Appellants insist that they were entitled to have a judgment for the land itself, and that it was error to award a foreclosure of the vendor's lien. The defendant pleaded the statutes of four years' limitation; and the *Page 38 plaintiffs in their supplemental petition, paragraph 9, withdrew the alternative plea of their petition to have foreclosure of the vendor's lien. The defendant afterwards, by consent of the court, withdrew and abandoned the plea of limitation. The court did not, we think, err in this respect. When the purchaser has made default in the payment of the purchase price of land, the vendor has the election of suing on the note and to foreclose his lien, or to sue for the land itself. Branch v. Taylor, 40 Tex. Civ. App. 248, 89 S.W. 813.
And it has been decided that suing to foreclose a vendor's lien is not such an election of remedy as prevents the vendor from amending his petition and asking for a recovery of the land. Cattle Pasture Co. v. Boon, 73 Tex. 548, 11 S.W. 544. It is not, therefore, necessary to the vendor's right to recover the land that the vendee first plead the statute of limitation to the purchase-money note. It is merely inequitable to allow the purchaser to have the land and not pay for it, and that is the only force of a plea of limitation against the purchase-money note. Consequently the appellee's plea of limitation against the note may, by consent of the court, as was done here, be by him withdrawn and abandoned; and such withdrawal and abandonment would not work, it is believed, any injury to the legal rights of the appellants. And the appellants may not predicate the right to recover the land, for a court of equity may not enforce the right on the part of the vendor to rescind and recover the land, if there be pleading and facts, as here, which make it inequitable so to do. In this case, the appellee pleaded payment of the purchase-money note, and —
"prays the court to find that said note has been long since paid off and discharged; but if there be anything remaining on said note after allowing all of the credits to which this defendant is entitled, and which may be shown by the testimony, that this defendant is ready and willing to pay the plaintiffs whatever amount may be found by the court to be due to them, if any."
And while there was testimony on appellants' part, going to show an agreement supporting his answer of payment in kind of the note, the appellee denied such agreement and the jury found against the defendant's contention. Thus the appellee's act of default in the payment of the note, occasioned by his understanding respecting an agreement of payment, was not inconsistent with an intention on his part to be further bound by the terms of the sale of the land. And the trial court decided that under such circumstances the contract of sale may not be treated as rescinded and the appellee deprived of the land, but that the appellants may have the remedy of foreclosure and sale of the land if the appellee did not pay off his land note. Therefore the judgment of foreclosure could properly be referred, we think, to the pleading of and the facts offered by appellee in respect to the cause of the default of payment of the notes. It is sufficient to support the judgment of foreclosure.
We have considered all the assignments of error presented by the appellants, and think they should be overruled.
The appellee filed cross-assignments of error, which we have considered, and conclude that reversible error is not presented, and overrule them.
The judgment is affirmed.