Bronson, J.
This is an action to secure the delivery of a deed and to determine adverse claims to certain real estate situated in the city of Minot. From the findings made and the judgment rendered by the trial court quieting title in such realty in the interveners and respondents herein, the plaintiff appeals, and demands a trial de novo.
The substantial undisputed facts are as follows: Margaret Druey died during the month of December, 1916. She was the mother of the interveners and John Druey, the original defendant herein. The plaintiff is the wife of John Druey. By the last will and testament [477]*477•of tbe deceased, it is provided that the property involved shall be divided equally among her children herein named. In the month of November, 1908, the deceased executed a warranty deed of this property involved to the plaintiff, as grantee. At this time and until the month of October, 1909, when they removed to Canada, the plaintiff and her husband resided upon these premises. After the death of the deceased, this deed was found in a little tin box belonging to the deceased and in which she kept other papers. John Druey, named as ■executor in the will, qualified as such, and in the month of March, 1916, listed, in the inventory of the property of the estate, this realty as assets of the estate. In the month of September, 1916, the plaintiff made a written claim of ownership concerning this property, upon her husband, then the executor, and thereafter commenced this action. Thereupon the interveners herein, the daughters of the deceased, were permitted to intervene.
The principal and controlling point in this case is the question whether the deed was delivered. The appellant contends that a delivery has been established in the record, relying largely upon the testimony of the appellant and her husband that the deed in question was delivered by the deceased to the appellant at the home situated on the property involved on the day the same was executed, and also in part upon the testimony of a third witness, one Mrs. Jack, that the deceased had told her in a conversation that she had sold the property to John Druey and had given him a deed for it. The respondents, on the contrary, maintain that the evidence shows in fact no delivei’y of the deed, not only by the surrounding circumstances showing continued acts of dominion over the premises by the deceased through improvements made, taxes paid, insurance maintained, and contracts of sale had concerning the property, but also by evidence in the record that the deed was retained by the deceased continuously because no full settlement ever had been made for the purchase price to be paid by the appellant.
The appellant testified that the deed in question was delivered to her by the deceased on the property in question at their home the day the same was made, and that she retained the same in her possession until the following fall, when she returned the same to the deceased [478]*478to keep for her. The defendant, her husband, was called for cross-examination under the statute as an adverse party by the appellant and thereafter by the respondents, and likewise testified that the deceased so delivered such deed to the appellant, his wife, and that he made the arrangements and paid the consideration, namely, $600, and the return of a lot which his mother theretofore had given to him.
Objection was made by the respondents to the competency of these witnesses to so testify concerning a transaction had with the deceased under the provisions of § 7871, subd. 2, Comp. Laws 1913. Objection was likewise made by the appellant to the testimony of the husband when called for cross-examination by the respondents.
Laura Anderson, one of the interveners, and a witness for the respondents, testified that when the deed was executed, her mother, the deceased, took the same home with her and put it in the little tin box mentioned, and that there, from time to time afterwards, she saw it when she had occasion to open it with and for her mother. Ella Baldwin, another of the interveners, and a witness for the respondents, testified that she saw this deed several times, commencing in the fall of 1909, in this tin box when she would help her mother open this box.
Objection was likewise made by the appellant to the competency of these witnesses to so testify under the provisions of the section quoted. This testimony substantially covers the direct testimony in the record of delivery or nondelivery of the deed in question by the deceased to the appellant.
We are clearly of the opinion that the objections so made to the competency of these witnesses to so testify was good, and that the testimony in question was inadmissible. Comstock v. Comstock, 76 Minn. 396, 79 N. W. 300; Pederson v. Christofferson, 97 Minn. 491, 106 N. W. 958; McDonald v. Harris, 131 Ala. 359, 31 So. 548.
All of this testimony related to a transaction with the deceased: a transaction in which necessarily she took part, was a party thereto, and participated therein.
The very essence of the whole matter, of the title involved, was the fact of the delivery or nondelivery of the deed; or of the possession or nonpossession thereof, of which peculiarly and necessarily the deceased was not only a participant, but had direct knowledge.
[479]*479In this state, the purposes of the statute involved to prevent any party from securing an undue advantage in establishing, by his testimony, what transaction or conversation took place, when the lips of the other party are sealed by death, have been clearly expressed and continuously followed by this court. Braithwaite v. Aiken, 2 N. D. 61, 49 N. W. 419; Hutchinson v. Cleary, 3 N. D. 270, 55 N. W. 729; Regan v. Jones, 14 N. D. 591, 105 N. W. 613; First Nat. Bank v. Warner, 17 N. D. 76, 114 N. W. 1085, 17 Ann. Cas. 213; Cardiff v. Marquis, 17 N. D. 116, 114 N. W. 1088; Larson v. Newman, 19 N. D. 160, 23 L.R.A.(N.S.) 849, 121 N. W. 202; Truman v. Dakota Trust Co. 29 N. D. 456, 151 N. W. 219; Lake Grocery Co. v. Chiostri, 34 N. D. 386, 158 N. W. 998.
