This suit was originally brought by the appellee, Mrs. Nancy E. Brawner, against the Brazoria Land & Cattle Company and A. C. Swanson. She alleged in her petition that said company agreed to sell her two tracts of land in Bra-zoria county, one of 200 acres, and one of 160 acres, the latter being the N. W. % of section 30, H. T. & B. R. R. survey, and to deliver to her, within 90 days from the date of said agreement, an abstract of title to the land showing the same to be free from incumbrances and showing a good title in the grantor; that plaintiff at the time of the agreement paid to appellant Swanson, as agent of said company, $1,400 as part of purchase money of the 160 acres, and received a deed to the land, but that defendants breached its said agreement .with her, in *1192that they Aid not and never have furnished to her an abstract of title, and in that the deed executed and delivered to her showed that the land was not free of incumbrance, but that it was incumbered with a lien as security for the payment of $1,280. She prayed that the deeds to both tracts be canceled and held for naught, and for judgment against defendants for $2,400, being the aggregate of the amounts theretofore-paid by her for part of the purchase money for both tracts, and for the establishment of a lien on the land as security therefor, and for foreclosure, and for general relief.
The agreement in reference to the sale was in writing, and attached to the petition as an exhibit. It appears to be a contract between A. C. Swanson & Oo. and Mrs. Brawner, to which the Brazoria Land & Cattle Company is not a party. It is stipulated therein that Mrs. Brawner was to- pay. $20 per acre for the 160 acres, one-fourth in cash and the balance in equal amounts to be paid on or before two and three years after date, with 6 per cent, per annum interest. The deed to this tract, which is also attached to and made a part of the petition, recited a consideration of $3,200 paid and to be paid as follows: $1,400 cash and the assumption of five vendor’s lien notes in favor of the Brazoria Land & Cattle Company, given by Charles Williamson, trustee, for $256 each, bearing 6 per cent, per an-num interest; and five notes in favor of said Williamson, trustee, who executed the deed to Mrs. Brawner for $104 each, also bearing 6 per cent, per annum interest, all of said notes being payable one, two, three, four, and five years after date, and secured by a vendor’s lien on the 160 acres. The ten notes, together with the $1,400 paid in cash, aggregate $3,200, which was the agreed purchase price.
The defendant Swanson answered, pleading, among other matters, that Mrs. Brawn-er had accepted the deed, and that the same called for the payment of only the amount of the purchase money as provided in the agreement, and that the change in the amounts and dates of payment of the purchase money was made at her instance and request. He further pleaded that he was the owner of two of the notes for $104, each given by Mrs. Brawner to Williamson, and by way of reconvention prayed for judgment against Mrs. Brawner for the amount of same. After the filing of this answer, Mrs. Brawner took a nonsuit, and the entire case was dismissed from the docket, but subsequently, on the motion of defendant Swanson, the case made by him on his plea of reconvention was reinstated. Swanson filed his first amended cross-bill in lieu of his original answer and cross-bill, stating that as the plaintiff had dismissed her suit against the Brazoria Land & Cattle Company and defendant Swanson at the September’ term of court, 1911, and as the case was then on trial only upon the cross-bill of the defendant Swanson against the plaintiff, Mrs. Brawner, the defendant filed no answer or defensive pleas and amended as to his cross-bill only, and then proceeded to declare upon the said five $104 notes given by Mrs. Brawner to Chas. E. Williamson as part of the purchase money of said land, all of which were then past due. Mrs. Brawner filed her answer and reply to this amended complaint of defendant Swanson’s, and specially denied that she had delivered to Chas. E. Williamson the notes sued upon by Swanson, and denied that Swanson was the owner of the same, and specially denied that she was indebted to- Swanson in any sum whatever. The fourth and last paragraph of this answer and reply was as follows: “(4) Plaintiff Nancy E. Brawner further and lastly, answering and replying to defendant Swanson’s amended cross-complaint, avers and alleges the facts to be that on the 7th day of October, 1907, said defendant Swanson executed and delivered to plaintiff an agreement in writing by which he agreed to sell to plaintiff 360 acres of land in Brazoria county, Texas, and’ to furnish an abstract thereto for the sum of $20 per acre; that she was to pay and did pay to said Swanson on said land $2,400, $1,400 on the 160 acres mentioned in said agreement, and $1,000 on the 200 acres mentioned in said agreement, a copy 'of said agreement is attached to plaintiff’s original complaint herein, and asked to be made a part of her answer and reply to defendant’s amended cross-complaint." Plaintiff states and alleges that the amount of money of $2,400 paid to said Swanson was paid by her through false representation’ of said Swanson, in that he owned the land contracted and sold to plaintiff, and that the same was free and unincumbered, when and in truth and fact he did not own any of the land, and that the same was heavily incumbered, all of which facts defendant Swanson well knew. Plaintiff further states that said notes mentioned in defendant’s cross-complaint were not only obtained from her by said Swanson through false representation, but that the same were without consideration and are void. Wherefore plaintiff asks that defendant’s cross-complaint be dismissed, and that she have judgment against him for the sum of fourteen hundred dollars ($1400.00), with interest thereon from the 16th day of November, 1907, to the present time, also for all her costs herein paid out and expended.”
