ROSE, Justice.
These consolidated appeals have as their origin an action brought by Donald G. Price and G. Roger Sedam, buyers, against Oliver and Geneva Bakken, sellers, to rescind a contract of sale and recover the down payment for the purchase of real property in Park County. Sellers counterclaimed seeking either to recover on a promissory note for the balance of the purchase price and to foreclose a mortgage given as security therefor, or to regain title to the property and retain the down payment as liquidated damages. Both parties moved for summary judgment and, consistent with the prayer of the purchasers, the summary judgment rescinded the contract and awarded the buyers the $6,000.00 paid on the purchase price, with interest from and after July 1, 1977, [1223]*1223the date of delivery of the deed, note and mortgage and payment of $5,000.00 of the aforesaid purchase-price money. Allowance of costs, including attorney fees incurred in the litigation, was denied. Sellers appeal from the money judgment against them and the refusal of the court to enforce the note and mortgage. Buyers cross-appeal from the denial of the costs.
We will reverse and remand.
THE ISSUE
The main question raised by these appeals has to do with the rights of the buyers, after they had received a warranty deed to the property and had delivered their note and mortgage to the sellers, to rescind the contract because a title insurance policy, although bargained for, could not be issued showing title in them since the recording of the deed was refused by the county clerk.
FACTS
With the execution of a document entitled “Purchase Agreement Acceptance and Receipt” (sometimes referred to herein as the contract for sale), the purchasers agreed to buy and the sellers agreed to sell land in Park County, Wyoming, for $66,000.00. $1,000.00 was to be and was paid upon the execution of the agreement on May 31, 1977, and $5,000.00 was paid on July 1,1977. A note and mortgage served as evidence of and security for the balance.
On this last-mentioned day, the promissory note and the mortgage were delivered to the sellers, and a warranty deed showing sellers as grantors and purchasers as grantees was delivered to the buyers. Delivery of these three instruments was made after the time called for in the contract for issuing a title policy showing merchantable fee title in the sellers and the issuing of a title insurance commitment to provide a policy of title insurance insuring title in the buyers. In June of 1978, buyers attempted but were unable to record the warranty deed.
On August 23, 1978, the Park County Clerk informed buyers that the warranty deed could not be recorded until the land was subdivided and a plat recorded according to the requirements of the Park County Assessor. The reason for this refusal was that the land “had already been subdivided the maximum number of times.” (Affidavit of County Clerk Phyllis Smith Saggoner, attached to plaintiff’s motion for summary judgment.)
Purchase Agreement Acceptance and Receipt
Relevant provisions of the Purchase Agreement Acceptance and Receipt, i. e., the contract for sale, entered into by the parties hereto on the 3lst day of May, 1977, are the following:
1. Paragraph 8 of the aforesaid agreement provides in relevant part:
“Promptly after SELLER’S acceptance of this offer, SELLER shall, at SELLER’S expense, . . . furnish BUYER a Title Insurance Policy in the full amount of the purchase price of the real property in a Title Insurance Company authorized to do business in the State of Wyoming, reflecting merchantable fee title in SELLER, . . . subject only to . (e) zoning or building laws or ordinances if any. . . .” (Emphasis supplied.)
2. Paragraph 10 of the agreement provides:
“If a Title Insurance Policy is furnished by the SELLER, the SELLER shall also within 15 days after acceptance of this offer, furnish the BUYER with a written Commitment from the Title Insurance Company evidencing its willingness to issue the required Title Insurance Policy upon completion of sale, . . . ” (Emphasis supplied.)
3. The parties further agreed in Paragraph 11:
“SELLER agrees to execute and deliver all necessary instruments and transfer title by General Warranty Deed.”
