Page:North Dakota Reports (vol. 48).pdf/790

 pealed from the judgment, and has demanded a trial de novo.

The trial court found: That the Twin City Investment Company the owner of the land in May, 1915, gave to one Winter a contract for a deed. That Winter in May, 1916, assigned such contract to the defendant Ritz. In February, 1914, the investment company made a mortgage for $5,000 to Klein. In May, 1916, the defendant Ritz made a mortgage te the Gold-Stabeck Company for $2,000. In November, 1917, the defendant Ritz being indebted to Wheelock Mowry, the father of the plaintiff, made an agreement, for purposes of securing such indebtedness and advances to be made, with Mowry to have a warranty deed executed by the investment company to one Janzow, and thence by Janzow to Wheelock Mowry, to secure $5,000 then due from Ritz to Mowry, and that thereupon Mowry would execute a contract for a deed to Ritz for reconveyance upon payment of such $5,000 and the $5,000 first mortgage. Such deeds and contract were made. At that time the de- fendant Ritz had paid to the investment company the balance owing on the contract for a deed with Winter, and Ritz was then entitled to a warranty deed of the land. At that time Wheelock Mowry had full knowledge of the Gold-Stabeck mortgage, and that the same was un- paid. That the plaintiff at all times had full knowledge of such transactions. The plaintiff, or other members of the Mowry family, paid taxes and the principal and interest of the Klein first mortgage, aggregating, in toto with interest, $6,869.36. That the defendant Ritz is the owner of the lands, and entitled to the possession subject to the payment to plaintiff of $6,869.36, the $2,000 Gold-Stabeck mortgage with interest, and the sum of $5,000 to the plaintiff with interest. Pursuant to such findings judgment was entered. In the evidence it appears that Wheelock Mowry died in 1919, and prior thereto made a deed of the land, dated March 29, 1919, to the plaintiff for a consideration of $1 and other valuable considerations. At the trial, defendant Ritz testified concerning many transactions and arrangements had with Wheelock Mowry, then deceased. The record is long, and the exhibits numerous. It is unnecessary to state at length the evidence. The plaintiff contends that, upon the record, he is an innocent purchaser of the land without notice of the Gold-Stabeck mortgage, and that the trial court should have confirmed his title; that the trial court erroneously permitted the defendant Ritz to testify concerning transactions had with a deceased person; that the contract for a deed given to Ritz