Page:North Dakota Reports (vol. 48).pdf/660

 father conveyed his one-half section to the defendant, and at about the same time, June 15, 1910, the defendant and his wife executed four notes for $1,000 each, payable to the father, which were secured by a real estate mortgage of even date on the northeast quarter, where the defendant was living. This is the mortgage sought to be foreclosed in this action. The following October, the defendant’s father made a will which contains the following paragraph:

“I now proceed to make some specific devises and bequests but have already advanced to my daughter Geneve and to my son Bruce B. property or money in value or amount substantially equal to what I now give to my other children, I make no special devise or bequeath to them.” He then gave about $5,000 to each of the other children. In July of the following year, 1911, the father died. The notes and mortgage in question were inventoried as part of his personal estate, and this action is brought by the executor to collect the notes and foreclose the mortgage. In our opinion the record presents no doubtful question of law or fact. It is well established by competent evidence that the senior Lichtenwalter had purchased this one-half section of. land for his son, the defendant; that he did not have full confidence in the son’s ability to take care of his business affairs; that he specifically disapproved of at least one doubtful venture, when the son contracted a large indebtedness in the purchase of a threshing outfit; and that, while he was desirous of transferring the land to the son, he wanted to fix it so that the defendant and his wife could not be deprived of their home through improvidence. The defendant testified without oBjection that his stepmother had told him that his father had stated that the notes were not to be collected. Upon direct examination the defendant was not asked concerning the trans- action between himself and his father. Such evidence was doubtless conceived to be incompetent under § 7871, C. L. of 1913. But upon cross-examination plaintiff's counsel inquired into the transaction exhaustively, as a result of which it appeared that an arrangement existed between the defendant and the father whereby, if the defendant would move his buildings upon the father’s land, break it up and improve it, that he, the father, would deed the land to the defendant; also that the only object of the mortgage was to protect the homestead against the possibility of its being taken by creditors or voluntarily frittered away by the defendants. Since the evidence clearly establishes the transaction