To the same effect see Annotations L.R.A. 1918B, 540; Gibson v. Brannum, 230 P. 861 (Okla.); Rafferty v. Gaston, 204 P. 595 (Wash.); Beatty v. Wintrode Land Co., 155 P. 574 (Okla.); Helm v. Rone, 141 P. 678 (Okla.); King v. Milliken, 143 N.E. 511 (Mass.); 27 R.C.L., 624, sec. 378. A distinction, of course, must be made between the forfeiture of a vendee's rights under a contract by notice in the way provided by statute, and the forfeiture of those rights by abandonment.

"Where a vendee pays money in part performance of an executory contract of sale and fails to perform it, he cannot recover of the vendor the money so paid." Beatty v. Wintrode Land Co., 53 Okla. 118, 155 P. 574; Snyder v. Johnson, 44 Okla. 388, 144 P. 1035; Hurley v. Anicker, 51 Okla. 97, 151 P. 593; Jackson v. Peddycoart, 98 Okla. 198, 224 P. 689. In Helm v. Rone, 43 Okla. 137, 141 P. 678, there appears an excerpt from the opinion in Hansbrough v. Peck, 72 U.S. 497, 18 L.Ed. 520, which expresses the controlling rule in this language, to wit:

"5. The rule that a vendor, when he elects to rescind a contract for the sale of real estate, 'must restore to the other party everything of value which he has received from him under the contract' (section 986, Rev. Laws 1910, sec. 5079, C. O. S. 1921), does not apply to the defendant in a suit for specific performance commenced by the vendee, where the vendor pleads an abandonment of contract for the purpose merely of defeating the plaintiff's demand, and does not set up any affirmative equitable defense or claim any affirmative relief." To the same effect: Beatty v. Winthrop Land Co., 53 Okla. 118, 155 P. 574; Hurley v. Anicker, 51 Okla. 97, 151 P. 593. Under the provisions of section 5079, C. O. S. 1921, it is provided that in rescission, when not effected by consent, the party rescinding must restore to the other party everything of value which he has received from him under the contract, and it will be observed that this provision applies only when the rescission is not effected by consent.

"Where a vendee contracts to purchase certain real estate and after paying part of the purchase price, makes default, he cannot recover the money paid even though the property in question be the homestead and the contract of sale was not signed by wife of vendor." In support of this proposition defendant cites the following cases: Schechinger v. Gault et al., 35 Okla. 416, 130 P. 305, 1914D, Ann. Cas. 468; Baker v. Haswell Taylor, 36 Okla. 429, 128 P. 1086; Martin v. Spaulding et ux., 40 Okla. 191, 137 P. 882; Helm v. Rone, 43 Okla. 137, 141 P. 678; Hurley v. Anicker, 51 Okla. 97, 151 P. 593, L. R. A. 1918 B, 544; Snyder v. Johnson, 44 Okla. 388, 144 P. 1035; Price v. McDowell, 52 Okla. 608, 153 P. 649; Welier v. Dusky, 51 Okla. 77, 151 P. 606; Beatty v. Wintrode Land Co. et al., 53 Okla. 118, 155 P. 574; Claremore Townsite Co. v. Burke, 56 Okla. 169, 155 P. 897; Kershaw v. Hurtt, 66 Okla. 117, 168 P. 202. Defendant pleaded and proved that he and his wife prepared a warranty deed and were ready and willing to deliver same to plaintiff at any time she paid the price for the property, and that they had been ready and willing to do this at all times since February 14, 1918.

See sections 11, 12, and 13, art. 7, Oklahoma Constitution; section 1079, Compiled Oklahoma Statutes 1921; In re Estate of Green, 80 Okla. 256, 196 P. 128; See, also, Hathaway et al. v. Hoffman, 53 Okla. 72, 153 P. 184; Scott v. Abraham, 60 Okla. 10, 159 P. 270; King v. Mitchell, 69 Okla. 207, 171 P. 725; Tucker v. Leonard, 76 Okla. 16, 183 P. 907; Vinson v. Cook, 76 Okla. 46, 184 P. 97. See 12 R. C. L. 1126; Beatty v. Wintrode Land Co., 53 Okla. 118, 155 P. 574. 20. There is such material difference in the constitutional and statutory provisions of the various states in relation to their courts of probate that opinions of those courts are often more confusing than instructive.

Specific performance cannot be enforced on a contract where the vendor, who is a party to the contract, has conveyed the property to one who is free from equities. Beatty v. Wintrode Land Co. et al., 53 Okla. 118, 155 P. 574; Halsell v. Renfrow, 202 U.S. 287, 50 L.Ed. 1032, 6 Ann. Cas. 189. For the reasons stated, specific performance cannot be had. The cause is reversed, with directions to enter judgment for the defendants McGee for possession of the land.