It was not so treated by the parties, and time was not of theessence of the contract: 26 Ency., p. 73. Failure to removeincumbrances before purchaser's offer to comply was nobreach of contract: 72 S.C. 556, 573. Mr. D.W. Robinson, for respondent, cites: Contract forsale involved agreement to make and tender conveyance,and to remove incumbrances: 6 Rich. Eq. 332; 16 S.C. 384; 14 Pet. 175; 10 L.Ed. 406. Vendor could not declareforfeiture of purchaser's rights: 81 S.E. 425. Vendee'saction for money had and received proper remedy: 72 S.C. 563; 148 U.S. 352; 37 L.Ed. 478; 2 Smith's Leading Cases 30; 36 L.R.A. (N.S.) 1220; 30 L.R.A. (N.S.) 809; 91 S.C. 288; 65 S.E. 907; 151 N.C. 168; 64 S.E. 958; 109 Va. 688. Time not of the essence of the contract: 41 S.C. 161; 6 Rich. Eq. 332; 84 S.C. 186; 9 S.C. 268; 61 U.S. 94; 15 L.Ed. 636; 61 U.S. 520; 15 L.Ed. 1009. After receiving partial payment made after stipulateddate, vendor should have given reasonable notice ofhis intention to enforce strict compliance in payment ofbalance due: 134 U.S. 68; 33 L.Ed. 823; 41 S.C. 161. Duty to remove incumbrances: 72 S.E. 628; 6 Rich. Eq. 332. When vendor repudiates a contract, the vendee neednot make tender: 73 S.E. 134; 89 S.C. 537; 105 N.W. 445; 2 L.R.A. (N.S.) 668.
Certainly it was after the defendants executed the agreement to pay plaintiff a commission for making sale of their property, and the alleged statements were insufficient to constitute a rescission or abrogation of that contract. Patton v. Lumber Co., 179 N.C. 103; May v. Getty, 140 N.C. 310; Manufacturing Co. v. Lefkowitz, 204 N.C. 449, 168 S.E. 517; Lewis v. Gay, 151 N.C. 168, 65 S.E. 907; Adams v. Battle, 125 N.C. 152; Palmer v. Lowder, 165 N.C. 331, 83 S.E. 464; Bell v. Brown, 227 N.C. 319. Defendants rely heavily on what they term their Exceptions 11 and 12, directed to the exclusion of testimony of the feme defendant.
We must, therefore, depend upon the rule of law, that in the absence of definite terms there is a presumed intent that the status quo ante should be restored. Young v. Bradley, 101 U.S. 782, 25 L.Ed. 1044; Gottwald v. Weeks, 41 N.M. 18, 63 P.2d 537; Calvert v. Joseph, 32 N.M. 384, 257 P. 680; Hurley v. Anicker, 51 Okla. 97, 151 P. 593, L.R.A. 1918B, 538; Chandler v. Wilder, 215 Ala. 209, 110 So. 306; Facendini v. Hillman, Mo. App., 298 S.W. 1073; Mascall v. Erikson, 131 Or. 509, 283 P. 2; Martin v. Bell-Woods Co., Tex.Civ.App., 57 S.W.2d 271; Hieatt v. Gassen, 41 Cal.App. 620, 183 P. 227; Dietz v. Rabe, 65 Mont. 500, 211 P. 343; Smith v. Treat, 234 Ill. 552, 85 N.E. 289; Pedley v. Freemen, 132 Iowa 356, 109 N.W. 890, 119 Am.St.Rep. 557; Adler v. Kohn, 96 Neb. 346, 147 N.W. 1131; Gahan v. Plant, 83 N.J.L. 219, 83 A. 775; Lewis v. Gay, 151 N.C. 168, 65 S.E. 907; Tice v. Zinsser, 76 N.Y. 549; Shively v. Semi-Tropic Land Water Co., 99 Cal. 259, 33 P. 848; Black on Rescission Cancellation, 2nd Ed., § 688; 66 C.J., Vendor and Purchaser, § 305; 12 Am.Jur. "Contracts" Sec. 451. There are authorities to the contrary, but it is the general rule. See Gillam v. Kahl, 44 Idaho 207, 256 P. 101; Williams v. Skelton, 40 Idaho 741, 237 P. 412, for the minority.
Wells v. Crumpler, 182 N.C. 350, 109 S.E. 49. In Lewis v. Gay, 151 N.C. 168, 65 S.E. 907, the Court said: "Parties may by parol rescind, or by matter in pais abandon" rights in land. In 65 C. J., 955, it is stated: "A cestui que trust, or one claiming to be such, who is competent to act for himself, may be estopped, or waive his right, to enforce a trust in his favor by words or acts on his part which, expressly or by implication, show an intention to abandon, or not to rely upon or assert, such trust, as by acquiescing, with knowledge of all the material facts, in the alleged trustee's acts in dealing with, or disposing of, the property in a manner inconsistent with the existence or continuation of a trust."
It was claimed that Alspaugh had no interest in it, but the property belonged to Hine. It was held that, "While an equitable interest in land may not be transferred by parol, it may be abandoned or released to the holder of the legal title by matter in pais, provided such intention is clearly shown; hence the settlement made in 1894 between H. and A., being in good faith, extinguished A.'s equitable right and vested in H. a fee simple title." In Lewis v. Gay, 151 N.C. 168, p. 170, the Court says: "Parties may (362) by parol rescind or by matter in pais abandon rights in land." See, also, May v. Getty, 140 N.C. 310; Burns v. McFarland, 146 N.C. 382; Matthews v. Thompson, 186 Mass. 14; Miller v. Pierce, 104 N.C. 389, and Faw v. Whittington, 72 N.C. 321, where Justice Bynum explains this principle with great clearness and accuracy.