On Rehearing.
McCLELLAN, J.Upon a further examination of the evidence in this cause we have reached the conclusion that it was the intention of George E. Whisenant and his mother, Mary Whisenant, and their contract, cognizable in equity, though inoperative at law, to rescind the sale by the latter to the former of the land in controversy, and to revest the title in Mary Whisenant. We are now of the opinion that this purpose and parol contract are clearly shown by the redeliverv of the deed to Mrs. Whisenant; her contemporaneous abandonment of the house of her son George, where, by the terms of the deed, he was to support her for life in consideration .pf her conveyance of the land to him ; his ceasing from that time to yield this continuing consideration; his failure, certainly after the current year, during-her life, and for more than a year after her death, — in all six or seven years, — to assert any claim to the land ; the constant assertion during this- time of ownership by Mrs. Whisenant and her vendee, the complainant; and his repeated declarations, which we think the evidence satisfactorily establishes, that he he was tired of his mother, that “she was bothersome,” that he “would not be bothered with her for two such places,” that he “had *261about been paid for what he had done for her, and that, as she wanted the land to make a support out of or to sell, he had returned the deed to her, and had or did not intend to have anything more to do with the land, ” etc. It is true that there is no direct, positive evidence of an express agreement of a rescission or to rescind, and that one party swears there was no such agreement, while the mouth of the other is sealed in death, but the circumstances surrounding the transaction, the conduct of the parties, and the declarations of the defendant point with great emphasis to the conclusion that there was such an agreement, and that its terms involved an equitable reconveyance of the land to Mrs. Whisenant; and the facts adduced are inexplicable upon any other hypothesis. That such an agreement may be thus shown by circumstances with requisite certainty can not be questioned. Wat. Spec. Perf., § 493; Fry, Spec. Perf., § 1003. And that when the agreement is sufficiently shown, — as we now find in this case, — though relating to realty and resting in parol, equity will specifically enforce it is demonstrated in the opinion in chief. The members of this court when the case was originally decided were doubtful of the conclusion then reached on the facts, and none more so than the learned justice who delivered the opinion. We now reach a different conclusion, set aside the judgment of reversal heretofore entered, and affirm the decree of the chancery court.