On Motions for Rehearing.
Appellee H. D. Jones presents an argument in his motion for rehearing to the effect that appellant Mrs. H. V. Dittoe should perform by executing deed to her undivided one-half interest in the property because the notes which she was to receive from ap-pellee were to be made “payable on or before” and therefore appellee was at liberty to pay Mrs. Dittoe her one-half of the purchase price in cash upon delivery of the deed.
Granting that appellee had such privilege (such question we need not decide here), it was such a privilege that he alone could have taken advantage of and was not enforceable by appellant Dittoe. Upon the trial of the case he neither plead nor proved that he was ready, able and willing to pay her cash for her one-half interest in the land but on the contrary he insisted upon performing the contract as written; he prayed “ * * * that this court enter judgment ordering this deed to be delivered to the plaintiff upon his executing to the defendant, Mrs. H. V. Dittoe, two notes, as provided for in said contract, in the amount of $11,400.00 each * * * that the defendants herein specifically perform said contract and execute to this plaintiff a deed conveying to the plaintiff their proportionate interest in said property, upon the plaintiff paying to said defendants the consideration for their proportionate interest in said property and executing to Mrs. H. V. Dit-toe, a widow, two notes in the amount of $11,400.00 each, secured by a vendor’s lien and deed of trust lien upon the property * * *»
Upon such theory the court entered judgment, a portion of which is as follows: “The consideration for the purchase of such property to be Forty-five Thousand Six Hundred ($45,600.00) Dollars, one half to be paid in cash and the other half to be evidenced by two promissory vendors lien notes of Eleven Thousand Four Hundred ($11,400.00) Dollars each, payable on or before one and two years after date, with interest at 6% payable semiannually, to Mrs. H. V. Dittoe, the lien to be retained in favor of Mrs. H. V. Dittoe, and a deed of trust on the above described property, given to Mrs. H. V. Dittoe to secure said notes.”
It is noted in the above paragraph that the court ordered appellee herein to execute a deed of trust “on the above described property,” the description referred to being the entire tract of land as set out in paragraph numbered 1 of the judgment. There was no tender of cash consideration made in the trial court by appellee. Appel-lee raises for the first time this question in in his motion for rehearing, which we find comes too late for “it is an established principle of appellate procedure that the parties are restricted to the theory on which the case was tried in the lower court. A corollary of this proposition is that parties may not raise objections or questions that were not presented in the trial court. ‘The law forbids the assumption of an attitude on appeal inconsistent to that taken at the trial, and on appeal litigants are restricted to the theory upon which the cause was prosecuted or defended in the court below.’ ” 3 Tex. Jur. pp. 168-169, sec. 111. See sec. 718, p. 1005, same text.
Appellee also contends this court erred in holding that Mrs. H. V. Dittoe should not be compelled to convey her portion of the land because appellee could not give her secured notes on all of the land; cites as authority Hazzard v. Morrison, 104 Tex. 589, 143 S.W. 142; Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454, 148 A.L.R. 555. We have carefully read these cases but do not find them to be in point here.
We find that it was understood between the parties in the case at bar that Mrs. Dittoe was to have a lien on the entire tract of land; the trial court ordered appel-lee to execute vendor’s lien notes on the entire tract of land; it would not have been feasible for Mrs. Dittoe to have accepted *320notes on her proportionate part, an undivided interest in land, without some cash down payment. This was the reason, no doubt, the contract calls for all of the other tenants in common be paid by cash in full.
In the Norris case, supra, the purchaser tendered the sellers the cash payment set out in the contract and in that case there were no notes to be executed by the purchaser to the grantors. In the Morrison case above, where two parties signed a contract to convey and one of their titles fails, the other person showing good title to his tract of land is compelled by specific performance to convey. We adhere to this rule and so announced in our original, opinion, and if appellee in the instant case were in a position to perform his part of the contract, to-wit, executing a deed of trust to Mrs. Dittoe on the tract of land described, we would so hold here, and whatever right he may have had to pay Mrs. Dittoe cash for her land was not taken advantage of by him in the trial court.
We overrule all motions for rehearing.