The Court of Civil Appeals for the Fourth Supreme Judicial District has certified the following question for our determination: *Page 357 "The above styled suit, now pending in this court, was instituted by appellees as executors of the estate of L.E. Griffith, deceased, against appellant and A.J. Murphy, to recover sixty acres of land off the I.G. Parker survey in Nacogdoches County. The land was a part of a 425-acre survey set apart to Cicero Rusk in a partition of the estate of T.J. Rusk. Cicero Rusk was killed in 1864 in battle, and afterwards administration was had on his estate. In July, 1869, under order of the probate court, William Clark, administrator de bonis non of the estate of Cicero Rusk, sold the 425 acres of land to W.H. Harris for $2050, and a deed to the land was executed on November 10, 1869, and on same day W.H. Harris executed a note to the administrator for $2050, with personal security, payable in twelve months, and at the same time executed a mortgage on the land to secure the purchase money. March 4, 1871, William Clark, the administrator, recovered judgment in the District Court of Nacogdoches County, on said note, in the sum of $2171.88 and a foreclosure of the lien. On the 3d day of May, 1871, an order of sale was issued from said judgment, followed by a venditioni exponas, and a part of the land, said 425 acres, was sold in blocks; block No. 1 to J.B. Harris for $2.50; blocks 2, 3, 4, 5, 6, and 7 were sold to C.M. Raguet, block 5 for $50, the others at $100 each, total amount for all blocks sold, $552.50. Number of acres sold, 247.80 acres. All the land purchased by C.M. Raguet, except 100 acres, was in trust for W.H. Harris, and on the 2d of April, 1878, he made a deed to all he purchased, except the 100 acres, to S.J. Griffith, wife of L.E. Griffith, plaintiff's testator. In October, 1872, W.H. Harris and wife, E.N. Harris were living on a portion of said 425-acre block and they — W.H. Harris acting through his attorney in fact, J.B. Harris, — sold the same to S.J. Griffith, wife of plaintiff's testator, L.E. Griffith. The portion of land so sold by them is claimed by plaintiffs to embrace the 60 acres sued for (being a part of the original tract not sold by the administrator). S.J. Griffith died 27th of May, 1887. She made her will on the 15th of April, 1887. Her interest in this 425-acre tract was bequeathed to her husband, L.E. Griffith.
"Defendant R.J. Gardener was in possession of the land sued for at the institution of the suit, holding the same as guardian of his wife's children by a former husband and under powers of attorney from John C. Rusk, T.J. Rusk, and C. Rusk, all of whom are heirs of Cicero Rusk, deceased. The record is silent as to any other payment having been made for the 425 acres sold by William Clark, administrator of Cicero Rusk's estate, to W.H. Harris than the $552.50 paid at the sale by J.B. Harris and C.M. Raguet to the sheriff under the order of sale, and is silent as to a sale of any other portion of the 425 acres under said judgment. The administrator, William Clark, died in 1884 or 1885. Since his death, no other administrator has been appointed on said estate and nothing more has been done with same, and all the property, real and personal, belonging to said estate had been sold by said Clark and previous administrators thereof. It is uncontroverted that all of *Page 358 the purchase money has never been paid. It is the contention of appellees, which was sustained by the District Court, that when the administrator of the estate of Cicero Rusk sued on the debt and obtained a foreclosure of the mortgage, he thereby affirmed the contract of sale and the legal title to the land was transferred to W.H. Harris, the vendee of the land, while it is the contention of appellant that the legal title to the land not sold under the order of sale is still in the heirs of Cicero Rusk. The question of limitation does not arise in the case.
"Question. Did the foreclosure of the mortgage lien and the sale of a portion of the land deprive the heirs of Cicero Rusk of the legal title to the land not sold?
"This question is asked in view of the decisions in the cases of Roeder v. Robson, 20 Tex. 754; Roberts Heirs v. Lovejoy,60 Tex. 255; Bartley v. Harris, 70 Tex. 181 [70 Tex. 181], and the decision in Thompson v. Robinson, 54 Southwestern Reporter, 243 (ante, p. 165), recently decided by the Supreme Court."
When, under an executory contract of sale of land, the vendee has made default, the vendor has an election to sue for the land or for the purchase money; and the general rule is that by electing the latter remedy, he deprives himself of the right to claim the land. Such is the rule laid down in the three cases first mentioned by the Court of Civil Appeals in their certificate. It is also the rule announced in the following cases: McPherson v. Johnson, 69 Tex. 484; Summerhill v. Hanner, 72 Tex. 224; Coddington v. Wells, 59 Tex. 49. The rule is, however subject to the modification that if, after suit, the vendee repudiate his liability under the contract, as by pleading the statute of limitation to the debt for the purchase money, the right of election may again revive and the vendor may recover the land. In McPherson v. Johnson, supra, the court say: "But we take this to be the rule: If, after such default as justifies the vendor in rescinding the sale, he proceeds for the price, he loses his right of rescission; provided, the vendee avail himself of his privilege to pay the debt. But the contract still remains executory, and the latter can not, by pleading limitation, defeat the action for the debt, and still claim the land under a contract with which he has refused to comply."
But it is held that where the vendee has sold to another, an attempted foreclosure of the vendor's lien in a suit to which the subsequent purchaser has not been made a party, does not have the effect to affirm the sale as a finality, or to invest such subsequent purchaser with a perfect title, either legal or equitable, to the premises. Ufford v. Wells, 52 Tex. 612; Foster v. Powers, 64 Tex. 247; Stone Land and Cattle Co. v. Boon, 73 Tex. 549. So, in the case last referred to by the Court of Civil Appeals (Thompson v. Robinson, ante, p. 165), it was determined that the position of a subsequent vendee of land sold under an executory contract was not bettered by a foreclosure and sale for the purchase money, he not having been a party to the suit in which the foreclosure was decreed. Since the decree did not estop the *Page 359 subsequent vendee, it did not estop the vendor as to him, and the sole effect of the foreclosure and sale was to place the purchaser at that sale in the shoes of the vendor. These were the grounds upon which that decision was placed, and we think they clearly distinguish it from other cases in this court in which it was held that the vendor was estopped from claiming the land by a suit to recover the purchase money.
We see nothing in the case shown by the certificate to take it out of the general rule. On the contrary, it is a very strong case for its application. The administrator of their ancestor not only obtained a decree of foreclosure upon the entire tract of land, but also sold about one-half of it under the decree. There was no subvendee in the case; so that all who were interested in the land were barred by the judgment. We apprehend that if the vendor rescinds, he must rescind as a whole, and that after causing a sale of a part of a tract under a foreclosure, he can not claim a rescission as to the remainder.
We are also of opinion that when, as in this case, a deed has been made which of itself would convey the legal title, and where a mortgage has been taken at the same time to secure the payment of the purchase money, and when the grantor has finally lost the right to claim a rescission of the contract, the legal title vests in the grantee. We therefore answer the question in the affirmative.