Whatever may have been the contract between the appellant and his father, in relation to the lands claimed in his bill, it was rescinded, after his father’s death, by the act of appellant himself.
The proofs show that appellant presented his claim before the Probate Court, against his father’s estate, for the very services which he now claims were the consideration of the sale of the land to him, and recovered a judgment for three thousand dollars, being the full measure of his compensation, as fixed by himself. He has thus disaffirmed the very contract which he now seeks to enforce against the legal representatives of his father. This he cannot do. In Herrington v. Hubbard, 1 Scam. R. 569, this court say: “ Bringing a suit to recover back the consideration money, after a breach of the contract, is equivalent to an express disaffirmance of the contract, and is to be regarded as sufficient evidence of the determination of the party to treat it as rescinded, inasmuch as the consideration can only be recovered back on the ground of a disaffirmance of the contract.”
We see no difference, in principle, between that case and this. This disposes of the whole case, rendering it unnecessary to consider the statute of frauds in connection with it, or the doctrine of part performance, as taking a case out of the operation of that act. When such a case is fhirly presented, the views of the court upon the whole doctrine will be fully expressed. Now it is not necessary.
The decree is affirmed.
Decree affirmed.