
    Garrido, Plaintiff and Appellee, v. Falú, Defendant and Appellant.
    Appeal from the First District Court of San Juan in an Action for Eescission of Contract and Damages.
    No. 2984.
    Decided January 21, 1924.
    
      Contract — Kevendication—Wakbantt.—A sold a house and lot to B, who, having been sued in revendieation, summoned A as warrantor and also brought an action against him for the rescission of the contract of sale, the refund of the price and the value of the improvements. The grantor summoned as warrantor did not enter appearance in the action of revendieation, which was finally decided in favor of the plaintiff. Beld: That the judgment sustaining the action for rescission was just and should be affirmed.
    The facts are stated in the opinion.
    
      Mr. M. F. Bossy for the appellant.
    
      
      Mr. J. Martínez Dávila for the appellee.
   Mb. Chief Justice del Tobo

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.

When the action was filed by Garrido against Manuel Falú only the action of the Agricolts against Garrido had been brought. In this latter action Manuel Falú was summoned as warrantor but did not appear, and judgment was rendered against Garrido. After this the trial was had in the present action by Garrido against Falú in which Ga-rrido prayed for the rescission of the contract of purchase and sale entered into between the plaintiff and the defendant and that the defendant be adjudged to refund to the plaintiff the sum of $1,800 that he had paid for the property and pay him $2,225 that he had expended in improvements on the house. The evidence was examined and the court rendered judgment for the plaintiff, whereupon the defendant took the present appeal.

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 aiid on the pleadings and the evidence judgment was rendered against Garrido. Such being the case, the judgment below ordering Falú to refund to Garrido the price paid for the house and pay him what in good faith he had expended in improvements is just and proper and should be affirmed. It is not necessary to say that after the judgment is executed all rights that Garrido had pass by law to Falú to be asserted by him as he may be advised.

'Affirmed.

Justices Wolf, Aldrey and Hutchison concurred.

Mr. Justice Franco Soto took no part in the decision ■of this case.  