delivered the opinion of the court.
This is an action to rescind a contract of purchase' and sale and to recover damages. From the pleadings and the evidence it appears that by a public deed executed on November 25,1919, defendant Falú sold to plaintiff Garrido a lot of 267 square meters and a house, the lot being a segregation from another lot of 541 square meters situated on Ferrocarril street, Río Piedras, P. R. On February 7, 1920, Garrido and Falú executed another notorial instrument in which the latter declared that half of the property sold on November 25, 1919, belonged to him as community property and the other half by inheritance from his wife.
Garrido took possession of the property and was sued" by Dámasa and Estebania Agricolt and Heriberto Torres Solá, the last as assignee of Julio Gautier who was known as, Falú. They alleged that they were the owners of the lot in the possession of the plaintiff in this case. They based their claim on the will of Maria Cleofe Benitez, deceased, which was made in 1913 and by which she left them “the house in which she is living and the lot on which it is situated,” and also on a deed executed in 1920 by defendant Falú in which he declared that during his wedlock with Maria Cleofe Benitez he acquired by purchase from Ramón Silva a lot of 541 square meters on Ferrocarril street, Rio Piedras; that his wife died in 1919 leaving a will made in 1913; that by the fourth clause of the said will she left to Dámasa and Estebania Agricolt and Julio Gautier, known as Falú, the house in which she was living and the lot on which it was situated; that the lot referred to in the will was the lot described in the first clause of the deed, or the lot of 541 square meters situated on Ferrocarril street, Rio Piedras, and that carrying out the wish of his wife and as her sole heir, Falú thereby delivered to the legatees the house and lot.
It is alleged in the complaint that in executing the deed of acknowledgment and delivery of legacy to which reference has been made Falú acted fraudulently. In our opinion the fraud has not been proved. The explanation of Falú is logical. There were two houses on the lot of 541 meters. One on the 267 meters of land was sold to Garrido and the other on the other part of the lot was disposed of by the will. But the documents were drafted in such fashion that no mention was. made of two houses and it was expressly said that the house bequeathed went with a lot described as consisting of 541 meters, thus including the 267 meters sold to Garrido. Besides, Falú had an opportunity to explain the whole matter in the action brought by the Agricolts against Ga-rrido, in which he was summoned as warrantor, and did not do so; therefore, he must accept the consequences of his own acts.
The real situation when the judgment appealed from was rendered was as follows: Falú sold a house and lot to Garrido. Garrido was sued by the Agricolts to recover the lot and summoned his grantor as warrantor. The grantor" did nothing
'Affirmed.