part of the defendant’s answer to which exceptions were sustained must be taken as true, for the purposes of the exceptions and the action of the court on them.
A purchaser of land, under an executory agreement, will not be compelled to accept a doubtful title and pay the purchase-money, unless he has agreed to take such a title as the vendor has, or to take the title at his own risk, with a knowledge of the defects. (7 Tex., 244.)
A purchaser who has gone into possession under a deed with warranty, without any notice of a defect in the title, may resist the payment of the purchase-money, by showing his title to be worthless and the existence of a superior outstanding title, by actual ouster, or, what is tantamount to the same, an indisputable superior outstanding title, and that he is liable to be evicted. (20 Tex., 178; 5 Watts & Serg., 58; 9 Barr, 37.)
He must return the possession of the premises and deed for cancellation, (21 Tex., 497; 19 Tex., 267,) upon the equitable ground of fraud or mistake, evidencing the fact that the transaction does not remain the same as it was understood to be at the time of the purchase, and also to prevent circuity of action.
But when the purchaser goes into possession under a *268deed of warranty, and with notice of the defects in the title, there are no equitable grounds upon which he can withhold the purchase-money for failure of the title, for the transaction still remains as the vendee understood it to he at the date of the purchase, and he will be forced to await eviction, and then rely upon the covenants in his warranty for the damages arising from the breach of the same.
In this case the defendants belowpurchasedwith a general warranty deed, and went into possession with notice of the alleged defect of the title to the three hundred and twenty acre tract, and has not yet been evicted; and if this were all in the answer excepted to the defense would clearly not be sufficient. There is an averment in the answer to this effect: the vendee of the two tracts, Martin F. Demaret, refused to accept the general warranty deed from his vendors, Thomas 0. Bradbury and wife, until he executed a written agreement, obligating himself to procure the title to the J. Sharpe three hundred and twenty acre survey, and convey it to him within a reasonable time, and in the event he should fail to perfect the title as aforesaid, then “the estimated value of the said Sharpe tract, as assessed by good men,” was to be allowed as a credit upon the note sued upon; that Bradbury failed to comply with this agreement; that the title is not in him, “but still remains, so far as is known to defendants, in said Sharpe;” that 'the defendant, Martin F. Demaret, relied upon this agreement, and made valuable improvements upon the northwest side thereof, and proposes to retain fifty acres on that part including his improvements, but to re-convey to Bradbury and wife the residue of the three hundred and twenty acre tract, (two hundred and seventy acres,) and tenders a deed accordingly.
Whether this additional agreement, entered into by Bradbury, will take the case out of the general rule, as before defined, appears not to be entirely free of difficulty. The *269doctrine appears to he well settled, that when the title to the most material part of a purchase fails, the vendee has the option to cancel the whole contract, or he may take the part with a perfect title, and cancel or ask compensation for the residue.
But this equitable doctrine is believed to rest upon the ground of fraud or mistake in the contract, and it will not permit the vendor to profit by his fraud or mistake, hut will aid the vendee to enforce the contract as far as it can be done, and give compensation for the residue, when capable of a division in this way.
We believe this equitable ground of relief cannot be invoked by a vendee who has purchased with notice of the defect in the title, and gone into possession under a warranty deed, and nothing shown, like insolvency of the vendor or non-residence from the State, from which it may be inferred that the ordinary legal remedy on the covenants in the agreement are not ample and complete to protect him under the contract. He cannot ask relief upon any of the known grounds of equity, such as fraud, accident, or mistake, and he will be compelled to rely upon his legal rights under the contract; and, if he desire to cancel the agreement, he will have to do so as an entirety; and a proposition to divide the tract, retain a part, and recover the residue, if not in accordance with the terms of the agreement, could not be sustained. Therefore we conclude, that the proposition of the defendant below, to cancel the title papers to two hundred and seventy acres of the three hundred and twenty acre tract, cannot he entertained. The whole of the three hundred and twenty acres must be given up, and the value credited on the note, according to the terms of the agreement, or none of it. This proposition is, in effect, making a new contract for the parties, and forcing Bradbury, to sell fifty acres instead of the whole, which he, perhaps, would not have agreed to at first; and there is no equitable *270grounds to grant such relief, as before defined. (10 Vesey, 294.)
There are other defects to the defendant’s answer, part of which, perhaps, can only be reached by special exception. It does not set forth the whole contract and describe both tracts of land, or the value of either of them, nor the value of the fifty acres he proposes to keep, or of the part (two hundred and seventy acres) which he proposes to re-convey to Bradbury and wife; nor is there any positive averment that there is an indisputable title to J. Sharpe; nor does it set forth the defects in the title. He may have the equitable title to the three hundred and twenty acre tract sufficient to protect him against the legal title of Sharpe, and there may not be the least danger of an eviction. (20 Tex., 600; Rawle on Cov., 712, note 1; 16 Serg. & R., 258, 261; 11 Serg. & R., 158.)
There is another difficulty in the way of the proposed defense. The vendee proposes to cancel the title to two hundred and seventy acres of the three hundred and twenty, and re-convey it to Bradbury and wife, and to make it final, without making them parties to the suit and without being heard.
It was the defendant’s duty to bring them before the court if they desired a decree affecting their interest so materially, and then the rights of all concerned might have been settled in one decree.
We think the court did not err in refusing to grant the continuance asked for by the defendant below. He showed no sufficient diligence in preparing his cause, and the ruling of the court upon the exceptions to the answer being correct can afford no legal grounds of surprise to the defendant.
It appearing that the court did not err in sustaining exceptions to the defendant’s answer, the judgment is
Affirmed.