It is objected that tbe judgment in this case proceeds upon an .erroneous basis, and cannot stand; that it gives tbe plaintiff the title to tbe land, and yet deprives tbe vendor of tbe unpaid purchase money. It is insisted that, if tbe plaintiff seeks to rescind the contract on account of fraud practiced upon him by the defendant at tbe time of sale, then be must rescind in tolo, and cannot rescind in part and affirm in part. The complaint demands a judgment for sixty thousand dollars damages sustained in consequence of the fraud and misrepresentations made in regard to the land being rich and valuable *103mineral ground, containing large quantities oí lead ore, etc., and also tbat tbe mortgage and three unpaid promissory notes be released and cancelled. Tbe circuit court beld tbat tbe plaintiff was entitled, in lieu of a judgment for tbe amount of damages, tbat tbe defendant surrender and deliver up these notes and release tbe mortgage of record, retaining, of course, tbe real estate which be bad purchased. It is net claimed by any one that this is an action at' law for fraud and deceit, where tbe recovery is a judgment in form for so many dollars according to tbe proof of tbe amount of damages sustained by the plaintiff. This evidently is not tbe theory of tbe action, and such is not tbe relief granted by tbe judgment. But this is obviously an action in equity for a recission of tbe contract on tbe ground of fraud. It is like tbe case of Miner v. Medbury, 6 Wis., 295, and cases of that character.
And tbe difficulty, therefore, which meets us at tbe outset and which appears to be insurmountable is, tbat tbe judgment does not provide for an absolute recission of tbe contract, but treats it as valid in part and void in part. Tbe plaintiff is permitted to bold on to tbe real estate, and at tbe same time have tbe notes and mortgage executed to secure tbe payment of a portion of tbe purchase money canceled for fraud. It seems to us tbat this cannot' be done'without a violation of well established principles. We do not wish to be understood as bolding that; upon tbe evidence, tbe plaintiff would be entitled to a rescission of tbe contract and a recovery of tbe amount paid, but merely tbat be cannot affirm and disaffirm tbe contract at tbe same time. This, ‘is well settled. Weed v. Page, 7 Wis., 503; Hollenbeck v. Shoyer, 16 do. 499; Costigan v. Hawkins, 22 Wis., 74 ; Akerly v. Vilas, 21 do. 88; Weeks v. Robie, 42 N. H., 316; Pearsall v. Chapin, 44 Penn., S. R., 9 ; Barton v. Beer, 35 Barb. S. C., 78. are a few of tbe very many Cases which might be cited in support of this doctriue.
Tbe law upon this subject is very clearly laid down by Beardsley J., in Massen v. Bovet, 1 Denio 69-74, as follows: *104The party who would disaffirm a fraudulent contract must return whatever he has received upon it. This is on a plain and just principle. He cannot hold on to such part of the contract as may he desirable on his part and avoid the residue, but must rescind in toto if at all.” And the rule is the same in respect to both real and personal estate. The plaintiff must make his election, either to rescind the contract by restoring all that he has obtained by it, when he may recover of the defrauding party what he has paid upon it, or he may retain the real estate and sue for damages sustained by reason of the alleged fraud. But he cannot affirm so much of the contract as may be advantageous to him, and rescind as to the residue. And this seems to be what was really done by the judgment of the court below.
It results from these views that the judgment of the circuit court must be reversed, and the cause remanded for further proceedings.
By the Court. So ordered.