Likewise, the testimony offered concerning the possession of the deed by these witnesses, who were incompetent to testify directly concerning the delivery of the deed, was inadmissible for the reason that it could be so introduced only for the puipose of establishing a state of facts from which a delivery or a nondelivery of the deed might be inferred. Regan v. Jones, 14 N. D. 591, 105 N. W. 613; Wall v. Wall, 139 Ga. 270, 77 S. E. 19. See note in 45 L.R.A.(N.S.) 583.
The fact that the husband, the defendant, was called so to testify by the wife, the plaintiff, as an adverse party for cross-examination under the statute, did not bring such witness without the statute, for it is plain to ■see from his testimony and his attitude in this whole record that his testimony and his interest were antagonistic to the interest of the estate., First Nat. Bank v. Warner, 17 N. D. 76, 114 N. W. 1085, 17 Ann. Cas. 213.
The further fact that this defendant, the husband, was later called as an adverse party for cross-examination under the statute, by respondents, and further testimony elicited from him concerning this transaction with the deceased, did not render the witness or his testimony in this regard competent under the circumstances disclosed by the record; for this witness was first called by the plaintiff and this incompetent testimony elicited.
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Bronson, J.
This is an action to secure the delivery of a deed and to determine adverse claims to certain real estate situated in the city of Minot. From the findings made and the judgment rendered by the trial court quieting title in such realty in the interveners and respondents herein, the plaintiff appeals, and demands a trial de novo.
The substantial undisputed facts are as follows: Margaret Druey died during the month of December, 1916. She was the mother of the interveners and John Druey, the original defendant herein. The plaintiff is the wife of John Druey. By the last will and testament [477]*477•of tbe deceased, it is provided that the property involved shall be divided equally among her children herein named. In the month of November, 1908, the deceased executed a warranty deed of this property involved to the plaintiff, as grantee. At this time and until the month of October, 1909, when they removed to Canada, the plaintiff and her husband resided upon these premises. After the death of the deceased, this deed was found in a little tin box belonging to the deceased and in which she kept other papers. John Druey, named as ■executor in the will, qualified as such, and in the month of March, 1916, listed, in the inventory of the property of the estate, this realty as assets of the estate. In the month of September, 1916, the plaintiff made a written claim of ownership concerning this property, upon her husband, then the executor, and thereafter commenced this action. Thereupon the interveners herein, the daughters of the deceased, were permitted to intervene.
The principal and controlling point in this case is the question whether the deed was delivered. The appellant contends that a delivery has been established in the record, relying largely upon the testimony of the appellant and her husband that the deed in question was delivered by the deceased to the appellant at the home situated on the property involved on the day the same was executed, and also in part upon the testimony of a third witness, one Mrs. Jack, that the deceased had told her in a conversation that she had sold the property to John Druey and had given him a deed for it. The respondents, on the contrary, maintain that the evidence shows in fact no delivei’y of the deed, not only by the surrounding circumstances showing continued acts of dominion over the premises by the deceased through improvements made, taxes paid, insurance maintained, and contracts of sale had concerning the property, but also by evidence in the record that the deed was retained by the deceased continuously because no full settlement ever had been made for the purchase price to be paid by the appellant.
The appellant testified that the deed in question was delivered to her by the deceased on the property in question at their home the day the same was made, and that she retained the same in her possession until the following fall, when she returned the same to the deceased [478]*478to keep for her. The defendant, her husband, was called for cross-examination under the statute as an adverse party by the appellant and thereafter by the respondents, and likewise testified that the deceased so delivered such deed to the appellant, his wife, and that he made the arrangements and paid the consideration, namely, $600, and the return of a lot which his mother theretofore had given to him.
Objection was made by the respondents to the competency of these witnesses to so testify concerning a transaction had with the deceased under the provisions of § 7871, subd. 2, Comp. Laws 1913. Objection was likewise made by the appellant to the testimony of the husband when called for cross-examination by the respondents.
Laura Anderson, one of the interveners, and a witness for the respondents, testified that when the deed was executed, her mother, the deceased, took the same home with her and put it in the little tin box mentioned, and that there, from time to time afterwards, she saw it when she had occasion to open it with and for her mother. Ella Baldwin, another of the interveners, and a witness for the respondents, testified that she saw this deed several times, commencing in the fall of 1909, in this tin box when she would help her mother open this box.
Objection was likewise made by the appellant to the competency of these witnesses to so testify under the provisions of the section quoted. This testimony substantially covers the direct testimony in the record of delivery or nondelivery of the deed in question by the deceased to the appellant.
We are clearly of the opinion that the objections so made to the competency of these witnesses to so testify was good, and that the testimony in question was inadmissible. Comstock v. Comstock, 76 Minn. 396, 79 N. W. 300; Pederson v. Christofferson, 97 Minn. 491, 106 N. W. 958; McDonald v. Harris, 131 Ala. 359, 31 So. 548.
All of this testimony related to a transaction with the deceased: a transaction in which necessarily she took part, was a party thereto, and participated therein.
The very essence of the whole matter, of the title involved, was the fact of the delivery or nondelivery of the deed; or of the possession or nonpossession thereof, of which peculiarly and necessarily the deceased was not only a participant, but had direct knowledge.
