The opinion
BEICKELL, C. J.
It is the settled law of this State, that a purchaser of lands, retaining possession under the contract of purchase, cannot resist a recovery of the purchase-money at law, whether the contract is in writing, or by parol. — Chris tian v. Scott, 1 Stew. 490 ; Stone v. Gover, 1 Ala. 287 ; Helvenstein v. Higgason, 35 Ala. 259 . Nor, retaining possession, can he recover the purchase-money which he may have paid. — Cope v. Williams, 4 Ala. 362 ; Donaldson v. Waters, 30 Ala. 175 . An action for the recovery of the purchase-money could be maintained, only on the hypothesis that the agreement of purchase was void, or because the vendee obtained no benefit under it. If it is vitiated by the fraud of the vendor, the vendee may elect to disaffirm it, and recover the purchase-money. The disaffirmance must be of the entire contract. It must be treated as a nullity, and the vendee must surrender, or offer to surrender, whatever of benefit he may have obtained. — Hunt v. Means, 2 Swan. 594. He can not retain possession, derived under the contract, and treat the contract as void. It would be manifest injustice, to suf *553 fer him to retain the possession of tbe land, and yet to recover that which he paid for the possession — to claim the benefits of the contract, and escape its obligations.
An undisputed fact on the trial was, that when the suit was commenced, the appellee was in possession of the lands, under the contract of purchase made with the appellant, by which she parted ,,with the chattels for the conversion of which she sued. This being true, there was no aspect of the case in which she was entitled to recover. It is not necessary to consider separately the charges given, and the refusals to charge. The error of the court is apparent from what we have said. The judgment must be reversed, and the cause remanded.