Page:North Dakota Reports (vol. 48).pdf/658

 mortgaged; and that the son, prior to the conveyance to him, had long been in possession of the land paying taxes but no rent—it is held:

The notes and mortgage are not enforceable at the suit of the executor of the mortgagee.

Appeal from the District Court of Foster County, North Dakota, Coffey, J.

W. E. Hoops, R. C. Morton of counsel, for appellant.

Under the maxim above cited it is the rule of law that equity always refuses to lend its aid in any manner to one seeking its active interposition who has been guilty of unlawful or inequitable conduct in the matter in relation to which he seeks relief. 16 Cyc. Law & Procedure, p. 145 and tase there cited.

The right of the executor to bring this action in his own name has been brought into question and bearing upon that we say the authority is so overwhelmingly in support of our contention we offer no argument. 18 Cyc. 23; 18 Cyc. 20; American Soda Fountain v. Hogue, 17 N. D. 375; Barry v. Howard, 127 N. W. 526.

That debt being barred does not extinguish the right to foreclose the mortgage. Jones on Mortgages, § 1204; Wisewell v. Baxter, 20 Wis. 680; Wigerton v. Schneider, 26 Wis. 385; Henry v. Mina Co. 1 N. W. 019; Read v. Edward, 2 N. W. 262.

This property represented by the notes cannot be a gift. To be a gift it must have been executed as such and to execute this gift these notes must have been delivered up to defendant. Donover v. Argo, 44 N. W. 818 (Iowa); Jones, Evd., p. 980, § 781; Carr v. Carr, ror N. W., P. 550.

C. B. Craven, for respondents.

"Parol evidence is admissible to prove or explain or to impeach the consideration of a negotiable instrument." Enc. of Evid. Vol. II, p. 491, and cases cited; Enc. of Evid. Vol. II, p. 493; Harris v. Harris, 69 Ind. 181.

“Since the question of advancement between father and son is a question of intention, parol evidence was admissible to show that a note