This is an appeal from a judgment in favor of appellee in a suit instituted by appellant upon a promissory note. Appellant- filed his original petition on the 20th day of January, 1925. He alleged that on the 4th day of January, 1921, the defendant executed and delivered to the plaintiff a-promissory note in writing for the sum of $5,000, due 12 months after date, with interest at the rate of 10 per cent, per annum and attorney’s feesthat at the time of the execution of the note the defendant, Williamson, joined by his wife, executed and delivered to J. F. Boyd, trustee, a deed of trust, securing said note by a lien on 100 acres of land situated in Hill county, Tex.; that under the power specified in the deed of trust the trustee, after due advertisement, sold said land on December 2, 1924, for a cash consideration of $1,000; that said sum, less $50 commission paid the trustee as provided in the trust instrument, was applied as a credit upon said note on December 2, 1924. It was alleged that the remainder of the indebtedness by virtue of said note was long past due and unpaid, and the prayer was for a recovery of the same, together with interest and attorney’s fees.
On May 30, 1927, the defendant, P.. G. Williamson, appealed and answered by a general denial, and a further special plea to the effect that on March 1, 1922, the defendant, joined by his wife, executed and delivered to the plaintiff a general warranty deed conveying to him the 100 acres of land described in the plaintiff’s petition and in said trust deed “in full settlement of a note sued on by plaintiff herein, which said deed and conveyance was then accepted by the plaintiff in full settlement of said indebtedness.”
The pleadings of the parties present other Issues and circumstances which are thought not to be material to an understanding of the propositions upon which this appeal is predicated, and, hence, will not be noticed further than to say that the plaintiff denied the defense presented by the appellee.
After the introduction of the evidence, the case was submitted to a jury on special issues, which, together with the answers of the jury thereto, are as follows:
“(1) Did W. F. George accept a conveyance of the land described in the deed of trust from Williamson and his wife in full settlement of the note in controversy? Answer: Yes.
“(2) At the time P. G. Williamson executed a deed of trust on the 100 acres of land known as the Williamson land involved in this case, did he represent that said land was worth $10<> per acre? Answer: No.
“(3) What do you find to have been the reasonable market value of the 100 acres of land on the 4th day of January, 1921? Answer: Round figures, $7,000.
“ (4) Did W. F. George and P. G. Williamson, subsequent to the making of the conveyance dated May 11, 1922, from Williamson and wife to George, agree orally that such conveyance-would not bfe effective, hut that Williamson would in all events pay the note and keep the land? Answer: Yes.”
Upon the verdict so rendered the court entered his judgment in favor' of defendant, to which the plaintiff excepted and has duly prosecuted this appeal.
W’e copy the following from appellant’s brief:
“Propositions upon which appeal is predicated:
“First proposition: Although the jury found that there was an original agreement that George should accept a deed in cancellation of the debt issued upon, still they further found: that subsequently thereto another agreement was made whereby this original transaction was rescinded and it was agreed that Williamson should keep the land and pay the debt in any event, and while this subsequent transaction. *761was oral, the statute of frauds was neither pleaded hor was the evidence objected to because thereof, such subsequent transaction is fully binding and required a judgment in favor of appellant.
“Second proposition: Although the jury found that there was an original agreement that George should accept a deed in cancellation of the debt sued upon, still they further found that subsequently thereto another agreement was made whereby this original transaction was rescinded and it was agreed that Williamson should keep the land and pay the debt in any event, and while this subsequent transaction was oral, the statute of frauds was neither pleaded nor was the evidence objected to, because thereof such subsequent transaction is fully binding and forbade any judgment against appellant.”
