Dodge, J.
The first question seriously discussed is-whether the railway company has so failed in performance on-*11its part of tbe contract for tbe exchange of lands that plaintiffs ongbt not to be beld to performance on tbeir part. That it did fail, and declare its inability, to make conveyance in-technical compliance with its agreement, on demand, is confessed, bnt whether the tender of a full warranty deed from-, the true owner of the land might not be held a sufficient compliance, even without covenants of warranty from the company, is, to say the least, doubtful, standing alone. Bateman v. Johnson, 10 Wis. 1. In the instant case, however, that is not the only defect. With the tender of the deed from Shen-ners came the information that she held-title “in trust” for the railroad company, and the intimation at least that the consideration for the land had been paid by the company. Whether this was a trust duly declared in writing was not disclosed, nor, if so, whether active or passive. If passive, so that title at once vested in the railroad company, would not the lien of the mortgage immediately fasten thereon ? If active, would the proposed conveyance to plaintiffs be in breach of it? If there was no express trust, was not the title of' Shenners clouded by the possibility of a resulting trust in. favor of all creditors under sec. 2078, Stats. (1898), subject to plaintiffs’ ability to overcome the presumption of fraudulent intent created by that statute? We do not think a conveyance casting upon the grantee the burden of answering at his peril such conundrums as these is the equivalent of the perfect title for which plaintiffs had agreed to convey their lands.
When the railroad company thus failed to carry out its-part of the executory agreement plaintiffs had the right either-to sue for damages fpr the breach or to declare their election to rescind. The company, being unable to carry out the contract to exchange certain lands, could not compel plaintiffs to-sell, their land for a sum of money which they had never-agreed to accept. Akerly v. Vilas, 15 Wis. 401, 413; Booth v. Ryan, 31 Wis. 45, 58; Lutz v. Compton, 77 Wis. 584, 46 *12N. W. 889. They adopted the latter course, thereby, of course, surrendering all 'rights, equitable or otherwise, in the lands which the company had agreed to convey them and their right to retain the money consideration which had been paid them. They accordingly tendered full surrender and repayment. Their right then became perfect to receive from the railroad company all that they had parted with to it in pursuance of the contract. Doubtless, so far as a complete enforcement of that right could be had in a court of law, the plaintiffs should there seek it, and not apply to a court of equity unnecessarily for relief; but they have applied to a court of equity and the defendants have raised no objection to their so doing, which of itself may be deemed a consent that the court, by exercise of its equitable powers, may consider and grant whatever form of relief is proper under the circumstances. Smith v. Putnam, 107 Wis. 155, 82 N. W. 1077, 83 N. W. 288. Apart from such consideration, however, the situation is so complicated by the construction, now completed, of a public railroad over the land that no mere recovery at law can fully re-establish plaintiffs’ rights. But for that fact they might seek recovery of the possession of all their land with which they had parted in pursuance of the contract. But that transaction had at least served the purpose of a consent to the construction of the railroad over a portion of this land, and the policy of our statute law is against the disturbance of such a status once created with the •consent of the owner. Sec. 1852, Stats. (1898); Hanlin v. C. & N. W. R. Co. 61 Wis. 515, 21 N. W. 623; Babcock v. C. & N. W. R. Co. 107 Wis. 280, 83 N. W. 316; Stewart v. Milwaukee E. R. & L. Co. 110 Wis. 510, 86 N. W. 163; Brickles v. Milwukee L., H. & T. Co. 134 Wis. 358, 114 N. W. 810. Still the written agreement, unless completely rescinded, continually confronted plaintiffs as an obstacle to obtaining statutory compensation for that part of the land applied to railroad uses. The question of the effectiveness *13of their attempted rescission in pais was, at the time of the commencement of the action, one which could be answered finally only by a decision of a court. The contract, therefore, presented, even after declaration of rescission, a cloud upon the title of their lands, and an obstacle to the sale thereof, the-removal of which is inherently a function of equity, and,, besides, is specially and additionally enjoined by sec. 3186,. Stats. (1898).
It seems to us obvious that the definement of the parties’' rights by a decree in equity is essential to anything like a complete re-estahlishment of the status quoand that no mere recovery at law of either damages or the possession of the-land subject to the right of way can be full adequate relief. We agree with the trial court that by reason of the failure and' inability of the railroad company to convey to the plaintiffs a clear and unquestionable title to the lands on the west side of the right of way, the plaintiffs had a right to rescind the contract and did effectively exercise that right, except that they could not remove its effect as a consent to the occupation of the proposed right of way by the railroad, from which must result, of course, the continuance of that occupation and the resulting duty to make compensation in the manner prescribed by sec. 1852, Stats. (1898). This we understand to be the effect of the judgment entered by the circuit court,, although not therein fully expressed.
By the Court. — Judgment affirmed.