Page:North Dakota Reports (vol. 48).pdf/788

 there was an express contract, and there is ample evidence to sustain the finding of the jury.

and, JJ., concur.

JASON L. MOWRY, Appellant, v. THE GOLD STABECK COMPANY, a corporation, formerly known as the Gold-Stabeck Loan & Credit Company, Herman C. Ritz and A. F. Winters, Respondents.

(186 N. W. 865.)

Witnesses — testimony concerning transactions with deceased admissible, where none of parties are representatives, heirs, or next of kin.

1. In an action to determine adverse claims where no one of the parties is a personal representative, the heir or next of kin of a deceased person, testimony concerning transactions had with such deceased person is not rendered inadmissible, pursuant to § 7871 C. L. 1913.

Quieting title— court held to have properly fixed priority.

2. In an action to determine adverse claims, it is held for reasons stated in the opinion, that the trial court did not err in determining the defendant to be the equitable owner of the land and in fixing the priority of liens thereupon.

Opinion filed Jan. 31, 1922.

Action in District court, Rolette county, Butts, J.

Plaintiff has appealed from a judgment in defendant’s favor. Affirmed.

Fred L. Ellsworth, Fred E. Harris, for appellants.

“A fee simple title is presumed to be intended.to pass by a grant of real property, unless it appears from the grant that a lesser estate was intended.” Little v. Braun, 92 N. W. 200, 11 N. D. 10; Jasper v. Hazen, 58 N. W. 454, 4 N. D. 1; 32 L. R. A. (N. S.) 1046 and cases cited; 5