It is evident the court below must have regarded this action as, in effect, a suit for the rescission of a contract for the sale of land. And if such was its real character, the parties would have been entitled, on their proper presentation by their pleadings, to have had an adjustment of their respective equities, so as to do complete justice between them in respect to the contract sought to be rescinded, and all matters connected with and growing out of it. (Terrill v. DeWitt, 20 Tex., 256; Thomas v. Beaton, 25 Tex. Supp., 321; Harris v. Catlin, 37 Tex., 581.)
But if such was the nature of this case, the judgment in *437favor of appellee, for interest on the amount of purchase-money, on the bare averments of his amended answer and the facts developed on the trial, appears to be unwarranted. “ Where the purchase-money is paid,” says Hemphill, Ch. J., in the case of Patrick v. Roach, 21 Tex., 251, “and there has been no manifest injustice or fraud by either party, and the vendor is unable to make title, the rule is to restore the land to the vendor without profits, and the purchase-money to the vendee without interest.” And, certainly, a more liberal rule in favor of the vendee cannot be invoked, when the vendor is not in default, but the rescission results solely from the vendee’s failing to pay the purchase-money as he contracted and bound himself to do.
But obviously this action as brought by appellant cannot be properly treated or regarded as an action for the rescission of a contract for the sale of land. On the contrary, it is strictly an action of trespass to try title and recover possession of the land, based no doubt upon the plaintiff’s supposed right to abandon the contract because of appellee’s failure to comply with its terms and stipulations. Whether the facts are such as entitle him to maintain the action as thus brought, need not be now considered. Appellee, by his amended answer and the evidence adduced on the trial, seems to have virtually admitted that there had been such default on his part as would warrant a rescission of the contract; and evidently the court so regarded it. There is nothing in the record, however, to justify or call for the rescission of the contract, unless it is appellee’s failure to pay the purchase-money in accordance with the stipulations of the contract. Such being the fact, the court erred in treating the case as a suit for rescission; for evidently appellee could not have brought an independent action for the rescission of the contract on the ground of his mere failure, or even inability, to pay the" purchase-money as he had undertaken. Mor can we see that the fact of appellant’s abandoning the contract, and blunging an action for the recovery of land upon his superior legal *438title, of itself merely, warrants his claiming all the equities which he might if .appellant was invoking the aid of a court of equity, instead of seeking to enforce a mere legal title. Where time is not of the essence of the contract, or when there has been no repudiation of it by the vendee, though there may have been such a default as entitles the vendor to treat the contract as abandoned, the vendee may unquestionably present equitable excuses for his negligence or default; and if he will still pay the purchase-money, a conveyance may, and generally no doubt will, be decreed. And unquestionably there may be cases even where the vendee fails to pay the balance of the purchase-money, the court may still relieve him from the forfeiture of the part previously paid; but where this is done, the special facts warranting it must be exhibited by him. We know of no case, however, in which it has been held, where there has been a default in the completion of payment of the purchase-money, and the facts' are Siich as warrant the vendor in suing for the land, that this mere fact alone will warrant the vendee in claiming the repayment of such part of it as he may have paid. To so hold, would be to make one’s own default a ground for his equitable relief.
That the vendor, when the vendee is in default, may sue for the land, has been settled in this State by a long train of decisions, the substance and effect of which are believed to be clearly, though briefly, stated by the present chief justice in the case of Wilkins v. Emerson, 20 Tex., 706, as follows, viz.: “The true position on that subject is, that the failure to pay the purchase-money when due, gave Emerson the alternative option to sue on the note and subject the land and other property to its payment, or to bring suit for the land by which he could have ejected Izard from it, unless, perhaps, Izard should bring the money into court and cláim a specific performance of the contract, not having repudiated it otherwise than by failure in point of time of payment. (Estes v. Browning, 11 Tex., 246; Hill v. Still, 19 *439Tex., 76; 2 Story’s Eq. Jur., sec. 775, et seq.) The failure to pay the purchase-money did not of itself annul the contract, but gave Emerson, with certain equitable contingencies, the right to do so.”
The judgment is reversed and the case remanded.
Reversed and remanded.