This action was instituted to re-, coyer the balance of the purchase price of certain real *521estate in Colorado. The judgment in the trial court was for the defendant.
The facts necessary to- an understanding of our decision are that plaintiff is a charitable and religious society and that Mary R. Greenard purchased by contract of sale certain real estate from such society for the price of $2,800. Of this sum she paid in cash $300 and was to pay the balance of $2,000 in installments. She entered into possession. She died without paying the balance. She left a will appointing defendant executor of her estate and devising to plaintiff the land which she had bought of plaintiff and for the balance of the purchase price of which plaintiff brought this action.
We conclude that the judgment for defendant should be sustained for the following reasons: Mrs. Greenard only had an equitable title to the land, that is to say, she had, in effect, a title subject to the payment of $2,000 balance of purchase money. It was such title she passed over to the plaintiff by her will, and when plaintiff accepted it, it accepted the land subject to a charge of $2,000, unpaid purchase money. Plaintiff is not entitled to the land unincumbered, for the will did not attempt to transfer such an estate. If the debt for balance of purchase money had been held by some third party, plaintiff, of course, in order to keep the land, would have been compelled to pay it off; and it would have had no claim back on Mrs. Greenard because she did not warrant anything. The circumstance that plaintiff itself is the vendor and holds the claim for the purchase money, does not give it any greater right. If plaintiff desired to hold on to its claim for balance of purchase money as a subsisting debt against Mrs. Greenard’s estate, it should have refused the devise in the will. If plaintiff be allowed to accept a devise of a limited estate — an estate on which purchase money is unpaid — and then compel the devisor’s representative to pay the purchase money, it will, •by that means, obtain a clear title in fee simple when *522an encumbered title was all that was devised. So we conclude that plaintiff makes a case in defendant’s favor. We have not been cited to a case bearing directly on the question here presented. The cases of Chrisman v. Linderman, 202 Mo. 605; Hospes v. Almstedt, 13 Mo. App. 270; Clift v. White, 12 N. Y. 519, and others in the briefs of each party on the doctrine of merger, do not seem to meet the peculiar nature of the present controversy.
The judgment is affirmed.
All concur.