[1224]*1224
The Title Insurance Commitment
The Purchase Agreement Acceptance and Receipt having been entered into on the 31st of May, 1977, the record shows that a title insurance policy commitment, dated May 23, 1977, had been previously ordered. This commitment (delivered to buyers shortly after they delivered their note and mortgage to sellers on July 1, 1977, according to Sedam’s deposition), obligated the title insurance company to insure the property in fee title in Donald G. Price and G. Roger Sedam under certain conditions. The commitment was predicated upon these essential propositions:
The commitment’s Paragraph 2 provided:
“The estate or interest in the land described or referred to in this commitment and covered herein is fee simple.” Paragraph 3 said:
“Title to said estate or interest in said land is at the effective date hereof vested in Oliver Bakken and Geneva Bakken.”
One of the “requirements” defined by the commitment as necessary to create a fee simple estate in the property in the proposed insureds, Donald G. Price and G. Roger Sedam, was the following:
“Instruments necessary to create the estate or interest to the insured must be properly executed, delivered and duly filed for record.” (Emphasis supplied.)
In plain English — these various provisions contained in the contract of sale and the title insurance commitment impose the following rights, duties and obligations upon the parties:
The Bakkens’ Obligations:
When the Bakkens signed the Purchase Agreement Acceptance and Receipt on May 31, 1977 (thereby accepting Price’s and Se-dam’s offer to buy the land for $66,000.00), it became their obligation to:
1. Deliver to Price and Sedam a warranty deed showing Bakkens as grantors and Price and Sedam as grantees. This was done on July 1, 1977.
2. Provide buyers, Price and Sedam, with a title insurance policy showing “merchantable fee title” in Bakkens, the sellers, subject to “. . . zoning and building laws, if any. . . .” This obligation was to be discharged “promptly after sellers’ acceptance of this offer.” (Contract language). The “acceptance” date was May 31, 1977. The sellers did not furnish the buyers such a policy by May 31, 1977, or at any subsequent time.
3. Since title insurance was utilized (as opposed to an abstract), the Bakkens were also obliged, in addition to their duty to furnish buyers a policy showing “merchantable fee title in the sellers," to furnish Price and Sedam with a commitment from the title company within 15 days after signing the Purchase Agreement Acceptance and Receipt.1 This commitment was to provide that the title insurance company would agree to issue a title policy which would insure title in fee simple in Price and Se-dam when the sale was completed.2 One of the commitment provisions was that the instrument necessary to create a fee simple estate in the buyers (a warranty deed) would be filed of record.
The commitment, which predated the contract for sale, but which was delivered July 1, 1977, was issued by the title company, but its provisions with respect to issuing a policy showing title in Price and Sedam was incapable of fulfillment because of the non-recordability of the deed. That is to say — when the deed was presented, the county clerk refused to record it. Therefore, the contract provisions requiring Bakkens to furnish a title insurance policy showing “merchantable title in SELLER,” [1225]*1225as well as the provision requiring the Bakk-ens to furnish a commitment evidencing the title insurance company’s willingness to issue its policy showing title in the buyers, Price and Sedam, was incapable of fulfillment by the Bakkens because the deed could not be recorded.
Price’s and Sedam’s Obligations:
It was — under the agreement to buy and sell — the purchasers’, Price’s and Sedam’s, obligation to deliver the note and mortgage and to thereafter make the payments. The note and mortgage were delivered on July 1, 1977, but the payments provided for ■ therein were never made because Price and Sedam undertook a rescission of the contract when they found the warranty deed could not be recorded.
In essence, then, the sellers are forced into the position of contending that the executory contract of sale did not obligate them to deliver a recordable deed — only a warranty deed warranting the title in the grantors and, as between grantors and grantees, conveying fee title to the grantees. This obligation — say the sellers — was fulfilled.
The purchasers — on the other hand — urge that it was the sellers’ obligation to furnish — not just a warranty deed — but also a title insurance policy showing merchantable title in the sellers, subject only to contract exceptions. Purchasers also contend that the sellers were to furnish a title insurance commitment to later issue a policy showing fee title in the buyers. These obligations— contend the buyers — were not discharged by the sellers and therefore the contract should be rescinded and their moneys returned. The buyers were successful in urging this position before the trial court.
