Lake

Plaintiff brings the action to rescind a certain agreement to sell to defendant C. W. Owens an undivided sixteenth interest in the so-called “San Bernardino Iron Mines”; also to rescind the deed subsequently made thereto by plaintiff in pursuance of said agreement, and to cancel both, said instruments. The cause was tried by the court sitting without a jury, and the findings and judgment were in favor of defendants that plaintiff take nothing by his action. Plaintiff appeals from the judgment and from the order denying his motion for a new trial.

*198 Plaintiff alleged, and it was found, that he was the owner of an undivided sixteenth interest in the said mines, the testator of defendant Phoebe Owens being also at his death the owner of an undivided, but not the whole of the remaining, interest therein. Defendant Phoebe Owens, widow of deceased, duly qualified as executrix, and was by his will named as sole devisee of her husband’s estate, and inventoried the said mines as property of the estate. Subsequently, to wit, December 18, 1901, defendant C. W. Owens, son of deceased and defendant Phoebe Owens, procured from plaintiff a written contract, by which plaintiff agreed to sell…