Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-10

Cullough." The plaintiff also AYERS
that it is ready, willing, and able to
pay such sum, If any, as may be
equitably due and chargeable against
the undivided half interest of said
premises described in this complaint,
owned by the plaintiff, but plaintiff
has beR unable to learn or ascer-
tain what amount, if any, is charge
able against plaintiffs said interest in
said premises, or to which of the de-
PENDANTS such payment should be
made; that a discovery and account
ing is necessary in order to deter
mine what amount, If any, is charge
able against plaintiffs said interest
in said premises on account of any
taxes paid thereon by said defen-
dants, or either of them, since the
death of the said Lavlna H. McCul-
Tough and to determine what portion
of said premises defendants, or any
thereof, have been in possession of.
and what they have received from the
rents, issues, use, occupation, or pro-
fits of such portions subsequent to
the death Of the said Lavina H. Nc
Cullough," and prays that its title to
the undivided half interest, formerly
owned by the said Robert McCul-
Tough be declared established; that
an accounting may be had between
the plaintiffs and the defendants
herein to determine what amount, If
any, plaintiff should pay to defen-
dants, and to which of the defendants
such amount, or any portion there
of, Is payable; that upon payment Of
such amount, if any be found due to
the defendants, each and all defen-
dants may be adjudged to have no
right, title, interest, lien, or claim, or
estate whatsoever against plaintiffs s
undivided one-half interest in said
premises; that they be enjoined and
restrained from claiming, or attempt
ing to claim, any estate, right, title,
lien, or interest in the premises; that
the mortgage first above referred to
be cancelled, and that the defendants
who failed to appear shall be ad-
| judged to have no estate in the
lands" The plaintiff claims that it
is the residuary devisee under the
will of Mccullough, and that he in
tended the designation of "Congrega-
tional Seminary of Forest Grove" to
apply to the plaintiff herein.
The widow of the testator had
been dead nearly six years when this
suit was commenced. The defen-
dants answered, giving the history OF
their title, deraigning the same from
Jacob KEGS, under his sheriff's deed
and alleged that they had been in
possession, claiming to own the prop
erty under color of title, adversely to
all persons, for more than 10 years
The cause being at issue, the circuit
court rendered a decree in favor oi
the plaintiff, in substance, that it Is
the owner in fee and entitled to the
possession, use, and enjoyment of ar
undivided half interest in the prem
ises, free of all encumbrance, ant
barred the defendants from claiming
any interest in the same. From this
decree, the defendants have appealed
Burnett, J. The bill has some o.
the aspects of a complaint to deter
mine an adverse interest in lands
under Lords Oregon Laws Sec. SIC
as indicated by the extract quoted
above, but it cannot be entertained al
such, because it fails to allege tina
the land is not in actual possession
of another. 1t is contended in th
argument on the part of the plaintiff
that it is a suit against the defen
: dants as co-tenants with the plain
. tiff for an accounting for the rent
: and profits, but it nowhere alleges