The evidence tends to show that Tale Addition is a small tract of platted land on the outskirts of Portland in which the streets, while properly platted and dedicated, have not been opened or improved. An old orchard is included in the dedication, the fruit trees still standing unmolested in the streets and upon the lots. There were sixteen trees upon the three lots conveyed by plaintiff, and five trees immediately in front thereof. There was a somewhat dilapidated hut still habitable house about twenty-two by thirty feet in size, standing partly on lot 5 and extending about nine feet into the street. About in the center of the street there is *33a row of five fruit trees. Some mention is made about a septic tank connected with the house, as being also located in the street, but concerning this fact there is practically no evidence. The street is a mere paper thoroughfare, there being no sidewalks or improvements thereon that would attract the attention of an observer.

The trade was effected principally through plaintiff’s agents, Moore and Eobinson, and Mr. Collier as agent for defendant. There was no representation that the boundaries of the lots included the house, or any statement made in regard to the fruit trees. Plaintiff had been the owner of the property for about two months and did not know that the house extended beyond the boundaries of the lots or that the five fruit trees were in the street, and made no representation as to the condition or location of the house or the trees; nor were any such representations made by anybody. It is fair to assume from the testimony that both plaintiff and defendant honestly supposed that the house was on the lots and not in the street. Defendant visited the property and inspected it before buying, and as to what could be ascertained without a survey she probably was as well informed as the plaintiff. There is no evidence of any actual fraud, and no such negligent act on the part of plaintiff as amounts to constructive fraud. Under the pleadings here no actual or intentional deceit on the part of the plaintiff appears, or the breach of any duty which he owed to defendant. The defendant has the three lots which she obtained by the exchange, and the gist of her defense is that a house and some fruit trees which she supposed, after inspection, were upon the lots, proved, upon a subsequent survey, to be situated, *34the house partly, and the five trees wholly, in an unopened street.

.The decree is affirmed.

Affirmed. Motion to Be call Mandate Allowed and Mandate Corrected.