New Trial—Specifications in Statement—Insufficiency of Evidence. Where there is no evidence, or only slight and insufficient evidence, to sustain a particular finding, or a particular part thereof, a specification in the statement on motion for a new trial that there is no evidence to justify or to prove, or tending to prove, such particular finding, or part thereof, is sufficient.

Appeal from New Trial Order—Conclusions of Law—Right of Vendee to Improvements Upon Failure of Title.—(Jpon appeal from an order denying a new trial the conclusions of law are not reviewable; and upon such appeal in an action to enforce rescission of a contract of sale for failure of title and for misrepresentations concerning the title, a conclusion of la.w as to the right of the vendee to recover the value of his improvements is not the proper subject of review or decision.

Vendor and Purchaser—Rescission of Contract of Sale—Defective-Title—Mistaken Representations—Invalid Railroad Grant.— Where the vendor in a contract of sale claimed title as grantee of a railroad company, and by honest mistake misrepresented the title as good, whereas in fact the railroad company held only a void patent under an invalid railroad grant, such defect in the title, when discovered by the purchaser, is ground for a rescission by him of the contract of sale, if promptly made upon discovery of the defect

Id.—Act of Congress—Equitable Title of Vendors—Right to Patent—Promise to Purchaser—Delay Without Damage—Rescission not Justified.—Where an act of Congress subsequently passed recognized an equitable right in the vendor as a bona fide purchaser from the railroad company, and gave him the right to receive a patent, which he could not obtain until the railroad patent was vacated, and the purchaser, with full knowledge of the facts, remained in possession and cultivated the land, relying upon the promise of the vendor to obtain a patent, if no unreasonable delay was had in perfecting the title, and the purchaser was not injured by the delay, he is not justified in rescinding the contract for the original defect in the title.

Id.—Right of Rescission Reserved—Performance of Vendor’s Prom» ise—Reasonable Opportunity—Revivor of Right.—The purchaser had the right to accept and rely upon the promise of the vendor to perfect the title, and in the meantime hold his right of rescission for the original defect of title in reserve to be exercised, if after reasonable opportunity to do so the vendor failed or refused to fulfill the promise; but the right of the purchaser to rescind will not he revived, until a reasonable opportunity has been afforded to the vendor to comply with the promise, if it is not limited to a specified time.

Id.—Delay Caused by Rule of Land Department—Judicial Notice. Where the delay of the vendor in obtaining the patent under the act providing therefor was caused by a rule of the land department that his proofs could not be received until the patent of the railroad company was vacated, and such rule was not produced in evidence, the court will take judicial notice thereof; and the vendor, not being a party to the suit to vacate the patent, and having no power to expedite a final decision therein, cannot be held responsible for delay in such decision, and cannot be blamed for not procuring a patent under that act.

Id.—Failure to Proceed Under Later Act of Congress—Absence of Notice—Rescission not Warranted.—Where it does not appear that either of the parties were advised that the obtaining of the patent by the vendor could be hastened under a later act of Congress, and no suggestion or request was made by the purchaser that the vendor should proceed thereunder, the purchaser was not warranted in rescinding the contract of sale, by reason of the original defect in the title, because of the failure of the vendor to proceed thereunder, where he gave no notice affording a reasonable opportunity to the vendor so to proceed before rescinding the contract of sale, and he does not appear to have been injured by the delay.

Id.—Finding of Damage not Sustained.—A finding that the plaintiff was damaged by the defective title sufficiently to justify a rescission made pending the reasonable delay of the vendor in obtaining the patent promised, is not sustained by the evidence, where it appears that he was living upon the land, was practically certain of securing the title, and was secure against any disturbance of his possession meanwhile, and does not appear to have had any desire to sell the land.

Id.—Representations as to Title not Fraudulent.—The representations as to title honestly made by the vendor, based upon a state of facts warranting him in making the claim of a perfect title, were not fraudulent, and would not justify any charge of fraudulent representations inducing the execution of the contract.

Id.—Sale of Water Shares—Permanency of Water Supply—Representations—Expression of Opinion.—Where water shares werp sold with the land, any assertion or prediction by the agents of the vendor that the artesian wells furnishing the supply would always yield as abundantly as they were then yielding was but an expression of opinion, in the absence of any guaranty that the water supply should be permanent.

Id.—Rescission—Failure of Water Supply—Conditional Offer to Rescind—Basis of Fraud—Payment for Improvements.—The provision of section 1689 of the Civil Code allowing a rescission where the consideration fails in a material respect, from any cause, does not apply to support a rescission on account of the failure of water supply, when the only rescission offered and decreed was on the condition that the purchaser should be paid for his improvements, and was based upon an imputation of actual or constructive fraud on the part of the vendor in contracting to convey land to which the vendor had no title.

Id.—Belief and Action of Purchaser—Continued Water Supply—• Ultimate Failure—Rescission not Permissible.—Where the purchaser, on the faith of his own belief that the water supply would be permanent, made permanent improvements, and the water supply was continuous for a term of years, if he had had full title, and had paid therefor and for the water stock, he could not, upon final failure of the supply, have rescinded the contract therefor: and where there was a. defect in the title, in respect to which his right of rescission did not exist, he could not rescind for failure of the water supply, where he was not misled in respect thereto by any.actual or constructive fraud of the vendor.

Id.—Breach or Contract by Purchaser—Failure to Pay Water Assessment.—Where the contract of sale required the purchaser to pay and discharge all taxes, assessments, and “water rates” that might he “levied or assessed on the premises,” and the water stock was sold with the land under a rule apportioning ten shares of stock to each acre of land, and they were so inseparably related under the contract that an assessment upon the water stock to carry out the purposes of the irrigation, company was, within the meaning of the contract, a “water rate assessed upon the premises,” the failure to pay it was a breach of the contract by the purchaser.