Appeal from the District Court of the Seventh Judicial District, County of Solano.

This was an action brought to recover the sum of $4,500, with interest, the purchase-money for a lot of ground in the city of Benicia, on the ground of false and fraudulent representation as to the fact of title in the vendor at the time of sale. The facts are as follows:

In October, 1849, the defendant sold and conveyed to the plaintiff the lot of land for $4,500. Before, and at the time of the sale, the defendant represented to the plaintiff that he had the lot, or was the owner of the lot, and had purchased it from Thomas O. Larkin. The deed of conveyance from defendant to plaintiff, after reciting the consideration-money, etc., is as follows: “ Have granted, bargained, sold, and conveyed, and by these presents do grant, bargain, sell, and convey, unto the said Williaih F. Peabody, his heirs and assigns, for ever, all my right title and interest and estate in and to a certain tract or parcel of land.” ****** 'Which said tract or parcel of land was derived to me, the said Bethuel Phelps, from Thomas 0. Larkin, of Monterey, by deed bearing date-day of-, a. d., one thousand eight hundred and forty-nine, reference being had to said deed now on record in the office of the alcalde of said Benicia. To have and to hold the above granted and bargained premises, with all the privileges and appurtenances thereof, to the said William F. Peabody, his heirs and assigns, to his and their own use and behoof for ever, and I, the said Phelps, do, by these presents, covenant to warrant and defend the said William F. Peabody, his heirs and assigns, in the title to said premises, from me and my heirs and assigns, for ever.”

Under this deed, plaintiff entered into possession of the premises and made valuable improvements thereon. In January, 1851, plaintiff conveyed the premises to Henry G-. Wetmore, who in October following conveyed the same to John T. Peabody. In February, 1853, Thomas 0. Larkin sued the Peabodys in ejectment for the premises, and in May following recovered judgment in such action fbr the possession. In January, 1855, execution was issued, under which proceedings were taken, which, it was insisted, amounted to an eviction./’In the Larkin suit the defendant was not made a party, nor had he any notice of it, other than the knowledge that such an action was pending, This cause came on for trial, and, by agreement of counsel, was referred to E. W. F. Sloan to find the facts and report a judgment thereon. On the eighth day of March, 1856, the referee reported a judgment for plaintiff for the amount claimed, and judgment was entered on that day, which was in vacation. The defendant appealed from the judgment; and, at the January Term of this Court, 1857, the judgment was reversed, on the ground that it was rendered in vacation. At the following March Term of the District Court of the Seventh Judicial District, in and for Solano county, on motion of plaintiff’s counsel, and on filing the remittitur in this case from the Supreme Court, the report of the referee was confirmed, and, on March 28,1857, judgment was entered for plaintiff. Defendant’s counsel then obtained from the Court below an order directing the referee to certify the evidence taken before him, and gave notice of motion to set aside the report. The evidence being returned by the referee, a statement was prepared, and the motion made, which being denied, the defendant appealed.