Based upon the facts recited above, this much can be concluded:
Had the sellers complied with their contractual obligation to furnish a title insurance policy showing “merchantable fee title” in themselves, subject to the contract of sale exceptions (contract Paragraph 8 requirement), the second obligation, which was to furnish a title insurance company’s commitment evidencing a willingness to issue a title insurance policy showing fee title in the buyers would have been dischargea-ble without problem or incident.
The reason is that a title insurance policy showing “merchantable fee title in SELLER” carries with it the certification that the seller’s deed is recordable — otherwise it could not be regarded as a “merchantable fee title.” It was the unrecordability of the sellers’ deed that prevented the title insurance company from issuing a title insurance policy showing merchantable fee title in the sellers and its ultimate commitment to issue an insurance policy showing title in the buyers.
We conclude, as did the trial court, that the breach which precluded the fulfillment of the executory contract for the sale of the property in question here, was the Bakkens’ failure to provide the purchasers — Price and Sedam — with the policy showing “merchantable fee title in SELLER.” (Emphasis supplied.)3
[1226]*1226An unrecordable warranty deed is not what the bargain calls for. A title insurance commitment showing title in the purchasers, predicated upon “merchantable fee title in SELLER,” is what the contract calls for and the sellers did not discharge this obligation because their warranty deed was not recordable.
THE LAW
The Sellers Breached the Contract
In a recent case before the appellate division of the Superior Court of New Jersey, the contract was to deliver a marketable title and “one that will be insurable by a recognized title company.” The court held the parties to their agreement. Mackenzie v. McLean, 20 N.J.Super. 517, 90 A.2d 515, 516 (1952). In Laba v. Carey, 29 N.Y.2d 302, 327 N.Y.S.2d 613, 617, 277 N.E.2d 641, 644 (1971), the court of appeals recognized that when a seller contracts to deliver a title approved by a responsible title company, “he breaches the contract when the title company refuses to insure title unconditionally and without exception.”
In Korb v. Spray Beach Hotel Co., 24 N.J.Super. 151, 93 A.2d 578, 580, 581 (1952), the appellate division of the superior court adopted in part the decision of the trial division, in which it had been said:
“ ‘Contracts whose performance is conditioned on the approval of third parties are not unusual. 57 A.L.R. 1322 recognizes the principle that a contract may properly contain a provision in effect obligating the vendor to convey such a title as a designated title insurance company will approve and insure.
* * * * * *
“ ‘Since the vendor breached the covenant pertaining to the delivery of such goods and merchantable title as would be insured by the designated title company, it was the right of the vendee to promptly repudiate the contract. This he did, thereby entitling him to the return of his deposit, together with interest from the date of closing as well as the title search fees.’ ”
As was said in Royce v. Rymkevitch, 29 A.D. 1029, 289 N.Y.S.2d 598, 602 (S.C.A.C. 1968), where the agreement was that title insurance would be delivered by the seller to buyer:
“. . . If a vendor of realty agrees to furnish title insurance to the purchaser, he must do so; otherwise the purchaser need not take title . . . .”
To the same effect is Drake v. Gaffney, 183 A.D. 577, 171 N.Y.S. 131, 132 (1918), affirmed without opinion, 228 N.Y. 596, 127 N.E. 911 (1920).
Executory vs. Executed Contract
Had the parties relied upon their rights under the contract before delivery of the instruments called for by the agreement, we would have been able to agree with the trial court’s conclusion that the purchasers had the right to rescind the executory agreement and recover their down payment because of the breach committed by the sellers.
