contract, as already said, was entire, and it was distinctly understood and agreed that plaintiff was not to accept the policy unless she could secure the loan. She received the policy into her possession upon a condition that the company refused to perform, and because of this failure she declined to accept it. This she had a right to do. Upon this proposition, the case of Harnickell v. Insurance Co., 111 N. Y. 390 (18 N. E. Rep. 632), is directly in point, and supports our holding. AFFIRMED. STEPHEN WALKLEY et al., Appellants, v. A. D. CLARKE et al. Evidence: CONSTRUCTION. A witness testified he purchased certain SAME. Testimony that a witness never transferred a note and mort- RE-DIRECT EXAMINATION. Where, on cross-examination, a witness was asked the date when a description was in fact inserted in a deed (the original testimony being only as to a conversation with a 7 third person concerning the insertion by witness of a description in a deed, executed by a person since deceased, to the witness), it was competent on re-direct for him to state that at the time of making the insertion deceased was present at his side, both sitting at the same table. DECLARATIONS OF ONE IN POSSESSION. Declarations accompanying the act of possession, whether in disparagement of the claimant's 5 title or otherwise qualifying the possession, if made in good 8 faith, are admissible as part of the res gestae. 2 DEPOSITIONS. An entire deposition will be regarded as in evidence where the plaintiff reads certain interrogatories and answers taken by him and omitted others bearing on the issue which were afterwards introduced by defendants. SAME. Such parts of a deposition as are offered by the opposite party 2 relating to any distinct transaction must include all said on the particular subject. SAME. A party who has introduced a deposition taken by him can2 not withdraw a part without withdrawing the entire deposition, nor withdraw the whole for the purpose of re-reading a part only. Appeal: EXCEPTIONS. One party cannot take advantage of the 6 exceptions of the opposite party. Appeal from Kossuth District Court.-HoN. GEORGE H. CARR, Judge. TUESDAY, JANUARY 31, 1899. ACTION to quiet title to forty acres of land. Decree was entered dismissing the petition, and plaintiffs appeal. -Affirmed. Clarke & Cohenour and Kinne, Hume & Bradshaw for appellants. Carr & Parker for appellees. LADD, J.-I. The plaintiffs, as heirs of Harry Walkley, who died March 2, 1893, claim to own the southeast one-fourth of southwest one-fourth of section 31, township 96 north, of range 28 west of fifth P. M., Iowa. On the 12th day of November, 1890, Walkley executed to A. D. Clarke a deed conveying the northeast one-fourth of section 11, in township 95, of the same range, and included therein is the above description. The deed was not recorded till March 15, 1893 -after Walkley's death. The sole issue of fact is whether Clarke inserted this description of the 40 acres of land in controversy in the deed after its execution, without the authority 1 of Walkley. We shall not review the evidence relating to the possession and control of the land prior to December 4, 1892, as it appears the description was inserted at that time. Different colored ink was used, and no effort made to disguise the handwriting. That the acknowledgment of the deed can have no reference to this land does not affect the validity of the instrument as between the parties to it. Nor was the execution of any deed essential to transfer the title. Code, section 4626; Hughes v. Lindsey, 31 Iowa, 332;Wickham v. Henthorn, 91 Iowa, 243. If Clarke paid for it, or went into possession, with the assent of Walkley, in pursuance of a contract of purchase, the plaintiffs should be denied the relief prayed. 2 II. The plaintiffs read in evidence certain interrogatories and answers of the deposition of F. C. Wilson, taken by them, and omitted others, bearing on the issues, which were afterwards introduced by the defendants. A party cannot be permitted to pick from a deposition, taken at his instance, those portions favorable to himself, and omit the balance. He should either read all that which is pertinent to the issues or none. This is essential to the orderly administration of justice, and is due the opposite party. Kilbourne v. Jennings, 40 Iowa, 474; Grant v. Pendery, 15 Kan. 236; Thomas v. Miller, 151 Pa. St. 482 (25 Atl. Rep. 128); Converse v. Meyer, 14 Neb. 190 (15 N. W. Rep. 340). When offered by the opposite party, such parts may be received as relate to any distinct transaction, but must include all said on the particular subject. Bank v. Rhutasel, 67 Iowa, 