The Trust theorizes that it is "appropriate" to allow a purchaser under a failed land transaction an equitable lien on the property for improvements the purchaser made on it, rather than a money judgment against the seller. The Trust relies on Funk v. Baird, 72 N.D. 298, 6 N.W.2d 569 (1942) and Tompkins v. Sandeen, 243 Minn. 256, 67 N.W.2d 405 (1954), for this proposition. But both cases approved an equitable lien to avoid unjust enrichment of the sellers.

This court has previously recognized the semantic difference between the two words. See Fedorenko v. Rudman, 71 N.W.2d 332, 336 (N.D. 1955); Funk v. Baird, 72 N.D. 298, 306, 6 N.W.2d 569, 573-574 (1942). However, in the context of the present case, we note the following observations of Professor Williston in 12 Williston on Contracts § 1454A, at 9-10 (3d Ed. 1970):

Bauer v. National Union Fire Ins. Co., 51 N.D. 1, 198 N.W. 546. Rescission does not merely terminate a contract, it abrogates and undoes the contract from the beginning. Funk v. Baird, 72 N.D. 298, 306, 6 N.W.2d 569, 573. Generally speaking, rescission abrogates the contract not partially but completely. Raasch v. Goulet, 57 N.D. 674, 223 N.W. 808. Insofar as it is possible the plaintiffs are seeking the unmaking of the contract by procuring a reconveyance of the minerals that have not passed into the hands of innocent persons.

Rescission, once accomplished, completely abrogates the contract from the beginning. Funk v. Baird, 72 N.D. 298, 6 N.W.2d 569; Raasch v. Goulet, 57 N.D. 674, 223 N.W. 808. The notice of rescission which the plaintiff mailed to the defendants on or about February 14, 1952, was defective in several particulars.

The rule is well established that on such appeal the judgment of the trial court upon the facts must "have weight and influence with this Court, especially when based upon the testimony of witnesses who appeared in person before that court." Christianson et al. v. Warehouse Association, 5 N.D. 438, 67 N.W. 300; Bingenheimer Mercantile Co. v. Sack, 50 N.D. 381, 385, 195 N.W. 969, 970; Doyle v. Doyle, 52 N.D. 380, 389, 202 N.W. 860, 863; Coykendall v. Briggs et al, 60 N.D. 267, 270, 234 N.W. 74, 75; Horner v. Horner, 66 N.D. 619, 620, 268 NW 428; Donovan v. Johnson, 67 N.D. 450, 455, 274 N.W. 124, 125; Buchanan v. Buchanan, 69 N.D. 208, 285 N.W. 75; Funk v. Baird, 72 N.D. 298, 309, 6 N.W.2d 569, 575; Klundt v. Pfeifle, 77 N.D. 132, 41 N.W.2d 416. In this case the parties and their witnesses appeared in person and testified.

The rule announced in Christianson et al v. Warehouse Association, supra, that on a trial de novo on appeal "the judgment of the trial court upon the facts must still have weight and influence with this court, especially when based upon the testimony of witnesses who appeared in person before that court," has been adhered to and applied by this Court in many subsequent cases. See Bingenheimer Mercantile Co. v. Sack, 50 N.D. 381, 385, 195 N.W. 969, 970; Doyle v. Doyle, 52 N.D. 380, 389, 202 NW 860, 863; Coykendall v. Briggs et al, 60 N.D. 267, 270, 234 NW 74, 75; Horner v. Horner, 66 N.D. 619, 620, 268 N.W. 428; Donovan v. Johnson, 67 N.D. 450, 455, 274 N.W. 124, 125; Buchanan v. Buchanan, 69 N.D. 208, 285 N.W. 75; Funk v. Baird, 72 N.D. 298, 309, 6 N.W.2d 569, 575; Klundt v. Pfeifle, 77 N.D. 132, 41 N.W.2d 416. In Doyle v. Doyle, supra, this Court said:

Respondent was, therefore, entitled to rent for use and occupancy of the premises. Mochel v. Cleveland, 51 Idaho 468, at page 482, 5 P.2d 549; 102 A.L.R. 874; Cook-Reynolds Co. v. Chipman, supra; Mitchell v. Hughes, 80 Or. 574, 157 P. 965; Friedrichsen v. Cobb, 84 Mont. 238, 275 P. 267, at page 270; Larson v. Thomas, 51 S.D. 564, 215 N.W. 927, 57 A.L.R. 1246; Kunde v. O'Brien, 214 Iowa 921, 243 N.W. 594; Himebaugh v. Chalker, 261 Mich. 80, 245 N.W. 576; Funk v. Baird, 72 N.D. 298, 6 N.W.2d 569; Kilpatrick v. Smith, 236 Iowa 584, 19 N.W.2d 699; Lutz v. Cunningham, 240 Iowa 1037, 38 N.W.2d 638, at page 647; Passent v. Peter Vredenburgh Lumber Co., 325 Ill.App. 260, 60 N.E.2d 39, at page 40; Huff v. Knight, 54 R.I. 370, 173 A. 121; Schultz v. Freeland, 107 Fla. 286, 145 So. 257; Smith v. Wolf, 50 Ga. App. 19, 176 S.E. 889; Waugh v. Williams, 342 Mo. 903, 119 S.W.2d 223; Schenk's Committee v. Riedling, 294 Ky. 218, 171 S.W.2d 251. This balancing of the respective rights of the parties, the jury aptly and succinctly carried out by awarding the vendor $1,500 for rent — which coincidentally equalled the down payment — found no waste had been committed, ordered repossession of the property to vendor, and quieting her title.

In a case like this where intent is the vital question at issue, the rule that the findings of the trial court must be given appreciable weight has especial application. Christianson v. Farmers' Warehouse Asso. 5 N.D. 438, 67 N.W. 300, 32 LRA 730; Donovan v. Johnson, 67 N.D. 450, 274 N.W. 124; Funk v. Baird, 72 N.D. 298, 309, 6 N.W.2d 569. The facts in this case differentiate it from the cases cited by the plaintiff and clearly sustain the findings of the trial court.

The court must ascertain the facts from the record, but in making its determination the findings of the trial court are entitled to appreciable weight. Christianson v. Farmers' Warehouse Asso. 5 N.D. 438, 67 N.W. 300, 32 LRA 730; Doyle v. Doyle, 52 N.D. 380, 202 N.W. 860; Funk v. Baird, 72 N.D. 298, 6 N.W.2d 569. The record is most unsatisfactory. In some respects it presents hopeless conflicts. For that reason we have gone into detail in the foregoing statement.