Encyclopedia authority for this proposition is expressed in 92 C.J.S. Vendor & Purchaser § 552(2)(a), pp. 556-560, where the text says:
“Where the purchaser under an execu-tory contract for the sale and purchase of land rightfully rescinds the contract for defects in the vendor’s title, or a want of good title in the vendor, as discussed supra § 161, he may maintain an action for the recovery of payments made by him on the purchase price, and it has been held that he may recover such payments, regardless of whether or not he knew of the defect before entering into the contract. Thus, the purchaser may maintain such an action where the title is subject to a reservation or restrictions, such as building restrictions against the property, or restrictions as to the use to which the premises may be put; or where the ven[1227]*1227dor is unable to convey a title such as will be guaranteed or insured by a title company, as required by the contract, .
“In general, if at the time fixed for performance the vendor is unable to furnish a good title, the purchaser may maintain an action to recover amounts paid on the purchase price. . . .” (Emphasis supplied.)
In the same vein, we have said in Mader v. James, Wyo., 546 P.2d 190, 193 (1976): “. . .A written contract for the
sale [of real property], while still executo-ry, may be rescinded by . acts and conduct constituting abandonment of the written bargain. . . .”
In the case at hand, the parties, indeed, undertook to act and conduct themselves in a way which was inconsistent with the terms of the buy-and-sell agreement. They clearly did not continue to rely upon their rights under the contract. After the sellers had failed to discharge their duty to furnish a title insurance policy showing merchantable title in them, and when the sellers were unable to bring about the issuing of a title insurance policy showing title in the buyers, once the deed had been recorded, the buyers, instead of relying upon the breach and urging rescission, accepted the delivery of the warranty deed, and, in exchange, delivered their note and mortgage to the sellers.
What is the effect of the making and delivery of the deed upon the purchasers’ right to rescind?
Once the deed was executed and delivered, the executory contract became executed. In 8A Thompson on Real Property, 1963 Replacement, § 4441, at p. 250, the following language appears:
“An executory contract of sale becomes executed when the deed is itself completely executed and title passes. . .”
In the same paragraph, the writer says:
“. . .A contract to sell is an exec-utory contract until a conveyance is made.” (Citing Bauer v. Monroe, 117 Mont. 306, 158 P.2d 485 (1945).4
Since a contract is no longer executory but is executed upon making and delivering the deed, it is the further appropriate rule of law that, thereafter, the provisions of the contract are merged into the deed and it is the deed that controls the rights and obligations of the parties.
In 8A Thompson on Real Property, supra, § 4458, p. 331, this language appears:
“In accordance with contract law generally, all provisions in the contract are merged into the deed when executed and delivered except those covenants which are deemed to be collateral to the sale. Thus, the deed regulates the rights and liabilities of the parties. . . . ” (Footnotes omitted.)
Purchasers’ Relief:
In Fellows v. Evans, 33 Or. 30, 53 P. 491, 492 (1898), the court spoke of the executed contract of sale of real estate where there was a failure of title:
“. . . [T]he law is well settled that, in the absence of fraud, an executed sale of real estate will not be rescinded for that cause, but in such case the purchaser must look for protection to the covenants of the deed. . . .”
It is said in 91 C.J.S. Vendor & Purchaser, § 161(b), Executed Contracts, p. 1122:
“Where the purchaser enters into possession
In Decker v. Schulze, 11 Wash. 47, 39 P. 261, 263 (1895), the court held that, after a conveyance, a purchaser has no remedy except
“ ‘. . . upon the convenants he has obtained, although evicted for want of title; and, however fatal the defect of title may be, if there is no fraudulent concealment on the part of the seller, the purchaser’s only remedy is under the covenants,’ 1 Sugd. Vend. p. 383; . . .”
See, also, Annotation — Vendee in Possession — Rescission, Breach of covenant as ground for affirmative relief, 50 A.L.R. 180, 185, together with citations, where it is said:
“It is a general rule that, in the absence of fraud, insolvency, or nonresi-dence of the vendor, a vendee, in the peaceable possession [See, fn. 5, supra] of land under and by virtue of a valid conveyance containing covenants of title and general warranty, is not entitled to a rescission of the contract, or a return of the purchase money or any part thereof, on the ground of a defect in the title of his vendor, although the vendee had no knowledge thereof at the time he accepted the conveyance and paid the purchase price.”