318; Van Horn v. Smith, 59 Iowa, 147; Calhoun v. Hays (Pa.), 8 Watts & S. 127 (42 Am. Dec. 275); Converse v. Meyer, supra. It follows, a fortiori, that, after a deposition has been introduced by the party taking it, he will not be permitted to withdraw a part-such as the cross examination-without withdrawing the entire deposition, nor will he be allowed to withdraw the whole for the purpose of re-reading a part only. The defendants had their election to have Wilson's deposition excluded, or to read the parts omitted. As they chose the latter course, we shall consider the entire deposition in evidence. Whitman v. Money, 63 N. H. 448 (2 Atl. Rep. 899). The attempt to withdraw the cross examination of Clarke will be disregarded. 3 III. The defendants rely on the evidence of Wilson and Clarke. The former testified in his deposition taken and introduced in evidence by the plaintiff that he heard Clarke admit, after the death of Walkley, the insertion of the description in the deed, and that Clarke then said "he could prove where the payments came in, who was paying in some money." He was then asked: "Q. Was anything said by Mr. Clarke at the time of that conversation that he paid Mr. Walkley part cash and part mortgage? A. Yes, sir. Q. Was there anything else said at that time as to when the payment was made by Mr. Clarke to Mr. Walkley? A. I don't recollect what was said about the time. Q. There was something said, was there? A. Yes, sir. Q. Do you remember anything being said by Mr. Clarke at that time, and as a part of the same conversation, that the consideration paid was about one thousand dollars, or a little less than one thousand dollars paid Walkley? A. I don't recollect whether the amount was stated or not. It might have been. There was some talk of cash being paid and some papers being drawn, but I can't recollect now just what it was." As administrator he found among Walkley's papers notes and a mortgage executed by F. H. Muzzy to Corbin I. Edmonds, on which he had since received six hundred and sixty-two dollars and fifty cents, and also a note of seven hundred dollars, and one of six hundred dollars signed by Clarke. The latter testified that he had purchased the Muzzy notes and mortgage of Edmonds, and that he had never transferred them to any person other than Walkley. Though made incompetent by section 4604 of the Code to testify to any personal transaction with the deceased, this was not within the prohibition of that section. McElhenney v. Hendricks, 82 Iowa, 658. He also 4 5 stated that he did not own these papers prior or subsequent to December 4 or 5, 1892. The natural infer ence to be drawn from this evidence is that on one of these days he transferred the Muzzy notes and mortgage to Walkley. Clarke also testified that, as a part of the conversation with Wilson, he stated that he bought the land of Walkley, and paid therefor in cash and the transfer of the Muzzy notes, an amount aggregating over one thousand dollars, and, that at Walkley's suggestion, to avoid preparing another deed, he inserted the description in that previously executed. This evidence was not prohibited by section 4604 of the Code, as it was not of any transaction or communication with the deceased, but related solely to a conversation with Wilson, a part of which had been proven by the plaintiffs, and the whole of which might be inquired into by the defendants. Code, section 4615; Hess v. Wilcox, 58 Iowa, 380. Doubtless declarations testified to by Clarke not limiting, qualifying or explaining those mentioned by Wilson cannot be given any weight in his favor. The very evident design of the statute is that the whole of the conversation on the same subject shall be received in order to deter mine the consideration and weight to be attached to that portion offered by the adverse party. Otherwise, declarations in favor of the party offering them might be considered. The omitted portion of the conversation is shown to the end that the part introduced by the adverse party shall be fully understood and explained. IV. The plaintiffs, on cross-examination, then asked the date the description was in fact inserted, and the defendant, in so far as responsive, answered, "Think it was about the 4th or 5th of December, 1892, to the best of my recollection." This was not cross-examination of anything brought out by the defendant, and no objection to its consideration was made at the trial. True, the defendant objected because not cross-examination when the deposition was taken, but the plaintiffs are not in a position to take advantage of the exceptions of their adversary. The defendant proposed 6 |