Italics ours.) Dooley v. Stillson,46 R.I. 332 , 335,128 Atl. 217 , 218,52 A.L.R. 1505 , 1507 (1928).
Rescission may be by mutual agreement or one party may rescind because of a substantial breach by the other.
The theory of plaintiffs’ case appears to be this: Defendants’ .wrongful demand that plaintiffs surrender possession of the property at a time when they were not in default was conduct clearly inconsistent with the contract and evinced their purpose to rescind it; plaintiffs, who were not in default, acquiescеd in defendants’ purpose by voluntarily surrendering possession, thereby rescinding the contract.
“(An) implied agreement to rescind may consist in an abandonment or repudiation of the contract by one of the parties assented to or acquiesced in by the other; but to constitute rescission by mutual consent, both of these elements must bе present. Conduct on the part of both the vendor and the purchaser which is inconsistent with the continuance of the contract of sale constitutes rescission by abandonment.” 91 C.J.S., Vendor & Purchaser § 124 (1955).
Abandonment, however, is to be inferred only from acts and conduct which are clearly inconsistent with the contract.
Bell v. Brown,
Taking the evidence most fаvorable to plaintiffs as true., considering it in the light most favorable to plaintiffs, and giving them the benefit of every inference which may reasonably be deduced from it — as we are required to do,
Edwards v. Johnson,
Reversed.