¶1(dissenting).
¶2Being unable to agree with my Associates that the trial court’s judgment should be reversed, I respectfully enter my dissent.
¶3I am in accord with Associate Justice WERLEIN in the construction he has given the contract of purchase, that is, that since appellants elected to take title subj ect to the obj ections to title, they must pay for all acreage to be conveyed by the general warranty deed. The part of the contract giving appellants the right to deduct $443.42 per acre would apply only if appellants elected not to include certain acreage in the deed to which appellees, in appellants’ attorney’s opinion, had no marketable title.
¶4The only portion of Associate Justice WERLEIN’s opinion with which I disagree is where he holds that since appellees were in default in not being able to give a good and merchantable title they could not complain of the failure of appellants to make a sufficient tender. I do not disagree with the rule that holds default by the seller will excuse tender by the purchaser. I just think under the facts of this case the rule is inapplicable. Appellees were in default in failing and refusing to make title good. Appellants could have rescinded the contract. They chose, however, not *882to resort to such provision in the contract. They chose rather to exercise their right to take title subject to the objections. When they did this they waived appel-lees’ default. They were then obligated to make tender of the full purchase price less the amount of the lien in favor of Bank of the Southwest, surveyor’s fees, documentary stamps and any reasonable expense they had incurred in an effort to cure title. They were relegated to a recovery, after conveyance, of the reasonable cost and expense of curing title, and, if they were unable to cure title, they could recover on their warranties.
¶5I am also of the view that the record supports without question that appellees were ready and willing to execute a general warranty deed to all the land if appellants would pay them for all the land. It was unnecessary for appellees to prepare a different deed. They would execute the one presented by appellants upon proper tender.
¶6I would affirm the judgment of the trial court.