An annotation in 65 A.L.R. 1142 upon the same subject is to the same effect.
As the rule is stated in 20 Am.Jur.2d, Covenants, Conditions, and Restrictions § 111, p. 668,
“[a] court of equity will not ordinarily interfere to grant relief merely because of a breach of a covenant of title in a conveyance of land, and generally, in the absence of fraud or some other facts rendering the remedy at law inadequate, a purchaser who accepts a conveyance with covenants of title is required to enforce claims based upon breaches of those covenants by an action at law for damages, upon the familiar principle that the jurisdiction of equity cannot be invoked by one who has adequate remedy at law for redress of his wrongs. . . . ”
In Jolley v. Idaho Securities, Inc., 99 Idaho 373, 414 P.2d 879 (1966), rescission of the entire deal was specifically sought and denied, the court saying that “[t]he record fails to sustain the contention that appel[1229]*1229lants were entitled to rescission of the exchange of deeds.” Petition for rehearing was then denied with this statement:
“The trial court by its findings of fact, conclusions of law and decree, in addition to denying appellants’ claim for rescission of the contract on the asserted grounds of misrepresentation, also found and concluded that the agreement was executed by acceptance and recording of the deed. Under such circumstances where the deed had been delivered and the vendee is in possession, in the absence of fraud or misrepresentation, the purchaser is relegated to this action for damages for defects in the vendor’s title. . . . ”
414 P.2d at 891.
We are aware that the deed in the case at Bar has not been recorded, but this court has held that recording of the deed is not necessary to the transfer of title. As was said in Whalon v. North Platte Canal & Colonization Co., 11 Wyo. 313, 71 P. 995, 999 (1903):
“With hardly an exception, under similar statutes it is held that neither an acknowledgement of a deed nor its recording are essential to pass the legal title as between the parties to the instrument. . . . ”
The rule was reiterated in North American Uranium, Inc. v. Johnston, 77 Wyo. 332, 316 P.2d 325, 328 (1957).
The rights and obligations of the parties having merged in the warranty deed, the purchasers’ relief being in damages for breach of warranty rather than rescission, the statutory provisions relating to the covenants of the deed become pertinent.
Section 34-2-103, W.S.1977, provides:
“Every deed in substance in the above form [§ 34-2-102] [6], when otherwise duly executed, shall be deemed and held a conveyance in fee simple, to the grantee, his heirs and assigns, with covenants on the part of the grantor, (a) that at the time of the making and delivery of such deed he was lawfully seized of an indefeasible estate in fee simple in and to the premises therein described, and had good right and power to convey the same; (b) that the same were then free from all incumbrances; and (c) that he warrants to the grantee, his heirs and assigns, the quiet and peaceful possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same. And such covenants shall be obligatory upon the grantor, his heirs and personal representatives, as fully, and with like effect as if written at length in such deed.”
According to the present state of the record, we are not, at this time, able to answer the question of whether or not there has been a breach of the warranty deed with its covenants as contemplated by the statute.
The County Clerk, by affidavit, states that she refused to record the warranty deed because it constituted an illegal subdivision of properties owned by the grantors. By virtue of a letter attached to her affidavit as an exhibit, it appears that she relied upon the provisions of Ch. 176, § 18-289.19, S.L. of Wyoming 1975, which are now found in § 18-5-310, W.S.1977, which provides:
“The county clerk of each county shall not accept, file or record in the official records of the county any deed of conveyance or any contract or agreement to convey any land subject to this article until a subdivision permit has been issued by the board.”
