L. R.A. (N. S.) 387; § 6754 C. L. 1913.
“Every grant of real property or of an estate therein, which appears by any other writing to be intended as a mortgage within the meaning cf chap. 86 of this Code, must be recorded as a mortgage; and if such grant or other writing, explanatory of its true character, are not recorded together at the same time and place, the grantee can derive no benefit from the record.” Merchants State Bank v. Tufts, 14 N. D. 238, 103 N. W. 760.
“When a grant of real property purports to be an absolute convey- ance, but is intended to be defeasable on the performance of certain conditions, such grant is not defeated or affected as against any other person than the grantee, his heirs or devisees, or persons having actual notice, unless an instrument of defeasance, duly executed and acknowledged, shall have been recorded in the office of the Register of Deeds of the county where the property is situated.” § 6755 C. L. 1913; Patnode v. Deschenes, 15 N. D. 166, 106 N. W. 573; Gray v. Harvey, 17 N. D. 1, 113, N. W. 1034; Vallaley v. First Nat. Bank, 14 N. D. 580, 106 N. W. 127.
W. O. Newhouse, R. C. Morton, and J. J. Weeks, for respondents.
“We cannot say that it was the purpose of the legislature to exclude all evidence merely because the witness from whose lips it might fall would enjoy the advantage of testifying to a transaction with a deceased person, who on that account could not confront and contradict him. Statutes which exclude testimony on this ground are of doubtful expediency. There are more honest claims defeated by them by destroying the evidence to prove such claim than there would be fictitious claims established if all such enactments were swept away, and all persons rendered competent witnesses.” St. John v. Lofland, 5 N. D. 140.
This case and this expression of Judge Corliss is qouted with approval in “Wigmore on Evidence” § 578. See also Jones on Evidence 776.
Next of kin must be a party as such. Clarke v. Ross, Sup. Ct. Ia., 0 N. W. 629; Lake Grocery Co. v. Chiostri; 34 N. D. 4oo; Nora L. Savage v. M. W. A. Russell Savage et al., 113 Pac. 802, Vol. 33 L. R. A. (N. S.) p. 773.
Bronson, J. This is an action to determine adverse claims concerning one-half section of land in Rolette county. The plaintiff has ap-
