A vendee may, by parol agreement with the vendor in consideration of rescinding the contract of purchase, become the tenant of the latter as to the land without surrendering possession, provided no rights have supervened that would be defeated by such rescission. Rileyv. Jordan, 75 N.C. 180; 12 A. . E., 263, note 5; Wood on Landlord and Tenant, page 14, note 8; Durant v. Taylor, 89 N.C. 351. But in order to avoid the contract upon this ground the vendor, or those claiming under him, must show an unconditional surrender by the vendee of his rights (Riley v. Jordan, supra), and acts or conduct relied upon as evidence of abandonment must be "positive, unequivocal and inconsistent with the contract." Faw v. Whittington, 72 N.C. 321; Holdenv. Purifoy, 108 N.C. 163. Where as in the case at bar the vendee enters under a bond for title and has executed notes for the purchase-money which are held by the vendor, the surrender of bond and notes by the holders to the maker and obligor respectively has been (31) repeatedly declared such a renunciation as would annual the contract of purchase. Faw v. Whittington, supra; McDougald v. Graham,75 N.C. 310; Fall v. Carpenter, 21 N.C. 237; Holden v. Purifoy, supra;Miller v. Pierce, 104 N.C. 389; Fortune v. Watkins, 94 N.C. 304. *Page 55
If the defendant's relation to the representatives of B. W. Britt is still that of vendee to vendor, though he may be in contemplation of law for some purposes considered a tenant at will, he is not a lessee within the provisions of the statute (The Code, sec. 1754), the title to whose crop is deemed vested in the landlord. McCombs v. Wallace, 66 N.C. 481;McMillan v. Love, 72 N.C. 18; Parker v. Allen, 84 N.C. 466; Hughes v.Mason, 84 N.C. 472. The section mentioned applies to cases where "lands shall be rented or leased by agreement, written or oral, for agricultural purposes, or shall be cultivated by a cropper," and is, like section 1756, plainly inapplicable where the occupant of land is a vendee or mortgagor.
The question now presented is whether the parties to the original contract, or those succeeding to their rights had directly or by an unavoidable implication arising from acts inconsistent with a purpose to insist on its enforcement, annulled or abandoned it and entered into a new agreement by which the defendant became a lessee instead of a vendee. It is, however, the province of the nisi prius judge, if not his duty, to instruct the jury upon the testimony what acts, if ascertained by them to have been done by the parties, constituted a renunciation of the contract. It was error in him to leave the jury without a definition of what amounted to an abandonment to determine whether the contract of purchase was still subsisting; and especially was this true if the evidence was not sufficient, in any phase of it, to be submitted as tending to show a renunciation or annulment of the original agreement by the parties thereto.Faw v. Whittington, supra.
The judge told the jury that "if they should believe from the (32) evidence that defendant had entered upon the land under this contract of purchase, and had thereafter abandoned his contract of purchase and had rented from B. W. Britt, the plaintiff, as Britt's executor, by virtue of the landlord and tenant act, would be the owner of all the crops raised on the land until the rents and advances were paid." Britt died, 15 September, 1891, and the crops of that year raised by the defendant on the land, which Britt had previously contracted to sell to him, were seized by the plaintiff, his executor, to satisfy a lien for the rent of that year ($125), and for advances to the amount of $150. It was admitted that the defendant still held the bond for title, bearing date in the year 1889, and that the sister of Britt and wife of the witness Whitted held the five notes executed for the purchase-money, each for the sum of $400, the first due 1 January, 1890, and the last 1 January, 1894.
The exception to the charge must, therefore, be sustained if there was not sufficient evidence to be submitted to the jury upon the question of abandonment. The testimony bearing upon the subject was objected to *Page 56 at the time of its admission as insufficient and incompetent evidence of abandonment, and the defendant thus presented the same objection at two stages of the trial.
In speaking of the surrender of a deed by the grantee before registration, the Court said of the decisions in Hare v. Jernigan,76 N.C. 471, and Beaman v. Simmons, ib., 43: "These later cases have introduced a new principle into our law, which we are not disposed to push beyond the point to which it has already gone." Phifer v. Barnhardt,88 N.C. 333. Up to that time, it seems to have been settled, first, that a purchaser claiming by virtue of a constructive trust against another who had purchased for him and advanced the purchase-money, might (33) by an unconditional surrender of his rights become by parol agreement a tenant under the purchaser or grantee (Riley v. Jordan,supra); second, that a grantee claiming under an unregistered deed might, if third parties had acquired no supervening rights under the conveyance, surrender the deed and thereby revest in the grantor any equitable interest that may have passed by it (Hare v. Jernigan, supra, and Hogan v.Strayhorn, 65 N.C. 279); third, that where the contract is executory, the redelivery of the bond or agreement to the vendor and the return of the notes for the purchase-money to the maker constitute unequivocal evidence of a purpose on both sides to abandon and annul the agreement entirely.McDougald v. Graham, supra; Beaman v. Simmons, supra.
It seems that the wife of the plaintiff executor had acquired the possession of the land in the early portion of the year 1892, when the defendant approached the plaintiff and proposed to rent the land in controversy for that year. The plaintiff offered on behalf of Mrs. Whitted, who claimed the land as devisee of Britt, to lease to defendant, provided he would surrender the bond for title executed by Britt and accept his five unpaid notes, but the defendant did not accede to the proposition and still holds the bond, which has been registered and was offered in evidence and relied upon to show that he occupies the relation of vendee to plaintiffs, to whom the legal title passed by the devise. In view of the refusal to surrender the bond, and the fact that the notes were in the possession of Britt when he died, and are now held by his daughter, we think that the learned judge who tried the case below erred when, in the face of the objections made in the progress of the trial, he submitted the question of abandonment to the jury and refused a motion for new trial founded upon an exception to the charge. The proof of the (34) declarations of the defendant at various times to the effect that he had agreed to pay $125 as rent for the year 1891 was not, of itself or in connection with any other testimony admitted, evidence to be submitted to the jury to show abandonment, when the notes were *Page 57 still held by the payee and the bond was in the hands of the obligee. The abandonment was not proved, directly or by unavoidable inference, in any view of the testimony.
The question as to the necessity for ascertaining, by admissions of the parties or a finding of the jury, the value of property seized by virtue of the proceeding of claim and delivery, is eliminated by resting our decision upon the ground of the want of evidence of abandonment; but it may be well to say that the late statute, as to the form of the judgment in such proceeding, is discussed and construed in Hall v. Tillman, 110 N.C. 220.
For the reasons given, we think that the court below erred.
NEW TRIAL.
Cited: Crinkley v. Egerton, 113 N.C. 448, 450, 451; Jones v. Jones,117 N.C. 258; Gorrell v. Alspaugh, 120 N.C. 368; Ford v. Green, 121 N.C. 73,74; Hemmings v. Doss, 125 N.C. 402; May v. Getty, 140 N.C. 316;Redding v. Vogt, ib., 568; Hairston v. Bescherer, 141 N.C. 208; Lewis v.Gay, 151 N.C. 170; Eubanks v. Becton, 158 N.C. 238.
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