Mr. Justice Bean
delivered the opinion of the court.
1. The cross-bill filed by the plaintiff in the action at 'law brought against him by the defendants to recover possession of the property in question, and the case made for him on this appeal, proceed on the theory that he is entitled to all the rights and remedies against the defendants that would have accrued to him, had the lease mentioned and referred to in the memorandum agreement between him and the defendants on January 13th been in fact executed. His position is that he is entitled either to á deed conveying to him a merchantable title of the property, or to damages for a breach of the contract to convey. The vice of this position lies in the fact that the defendants *423never agreed to sell and convey the property to him. The only contract they had with him was to “demonstrate.” that the mill conld “be successfully run, making good lumber”; and if they did so execute to him a lease conditioned as the one formerly given by them to Smith & Murray, except that it should end on July 3, 1903, and should be subject to such orders as should be made in any litigation growing out of the former lease, and if they failed to demonstrate that the mill could be successfully run, making good lumber, they were to return the money paid by him, and all negotiations between them were, to be off. The pleadings expressly admit that, immediately upon the making of the contract between the plaintiff and the defendants, the plaintiff entered into possession of the mill property, and demonstrated himself that it could be successfully run and would make good lumber, and thereafter continued in possession, without requiring or requesting the defendants to make such demonstration, and so waived the conditions of the agreement in that regard.
2. It is in proof that after they had thus shown that the mill could be successfully run, making good lumber, the defendants offered and were ready and willing to make the lease as agreed upon, but the plaintiff would not accept it, because of some litigation in the bankruptcy court to which the defendants were not parties, and for which they were not responsible. The plaintiff having refused to accept the lease, it is difficult to understand how he can claim any rights by virtue of some provision which would have, been in the lease if it had been made and accepted. For this reason, we are of the opinion that plaintiff is not entitled to any relief in this suit.
3. If, however, the lease had been in fact executed and delivered, the plaintiff could not have remained in possession of the property, and refused to pay the purchase price. Where the vendee under an executory contract for the purchase of real estate takes possession, and the title of the vendor fails, or he is unable to make conveyance as stipulated, the remedy of the purchaser is either to rescind the contract and restore or offer to restore possession, in which ease he may recover the purchase money and interest, or retain possession under the contract,, and *424pay the purchase price, accepting such title as the vendor may be able to give. He cannot retain both the land' and the purchase money, until a perfect title shall be offered to him: Gates v. McLean, 70 Cal. 42 (11 Pac. 489); Rhorer v. Bila, 83 Cal. 51 (23 Pac. 274); Worley v. Nethercott, 91 Cal. 512 (27 Pac. 767, 25 Am. St. Rep. 209).
It follows that the decree of the court below must be affirmed, and it is so ordered. Affirmed.