The case was tried before a jury, and resulted in a verdict and judgment for Mrs. Brawner against Swanson for $1,400 and interest, and for the return to her of her notps. It appears that no judgment was asked for or entered with reference to the 200-acre tract, or as to the recovery of the purchase money and notes paid or agreed to be paid therefore. Etom this judgment Swanson’ appeals.-
*1193It will be observed that tbe case was tried upon tbe cross-action of tbe defendant Swanson and tbe answer thereto of tbe plaintiff upon wbicb sbe sought judgment for tbe recovery of tbe §1,400 paid by her as part of the-purchase money for the 160-acre tract, and tbe cancellation of tbe notes given by her for the deferred payments therefor. Tbe original cause of action set up in plaintiff’s petition against Swanson and tbe Bra-zoria Land & Cattle Company, in which it may be gathered that sbe sought a recovery of tbe sums paid by her for part of tbe purchase money for both tracts, and for the cancellation of the deeds executed to her, and of tbe notes executed by her for the deferred payments of both tracts, appears to have been abandoned. In her amended petition in answer to Swanson’s cross-bill sbe made no tender of a deed reeonveying tbe land to Swanson, nor was any such deed of conveyance tendered on tbe trial, nor did sbe pray that tbe deed and her notes be canceled. In view of this omission on her part, Swanson at the conclusion of tbe introduction of evidence requested tbe court to instruct tbe jury to return a verdict in his favor. Tbe refusal to give this charge is made tbe basis of appellant’s first assignment of error. Under this assignment, appellant presents tbe proposition that “tbe undisputed evidence in tbe case showing that appellee had received a deed to 160 acres of land and gave tbe notes sued upon as part of tbe purchase money, -and that tbe incumbrance on tbe land was part of tbe purchase money sbe was to pay for it, and was, in- fact, a part of tbe vendor’s lien sbe bad agreed to give upon tbe land to secure -the balance of tbe purchase money, and there being no offer on her part to reconvey the land, and no evidence to show that tbe title to tbe land bad failed in any manner, appellant was entitled to a judgment for tbe amount due on bis notes, and tbe appellee was not entitled to recover anything against him.”
Tbe agreement entered into between Swanson & Oo. and Mrs. Brawner for tbe sale and purchase of tbe land, wbicb was referred to and made a part of Mrs.- Brawner’s answer to Swanson’s cross-bill, describes tbe 160 acres as being tbe N. W. % of section SO, H. T. & B. R. R. survey, while tbe 160 acres actually conveyed to her was tbe N. E. 14 of section SI. However, she does not by her pleadings base her right to recover upon tbe failure of Swanson to convey to her tbe particular tract be agreed to convey, and this part of tbe transaction may be dismissed without further consideration. It appears that at tbe time of making tbe agreement neither Swanson or Swanson & Oo. owned any land on either section 30 or section 31. In fulfillment of his contract, however, Swanson procured the Brazoria Land & Cattle Company, tbe owner, to sell to Charles Williamson tbe N. E. % of section 31, and Williamson, in turn, to convey tbe same to Mrs. Brawner. Williamson in purchasing tbe land from tbe Brazoria Land & Cattle Company executed five promissory notes for §266 each, payable one, two, three, four, and five years from date, aggregating §1,280, all of wbicb were secured by a vendor’s lien on tbe land. Williamson in conveying to Mrs. Brawner recited in tbe deed the cash payment of $1,400, tbe assumption of the- notes for $1,280, and tbe execution of five notes for $104 each, aggregating $520, wbicb were secured by vendor’s ben. Tbe aggregate of all these sums is $3,200, which is tbe amount Mrs. Brawner agreed to pay. Tbe existence of tbe lien secured by the notes aggregating $1,280 wbicb sbe assumed to pay is made the basis of her contention that Swanson violated bis agreement to sell land to her free from incumbrance.
[1] Tbe deed to Mrs. Brawner put in her tbe legal title of tbe N. E. % of section 31. Can sbe retain tbe title and ownership of tbe land, and at the same time recover tbe amount sbe paid in cash, and obtain tbe cancellation of tbe notes given by her for the deferred payments? We answer that sbe cannot It is a well-established principle of equity that in an action to rescind a contract of purchase of land on account of tbe fraud of tbe vendor, and to recover tbe consideration paid therefor, tbe vendee must give back or offer to return whatever of value was received under tbe contract. Bishop on Cont. § 611; 1 Pom. Eq. §§ 385, 386; 2 Pom. Eq. § 910; Pearson v. Cox, 71 Tex. 246, 9 S. W. 124, 18 Am. St. Rep. 740; Williams v. Sapieha, 59 S. W. 948; Putman v. Bromwell, 73 Tex. 465, 11 S. W. 491; Garza v. Scott, 5 Tex. Civ. App. 289, 24 S. W. 89; Wells v. Houston, 23 Tex. Civ. App. 629, 57 S. W. 600.
[2] Mrs. Brawner having elected to retain tbe title, or at least having failed to offer to do equity by the tender of a conveyance of tbe land back to Swanson, was not entitled to a judgment against him for tbe purchase money paid, nor to a cancellation of the notes given by her for tbe deferred payment, and therefore tbe court should have given tbe peremptory charge requested by Swanson. It follows that tbe judgment of tbe court below must be reversed, ánd judgment is here rendered that plaintiff Brawn-er take nothing by her suit and that appellant ISwanson recover of appellee, Mrs. Brawner, judgment for tbe amount of tbe five notes for $104 each, aggregating $520 with 6 per cent, per annum interest thereon from tbe 16th day of November, 1907, and 10 per cent, thereon as attorney’s fees as stipulated in said notes.
Reversed and rendered.