White

This appeal is from the judgment in favor of the plaintiff in an action for the cancellation of a deed and contract executed by Joseph Hendley, now deceased, to defendant.

Joseph Hendley, having apparently become attached to his nephew, the defendant, on April 26, 1910, did "grant, bargain, sell, convey and confirm unto the party of the second part, and to his heirs and assigns forever, all his right, title, and interest in and to all that real property situate in the said County of Butte, State of California, bounded and described as follows, to wit: . . .

The court found that the deed and contract constituted one instrument; that the intention of Joseph Hendley was to provide for the development of the mine, and that the development of the mine was the consideration for the grant; that Joseph W. Hendley failed to perform the .conditions provided, and never intended to perform them, and, hence, there being a failure of consideration and breach of condition subsequent, plaintiff was entitled to a cancellation of the deed. The court received in evidence the deposition of Joseph Hendley, in which is stated the intent with which he made the transfer, over the objection of defendant…