In her affidavit, the County Clerk also stated that she relied upon advice from the County Assessor with respect to recordability of deeds. The County Assessor, in his [1230]*1230affidavit, alludes to § 34-12-102, W.S.1977, setting forth the duty to file a plat with respect to any tract or parcel of land which has been subdivided into three or more parts.7 That statute reflects that “[t]he duty to file for record a plat, as provided herein . . ., shall attach as a covenant of warranty, in all conveyances of any part or parcel of such subdivisions by the original owners or proprietors, against any and all assessments, costs and damages, paid, lost or incurred by any grantee, or person claiming under him, in consequence of the omission on the part of said owner or proprietors to file such plat.”
If there be violations of the warranties in the warranty deed, it is necessary for there to be a factual determination as to which of these statutory provisions, in fact, were invoked or should have been invoked. Arguably, invocation of the latter provision might not lead to a finding of a violation of the statute. Depending upon the actual facts of ownership, the former provision may not have been a valid basis for refusing to record the deed. Depending upon the factual resolutions, however, the district court would find either that there was a breach of the warranties or that there was not. If there were no breach, this finding would amount to a disposition of the case.
If a breach of the warranties in the deed were found, then rescission is not an available remedy in this instance because it is possible to accomplish the subdivision plat and thereby make the deed recordable. Volume 8A, Thompson on Real Property, § 4487, at page 535, says:
“. . .In the absence of fraud, an executed sale of real estate will not be rescinded for failure of title, but the purchaser’s remedy then is an action on the covenants of the deed. . . ”
See, also, Kimball v. West, 15 Wall. 377, 82 U.S. 377, 21 L.Ed. 95 (1872); Refeld v. Woodfolk, 22 How. 318, 63 U.S. 318, 16 L.Ed. 370 (1859); and Andrus v. St. Louis Smelting and Refining Company, 130 U.S. 643, 9 S.Ct. 645, 32 L.Ed. 1054 (1889).
We reverse and remand for further proceedings not inconsistent with the directives of this opinion.
5. In this case, the buyers have represented that they never were in possession of the purchased tract. However, as was said in Baehr v. Penn-O-Tex Oil Corporation, 258 Minn. 533, 104 N.W.2d 661, 664 (1960):
“ ‘Possession’ is a chameleon-like term which takes its meaning from its context both in common speech and in legal terminology. The term is used interchangeably to denote the legal concepts of ‘actual posses[1228]*1228sion’ and ‘constructive possession.’ With reference to land, the legal concept of ‘actual possession’ is substantially the same as ‘actual occupancy,’ which means physical presence upon and control of the premises. ‘Constructive possession’ is more difficult to define. It is usually said to mean the legal right to possession which follows from title without actual possession.”
In Kouri v. Burnett, Okl., 415 P.2d 963, 968 (1966), the Oklahoma court quotes from Cox v. Sarkeys, Okl., 304 P.2d 979, 983 (1956), which in turn quoted from the official syllabus in Cox v. Kelley, Okl., 295 P.2d 1061, 1062 (1956):
“ ‘What constitutes "possession” of land is a mixed question of law and fact; “actual possession” consisting of the exercise of acts of dominion over it, in making the ordinary use of it and taking the ordinary profits it is capable of yielding in its present state.’ ” In the matter before us, there was no showing that buyers were in any way prevented from doing what they wanted with the land, nor has there been any showing as to acts of possession. In Reuter v. Lawe, 86 Wis. 106, 56 N.W. 472, 473 (1893), the action was one to rescind a warranty deed. The plaintiff had taken no actual possession of the land, “though there appears to have been nothing to prevent his taking possession if he chose.” The court continued:
"The element of fraud being entirely eliminated from the transaction, there can be no rescission, even though the title failed, because the contract had been executed by delivery of the deed and payment of the purchase money, and there was nothing to prevent the plaintiff from taking possession . Under such circumstances, the plaintiff’s remedy is by action on the covenants of the deed.” (Emphasis supplied.)