Barry

In response to appellant’s petition for rehearing, we deem it sufficient to say that there is in the record *246 no more evidence of mistake than of fraud. We cannot assume that because the grantor was occupying the property he did not intend to convey it to the grantee. That would' be a dangerous and unauthorized principle of construction to apply to an instrument that is presumed to express the intention of the parties. In the absence of a clear showing that he intended otherwise, one must, of course, be held to the plain meaning of the words he uses in the conveyance of real property.

The petition for rehearing is denied.

The controversy is over a narrow strip of land, constituting a part of Mission block number 84 in the city and county of San Francisco. There are three counts *241 in the complaint. The first is in the usual form of an action to quiet title; the second and third counts seek to set aside a deed from John Barry, the original plaintiff, to William Lyons, respondent’s grantor, on the ground of fraud, mistake, failure of consideration, and misrepresentation. Said instrument is in the form of a quitclaim deed and purports to convey by metes and bounds the land described in defendant’s answer. The answer disclaims all interest in the property described in the amended complaint except so much thereof as is embraced within that described in the answer and specifically denies the allegations of the. second and third counts of the complaint in reference to the execution of said deed and alleges that it was freely and voluntarily made with full knowledge of the facts. After the commencement of the action, the original plaintiff died and John Barry, his son, was substituted as plaintiff. On November 28, 1911, by stipulation, plaintiff had entered a “judgment in part,” quieting his title to all…

The controversy is over a narrow strip of land, constituting a part of Mission block number 84 in the city and county of San Francisco. There are three counts *Page 241 in the complaint. The first is in the usual form of an action to quiet title; the second and third counts seek to set aside a deed from John Barry, the original plaintiff, to William Lyons, respondent's grantor, on the ground of fraud, mistake, failure of consideration, and misrepresentation. Said instrument is in the form of a quitclaim deed and purports to convey by metes and bounds the land described in defendant's answer. The answer disclaims all interest in the property described in the amended complaint except so much thereof as is embraced within that described in the answer and specifically denies the allegations of the second and third counts of the complaint in reference to the execution of said deed and alleges that it was freely and voluntarily made with full knowledge of the facts. After the commencement of the action, the original plaintiff died and John Barry, his son, was substituted as plaintiff. On November 28, 1911, by stipulation, plaintiff had entered a "judgment in part," quieting his title to…