delivered the opinion of the court.
The question presented for our determination is whether, under the facts as presented by the record in this case, the *537appellee is entitled to maintain this action; in other words, whether the appellant, the Florence Oil & Refining Company, being in possession and enjoyment of the land in controversy, can continue therein and refuse to pay the balance of the purchase price because of the incumbrance caused by the existence of the judgment lien, and because of the platting and laying out of a portion in town lots, and the alleged dedication of a part to the public use as a street and alley. It will be conceded that a vendee who purchases land under a contract entitling him to receive an unincumbered title is not bound to take one that is doubtful or defective. ' In other words, he is entitled to have that for which he contracts before he can be compelled to part with the consideration he agreed to pay. But, notwithstanding this general rule, there are many cases, owing to special circumstances, where although the vendor may be unable to convey all the land bargained for, and the part that he cannot convey is of small importance, or is immaterial to the purposes and enjoyment of that which he can convey, and the purchaser retains possession, he may insist on performance, with a proportionate abatement from the agreed price. Chancellor Kent states this exception to the general rule as follows:
“ In many cases, however, where the title proves defective in part, or to an extent not very essential, specific performance will be decreed, with a ratable deduction of the purchase money, by way of compensation for the deficiency.” 2 Kent’s Com. 475.
Furthermore, if by reason of a substantial defect in the title, the vendor is unable to carry out the contract on his part, it by no means follows that a vendee who has acquired possession thereunder can retain such possession, refuse to accept a conveyance, and arbitrarily refuse any performance on his part. He may elect to accept the title as it is, with such a reduction of the purchase price as will compensate him for the deficiency (Pomeroy on Contracts, Specific Performance, § 438 and cases cited), or rescind the contract. If he elects to rescind, he must offer to restore possession upon *538the repayment to him of the money advanced, with interest, and the value of such improvements as he has placed on the premises, less the sum he has derived from their use and enjoyment. In such case, unless the amount he is entitled to recover be paid, or secured to his satisfaction, he may retain possession until this is done. McIndoe v. Morman, 26 Wis. 588; Taft v. Kessel, 16 Wis. 291; Foley v. Crow, 37 Md. 51; Davison v. Perrine, 22 N. J. Eq. 87; Wiley v. Howard, 15 Ind. 169; Stoddart v. Smith, 5 Binney, 355; Woodman v. Freeman, 25 Me. 531.
It is clear, therefore, that in the circumstances of this case, the appellee was entitled to avail himself of the remedy afforded by this action. The objection based upon the judgment lien was obviated by the deposit in court.of a sufficient sum to remove that incumbrance, in case the judgment was affirmed by the court of appeals.
Regarding the further objection, predicated upon the alleged dedication of a portion of the land to the use of the public for a street and alley, if such dedication was in fact made, and was not acquiesced in by the company as claimed by appellee, it could not in its very nature affect the use and enjoyment by the company of the residue of the land.. It at most deprived it of the use of the surface of a small and inconsiderable part of the land sold, and had appellants seen fit to amend their answer, as suggested by-the court, and introduce proof of the damages occasioned thereby, they would have been allowed a proportionate reduction of the purchase price. But, having declined to do so, the court below could not, under the issues joined and the evidence introduced, render any other judgment than it did. The judgment, therefore, must be-affirmed, which is accordingly done.
Affirmed.