On June 11, 1887, the plaintiff sold and conveyed to the defendants six lots of land containing twenty acres each, and at the same time assigned to the defendants certain written obligations of the Bear Valley Land and Water Company (a corporation), to furnish and deliver at a certain point a certain quantity ©f water to be used on each of said lots, called “ water certificates.” The consideration to be paid by the defendants for the land and water certificates was twenty-four thousand dollars, of which six thousand dollars was paid in hand. For the balance of the purchase-money the defendants made two promissory notes to the plaintiff, of nine thousand dollars each, secured by their mortgage on said land. This action is brought to foreclose the mortgage.

*534 The answer of the defendants admits the execution of the notes and mortgage, and then proceeds as follows:—

The defendants also filed what they denominate “a further answer to complaint, and by way of cross-complaint,” in which they allege, substantially, the same facts alleged in their answer, with only the additional averment that on December 13, 1888 (nearly two months after the commencement of this action), the defendants tendered to plaintiff a reconveyance of the land and reassignment of the water certificates, and demanded a surrender and cancellation of the notes, and a return of the cash payment of six thousand dollars, all of which was rejected and refused by the plaintiff. The prayer of the cross-compláint is, that the notes be canceled, and that defendants have judgment against the plaintiff for the six thousand dollars paid, and interest.

The water certificates and the indorsements thereon are in the following form:—

The contract mentioned in the indorsement on the certificate to be signed by the holder was signed by the defendants on July 7, 1887, and is as follows:—

*540 The court found for the plaintiff on all the issues, and decreed a sale of the mortgaged property in the usual form, and the defendants appeal from the final- decree, and from an order denying their motion for new trial.

1. The appellants contend that the findings which negative the fraudulent misrepresentations charged in the answer and cross-complaint are not justified by the .evidence. It will be observed that the averments are that the plaintiff made the false and fraudulent representations by his agent. The evidence shows that the alleged agent was C. P. Condee, whose authority, if he had authority, extended no further than to find a purchaser of the property at a fixed price, and who, in his testimony on the trial, denied that he ever represented that water was piped or conducted to or upon the land sold; or that the right to the use of any water was appurtenant to the land otherwise than as expressed in said water certificates; or that plaintiff would assign to defendants any shares -of stock in the water company corporation other than said whter certificates, though he may have called those certificates water stock; or that any contract for the erection of a hotel or other buildings had been made by the plaintiff. Such representations as were made by Condee before the sale were first made to the defendant Rhodes (who was acting for the other defendants) at a place on the land where Condee is charged with having falsely represented that the water was then piped, yet there was nothing on the land to indicate that there was either pipe or water anywhere upon it. The water certificates, in the form above set out, were indorsed by the plaintiff and delivered to the defendants’ agent, with deed for the land, on June 11, 1887, and received by defendants on July 11, 1887. It is admitted that defendants knew no water had been piped on the land as early as October, 1887, and the evidence strongly tends to show that the defendant Hoopes must have known the same in July, 1887; yet *541 the defendants made no offer to rescind until December, 1888, about two months after the commencement of this action. There is no evidence nor pretense that the plaintiff personally made any false representation whatever.

As the defendant Rhodes testified that he had been in the real estate business a number of years, and had personally visited and examined the land on two occasions before he made the purchase, it is difficult to understand how he could have been deceived by the alleged representations of Gondee as to water being piped on the land at the times he examined it, when he saw no signs of pipes, water, or hydrants, and asked no questions as to where they were; and it is still more difficult to conceive how the defendants could have been deceived as to the purport or nature of the water certificates at the time they accepte.d those certificates with the deed for the land. Considering these circumstances, which, to some extent, justify the application of the maxim caveat emptor, in connection with the testimony of Gondee, which denies all the material misrepresentations charged, I think the finding that there was no fraud on the part of the plaintiff is justified by the evidence.

2. Appellants contend that the water certificates are void and of no value, because, — 1. “They were issued gratuitously, and consequently amounted to a fictitious increase of the indebtedness of the company”; and 2. They “represent or evidence a division and withdrawal and payment to the stockholders of a part of the capital stock of the company”; and therefore, to the extent of the value of the water, the consideration for the notes and mortgage failed.

There is no pretense that the water company has failed or refused to furnish or deliver the water as per certificates, or has denied its obligation to do so; and the only evidence relating to the matter is to the effect that the water company regards the certificates as valid obliga *542 tions which it has always been ready and willing to perform, but it is claimed that their invalidity “ is stamped upon their face.”

While I am inclined to the opinion that the certificates are valid for what they purport to be, I think it unnecessary, and certainly not desirable, to decide the question in this case, to which the water company is not a party.

As counsel claim that the alleged invalidity of the water certificates appears upon their face, and have pointed to no extraneous fact on which it depends or from which it may be inferred, the defendants must have known all the facts touching such invalidity on July 11, 1887, when they personally received the certificates, and were informed by Mr. Condee that he, as their agent, had executed for them the agreement above set out,—to pay the water company twenty dollars a year. It is not denied that Condee was authorized to execute this agreement. Under these circumstances, if the defendants desired to rescind their purchase on the sole ground that the water certificates were void (and it appears that they had no other ground), they should have offered to rescind promptly, within a reasonable time. A delay of seventeen months, and until two months after the commencement of this action, and thirty-eight days after the appearance of the defendant Rhodes, was unreasonable.

The other points made by appellants’ counsel require no special consideration, as those of them which are not founded upon a misconception of facts have no bearing upon the merits of the case as viewed here.

I think the judgment and order should be affirmed.

Foote, C., and Hayne, C., concurred.

The Court. — For the reasons given in the foregoing opinion, the judgment and order are affirmed.

Hearing in Bank denied.