¶1 after stating the facts: The testimony was conflicting upon the question whether the defendant agreed to abandon his rights acquired under the contract of October 17 th, 1889. The witness, who seems to have had'the custody of the writing, testifies that he mutilated it by direction of Boone, the defendant saying nothing — neither objecting, nor consenting. That paper constituted Drake a vendee, and, if, according to his contention, he did not surrender it and all rights secured to him under it, so as to constitute an abandonment, there is no admitted phase of the facts in which the relation of vendor and vendee can be held to have ceased, and that of landlord and tenant to have begun. Acts relied upon as constituting an abandonment must be “positive, unequivocal, and inconsistent with the contract.” Faw v. Whittington, 72 N. C., 324; Miller v. Pierce, 104 N. C., 389. The fact, if established, that the defendant remained silent when the witness Everett, under the direction of the plaintiff, mutilated the contract, is not necessarily inconsistent with the claim of an equity under it, much less a positive and affirmative surrender of his interest acquired under it. White v. Butcher, 6 Jones Eq., 231. It is familiar learning that, in equity, time is not of the essence of the contract, and notwithstanding the default in paying the purchase-money, the vendee, if he had not formally or unequivocally abandoned his rights, was the owner in equity, the vendor holding the legal title merely as security for the purchase-money. Scarlett v. Hunter, 3 Jones Eq., 84; Faw v. Whittington, supra; Falls v. Carpenter, 1 Dev. & Bat. Eq., 237.
¶2 The defendant Drake denies the allegation that he expressed dissatisfaction with the contract or asked that it be amended, but insists that the parties entered into a parol agreement merely for the modification of its terms. To *83 maintain his claim he had brought his suit for specific performance, and it was then pending in the Superior Court.
¶3 If, in any view of the testimony, the relation subsisting between the plaintiff and defendant was, when the action began, that of vendor and vendee, and not that of lessor and lessee, there was such a controversy as to the title as would oust the jurisdiction of the Justice of the Peace. The Superior Court, in the exercise of its powers as a Court of Equity, has the exclusive right to adjust the equities growing out of a contract of purchase if it is still subsisting. Parker v. Allen, 84 N. C., 466; Hughes v. Mason, 84 N. C., 472. The issue raised by the evidence is, whether the defendant abandoned the contract of purchase. Of that question a Court of Equity formerly had exclusive jurisdiction, and now, the material facts being in dispute, must be passed upon by a jury in the Superior Court. There is a controversy about the title, bringing the case clearly within the provisions of sub-section (2), §834 of The Code. The action was properly dismissed.
¶4 Affirmed.