It thus appears that no complaint is made of any error on the part of the court in the submission of the issues, or in failing to submit issues requested, or any contention that the evidence fails to sustain the verdict of the jury upon the issues answered. So that the simple question presented is whether or not the court erred in rendering judgment as he did upon the findings of the jury. As it seems to us, it is apparent that he did not. The jury found that on the 4th day of January, 1921, when the defendant executed the note and trust deed declared upon by the plaintiff, the reasonable market value of 100 acres of land described in the trust deed given to secure the note was $7,000; that at that time the defendant did not represent, as plaintiff alleged, that the land was worth $100 an acre. The jury, in answer to special issue No. 1, supported appellee’s defense to the effect that he had conveyed the land described in the trust deed to the plaintiff “in full settlement of the note in controversy.” This being true, it is evident that the legal title passed from the defendant to the plaintiff and the debt evidenced by the note became extinguished and of no further force and effect. As stated, it is not contended that this finding' of the jury is not supported by the evidence, nor is it contended that at the time of this conveyance by defendant in settlement of the debt in controversy any artifice or fraud was exercised on the part of defendant to induce appellee’s acceptance of the same. The only contention made is founded on the finding of the jury in answer to special issue No. 4, to the effect that, after the making and delivery of the deed in settlement of the debt, it was orally agreed between George and Williamson that such conveyance should not be effective, but that Williamson would in all events pay the note and keep the land. We fail to see how it can be reasonably contended that the oral agreement, as found, should, by a court, judgment, be given the effect of reinvesting the legal title to the land described in the trust deed in the defendant, and reinstating in full force and effect the obligation of the note and trust deed declared upon by the plaintiff. It is insisted that the oral agreement amounted to a valid cancellation of the original written instruments and should be given the effect contended for upon the authority of such cases and that of Terhune v. First Nat. Bank, 24 Tex. Civ. App. 242, 60 S. W. 356, by the Dallas Court of Civil Appeals. But that case; and others cited of like effect, was one in which the grantor had conveyed land, reserving a vendor’s lien for unpaid purchase money, and it was held that the contract was executory and as such might be orally rescinded by the agreement of the parties, supported by sufficient consideration, on the theory that the contract was executory and the legal title already in the vendor, and hence that no necessity existed for a formal recon-veyance.
Our statute of frauds (Rev. Statutes of 1925, art. 3995) provides, among other things, that:
“No action shall be brought in any court in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized: * * *
“Upon any contract fqr the sale of real estate or the lease thereof for a longer term than one year.”
It is insisted .that appellee cannot be given the benefit of the statute quoted, inasmuch as it was not pleaded by him nor was any objection made to the evidence relating to the oral agreement. While ordinarily this would be true, yet the mere fact that the appellee failed to plead the statute and failed to object to the evidence establishing the oral agreement cannot be given the effect of divesting out of plaintiff the legal title vested in him by defendant’s conveyance in settlement of the debt, and reinvesting that title in the defendant. Rescission and cancellation of instruments of the character under consideration is a doctrine or rule of equity which is not applied in the absence of fraud, accident, or mistake, or some other equitable ground, and nothing of the kind has been proven or determined in this case. See 2 Story on Equity Jurisprudence, § 297 et seq.
In the case of Hooks v. Bridgewater, 111 Tex. 122, 229 S. W. 1114, 15 A. L. R. 216, it is said, in an opinion by Chief Justice Phillips, that three things were necessary to relieve a parol sale of land from the operation of the statute of frauds, to wit: (1) Payment of the consideration, whether it be in money or services; (2) possession by ,the vendee; and (3) the making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor; or without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced. See, also, Bradley v. Owsley, 74 Tex. 69, 11 S. W. 1052. *762Indeed, we- fail to see that the statute of frauds has any application in this case. That statute applies to executory contracts for the sale of lands and not to cases whqre the contract has been fully executed. -To grant the relief to appellant now insisted upon would be to affirm, in effect, a claim prohibited by article 1288 of our statutes relating to conveyances. This article expressly declares that:
“No estate of inheritance or freehold, or for a term of more than one year, in lands and tenements, shall be conveyed from one to another, unless the conveyance be declared by an instrument in writing, subscribed and delivered by the party disposing of the same, or by his agent thereunto authorized by writing.”
While plaintiff in his pleadings offered to execute a reconveyance of the land to defendant, theré is no finding that any such tender was actually made, but, if so, we find no supportable reason for holding that the defendant was bound to accept the same. His debt was liquidated, no fraud, accident, mistake, or duress was shown, no consideration for the oral agreement was found or shown, other than the mere declaration that defendant should resume his former ownership and control in the land, and we know of no principle upon which we can rest a holding that he was compelled to reassume the obligation of the note and accept the deed.
We think it so apparent that the court below entered the proper judgment that we forbear further discussion and affirm the judgment.