Appeal from the Fourth District.

Suit upon a note for $18,000, given by defendant to plaintiff, for the purchase money of a portion of one hundred vara lot, No. 106, in San Francisco, sold by the latter to the former, and to foreclose the mortgage executed to secure its payment.

Defendant sets up in answer substantially that there is a failure of consideration for the note, in this, that plaintiff’s title to the lot is worthless; that said title is derived from the estate of one John Townsend, upon which one Schallenberger was administrator; that under an order of the Probate Court for the sale of the real estate of Townsend, certain auctioneers sold the lot in question, together with other real estate, and that the attorney at law of the administrator of the estate of Townsend was the purchaser, but that Reese, plaintiff here, and said attorney fraudulently agreed to insert and did insert the name of plaintiff as purchaser, in consideration whereof the attorney allowed plaintiff to retain this lot, No. 106, and took from him a deed of the balance of the property purchased; that the attorney, without the knowledge of the administrator, filed a report of the sale, in which Reese was fraudulently named as the purchaser, and that the sale was accordingly confirmed and a deed made by the administrator to Reese; that Reese always told defendant the title to the lot was good; that since ascertaining such title to be invalid, defendant has offered to reconvey the lot to plaintiff upon his refunding the interest money paid and canceling the note and mortgage, which plaintiff has refused.

The cause was tried by the Court, and upon the defenses made, the findings were, that plaintiff, and not Crosby, was the purchaser; that there was no fraud in such purchase on the part of plaintiff, and no collusion by the plaintiff with Crosby; that the property purchased from the estate of Townsend was only part of the property for the purchase money of which the mortgage was given; that the defendant received from plaintiff his deed and the possession of the property included in the mortgage, has continued in possession ever since the sale, and has sold parts thereof to parties who are in possession under such sales; that plaintiff’s deed to defendant contained the following words of conveyance, and no other, viz : “ bargain, sell, alien and remise, release, convey and confirm all his right, title and interest in and to, etc.and the following words of covenant, and no other, viz: “ that he, said Reese, had not made, done, committed, executed or suffered any act or acts, thing or things whatsoever, whereby or by means whereof said land so sold by him to defendant, or any part thereof then or at any time thereafter were or could be impeached, charged or incumbered in any manner whatsoever; ” that defendant offered to reconvey as alleged.

A judgment was rendered for plaintiff for the amount due on the note, with a foreclosure of the mortgage. Defendant appeals.