given by a son for the sum furnished him by his father was intended as a memorandum of an advancement.” Gardner v. Taylor, 58 S. W. S8; Stoery v. Stoery, 214 Fed. 973.
“Where a protected party on cross examination goes into new matter not touched upon in the direct examination and as to which the witness is incompetent under the statute, he thereby waives the incompetency as to such new matter.” Enc. of Evi. Vol. XII, p. 1o1o and case cited note 17. This is also the view of the Iowa Court: Millison v. Rittgers, 118 N. W. 512; Walkley v. Clark, 78 N. W. 70.
Our own statutes disqualifying a witness removes the prohibition if the witness is called by the adverse party. 1913 Code § 7871.
“The findings of fact made by a trial court as where a trial by jury has been waived, or findings were made in the Court of trial or proceedings, are on the same footing as a verdict of the jury, unless there has been some statutory provisions to the contrary, and are generally considered conclusive on appeal.” 4 C. J. 876 and cases cited, note 78.
This Court has on at least five different occasions so held: Foster County State Bank v. Hester, 18 N. D. 135, 119 N. W. 1044; State v. Banks, et al 24 N. D. 21; 138 N. W. 973; Bergh v. John Wyman Land & Loan Co. 30 N. D. 158; 152 N. W. 281; Stavens y. Elevator Co. 161 N W. 558; Yocum v. Chrisman, 168 N. W. 621; Lark Equity Exchange v. Jones, 171 N. W. 863.
Birdzell, J. This is an appeal from a judgment of dismissal in an action to foreclose a real estate mortgage. Trial de novo. The facts are as follows:
In the fall of 1901, the defendant, E. B. Lichtenwalter, made a homestead entry on a quarter section of land in Foster county. The following year, his father, Solomon R. Lichtenwalter of Toledo, Iowa, purchased a half section of land in the same vicinity for $3,200. The defendant had possession of this half section from the time his father purchased it paying all the taxes, with the exception of the first year’s tax, and no rent. When the defendant had completed the proof on his homestead in 1905, he moved his improvements to the northeast quarter of section 29, township 146, range 64, which was one of the quarter sections that had been purchased by his father. He, the defendant, made other improvements there, and continued to make it his home. In 1910, the