[479]*479In this state, the purposes of the statute involved to prevent any party from securing an undue advantage in establishing, by his testimony, what transaction or conversation took place, when the lips of the other party are sealed by death, have been clearly expressed and continuously followed by this court. Braithwaite v. Aiken, 2 N. D. 61, 49 N. W. 419; Hutchinson v. Cleary, 3 N. D. 270, 55 N. W. 729; Regan v. Jones, 14 N. D. 591, 105 N. W. 613; First Nat. Bank v. Warner, 17 N. D. 76, 114 N. W. 1085, 17 Ann. Cas. 213; Cardiff v. Marquis, 17 N. D. 116, 114 N. W. 1088; Larson v. Newman, 19 N. D. 160, 23 L.R.A.(N.S.) 849, 121 N. W. 202; Truman v. Dakota Trust Co. 29 N. D. 456, 151 N. W. 219; Lake Grocery Co. v. Chiostri, 34 N. D. 386, 158 N. W. 998.
Likewise, the testimony offered concerning the possession of the deed by these witnesses, who were incompetent to testify directly concerning the delivery of the deed, was inadmissible for the reason that it could be so introduced only for the puipose of establishing a state of facts from which a delivery or a nondelivery of the deed might be inferred. Regan v. Jones, 14 N. D. 591, 105 N. W. 613; Wall v. Wall, 139 Ga. 270, 77 S. E. 19. See note in 45 L.R.A.(N.S.) 583.
The fact that the husband, the defendant, was called so to testify by the wife, the plaintiff, as an adverse party for cross-examination under the statute, did not bring such witness without the statute, for it is plain to ■see from his testimony and his attitude in this whole record that his testimony and his interest were antagonistic to the interest of the estate., First Nat. Bank v. Warner, 17 N. D. 76, 114 N. W. 1085, 17 Ann. Cas. 213.
The further fact that this defendant, the husband, was later called as an adverse party for cross-examination under the statute, by respondents, and further testimony elicited from him concerning this transaction with the deceased, did not render the witness or his testimony in this regard competent under the circumstances disclosed by the record; for this witness was first called by the plaintiff and this incompetent testimony elicited. Apparently the respondent did not consider him their witness so that they should take him or ask the court for permission to question him, as if upon redirect examination; following the rule laid down in Fawcett v. Ryder, 23 N. D. 20, 135 [480]*480N. W. 800, 3 N. C. C. A. 153, and in Luick y. Arends, 21 N. D. 614, 132 N. W. 353.
They sought, therefore, to examine him upon these matters by calling him as an adverse party for cross-examination under the statute, and to his testimony given concerning this transaction with the deceased, the appellant seasonably objected. We are of the opinion that the witness still remained incompetent for the purposes of the testimony so adduced.
It is therefore clear that, with this incompetent testimony eliminated, there is no such clear and satisfactory evidence shown which is requisite to establish the delivery of the deed. McManus v. Commow, 10 N. D. 340, 87 N. W. 8.
In any event we are further satisfied from the entire record as it is that the proof is not sufficiently clear and convincing to warrant this court in finding that there was a delivery of the deed or in disturbing the finding of the trial court in that regal’d.
In this respect, it is deemed proper to suggest to the trial courts and to the bar of this state that in the trial of cases under the so-termed Newman Act, it is the duty of the bar to carefully refrain from introducing into the record evidence which clearly is incompetent, immaterial, or irrelevant, or otherwise inadmissible, and the trial court may properly indicate during the course of the trial in the record the admissibility of such testimony, but not by ruling thereupon, so that the counsel in the case may then be advised of the trial court’s view on the matter, and that their attention may be called thereto, in order that this court upon review may exercise its authority for the imposition of a penalty whenever from the record it may appear proper so to do.
However, we do find error in the findings of fact and conclusions of law of the trial court which require a modification of the judgment there rendered.
On May 14, 1918, the trial court made an order substituting S. W. Baldwin, administrator of the estate of the deceased with the will annexed in place of the defendant John Druey, as executor.
In the findings, conclusions, and judgment, the trial court quieted title in premises involved in the interveners, the heirs at law, without [481]*481any reference to the right or interest of the executor therein as a representative of the estate and of its administration.
In this regard the trial court erred. The judgment herein should provide for the quieting of title in such heirs at law and in the executor or administrator thereof, for purposes of administration.
The executor was, and the administrator is, a party to this action. By the statute and by the law of this state, an executor or an administrator has the right to the possession of the realty of estate pending administration. The heirs cannot disturb him in this possession; he may maintain an action to quiet title or to determine adverse claims. The judgment where he is a party should not ignore this right. Comp. Laws 1913, § 8797; Blakemore v. Roberts, 12 N. D. 394, 96 N. W. 1029; Berry v. Howard, 26 S. D. 29, 127 N. W. 526, Ann. Cas. 1913A, 994.
Accordingly, this cause is remanded to the trial court with instruction to modify the judgment pursuant to this opinion; neither party shall recover any costs on this appeal.