
    12933.
    Cheek v. McWhorter.
    Decided September 27, 1922.
    Complaint; from Hart • superior court — Judge W. L. Hodges. August 23, 1921.
    
      G. A. Adams, T. G. Borough, for plaintiff in error.
    
      W. B. Little, W. S. McDaniel, contra.
   Stephens, J.

1. Surrender to the vendor by the vendee of actual possession of the land purchased under a bond for title, where the surrender is made in pursuance of a parol contract to rescind the sale, is such a part performance as will take without, the statute of frauds such parol contract which provides for a rescission of the sale and a surrender to the vendee by the vendor of the former’s purchase-money notes and a cancellation of the indebtedness evidenced thereby.

2. In a suit by the vendor against the vendee on such purchase-money notes, a plea by the defendant, alleging, by way of satisfaction in full of the notes sued on, a parol agreement by which the plaintiff is to deliver to the defendant the purchase-money notes sued on and the defendant is to deliver to the' plaintiff the bond for title, and alleging a surrender by the defendant to the plaintiff of the land in question, constituted a good defense to the suit and was improperly stricken on demurrer. Judgment reversed.

Jenkins, P. J., and Bell, J., concur.  