Beverly

Action to cancel a note and mortgage made and executed by plaintiff to defendant, March 15, 1890, in connection with, and as part of, a transaction by which an exchange of lands between the parties was effected.

The judgment of the trial court was in favor of the plaintiff, and the defendant appeals from the judgment, and from an order denying his motion for a new trial.

The material facts, as found by the lower court, are substantially as follows:

The plaintiff owned 95 acres of land in Santa Clara county, subject to two mortgages, one to Roach for ten thousand dollars, drawing interest at 8-i per cent per annum, payable semi-annually, to mature November 14, 1892; and the other to Frink for $1,000, to become due May 15, 1890. The defendant owned a tract of 840 acres of unencumbered land, situate in Tehama county. On March 15, 1890, an exchange of these lands was effected in the following manner: Each executed to the other a deed of his land, the conveyance of the Santa Clara land to defendant being subject to, and defendant assuming the payment of, the said mortgages thereon. The plaintiff, having represented that his 95 acres was worth $225 dollars per acre, aggregating…