Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-11

heenPs tt di5 Llllu NVuhtys
The president and trusees of Tua-
latin Academy and Pacific Univers-
ity. respondent, V. Emma A. Keene,
r. G. Keene her husband, Charta o.
Zimmerman, and Florence S. Zim-
norman, his wife, Ida B. Wickham,
Lafayette Townsend, Samuel NJ. Gar
land as administrator of the estate of
NJ. L. Zigler, deceased, F. P. Bodwell,
and Ora NJ. Bodwell, his wife, Mamie
L. Burkhart, guardian, Alma L. AL
len, and E. E. Furgeson, Belle c.
Ferguson and ]. A. Ruyter, partners
doing business as Ferguson & Ruy-
ter, appellants. Appeal from the
circuit court for Linn county. Hon.
William Galloway, Judge. Argued
and submitted June s, 1911. Milton
W. Smith for respondent. H. H.
Hewitt for appellants. Moore J.
Modified.
This suit involves a controversy
relating to the foreclosure y real
estate mortgage. The facts are that
on November 1, 1887, Robert McCul-
Tough and c. NJ. Talbot gave to ia
cob Kees their promissory note for
$500, maturing in one year with in
terest at the rate of 10 per cent per
annum until paid The note con-
tanned a stipulation that if suit
should be commenced to collect any
part of the sum named, the makers
would pay reasonable sum as at
torney's fees. In order to secure the
payment of the debt Mccullough and
Talbot and their wives executed to
KEGS a mortgage of all the north
half Of the donation claim of VIM.
Klum and wife in Linn county, ex-
cept about so acres thereof which
had been conveyed to Ezra Fisher.
The mortgage was duly recorded and
at the time it was given Mccullough
and Mrs, Talbot, as tenants in COM
mon, were the owners in fee of the
premises. Mccullough died testate
December 13, 1892 and his last will
having been admitted to probate con-
tanned clause as follows. 81 give,
devise and bequeath the use of all
the residue of my property both real
and personal to my beloved wife, La
vina H. Mccullough during her nat
ural lifetime and to be disposed of
as my executor in his judgment, the
probate court concurring, think best
and at the death of my wife, Lavina
II. Mccullough, all that remains OF
my property shall go to the Congre-
gational Seminary at Forest Grove in
Washington county, state of Oregon
The plaintiff herein is a corpora
tion as the President and Trustees
of Tualatin Academy and Pacific Uni
yersity' at the time the will was
made was engaged in conducting q
Congregational Seminary at Forest
Grove Washington county, Oregon
and is and was known by the latter
name and also by its corporate title
Without making the corporation a
party KEGS commenced suit tc
toreclose the lien of his mortgage. al
leging as second cause of suit that
on August %, 1891, Talbot and Nc.
Cullough gave him another promis.
sorry note for $500, maturing in q
year with interest at the rate of II
per cent per annum until paid; thai
the note stipulated for the payment
of a reasonable sum as attorneys
fees in case suit were instituted tC
collect any part thereof that to Sc
cure the payment of that note III,
makers thereof and their wives. ais,
executed to him second mortgage O
the same premises, but such scale,
instrument after due and diligen
search could not be found. was los
and never had been recorded A de
cree was rendered in that suit estah
fishing the second mortgage. fore
closing both and awarding to Kee
on the note executed November /
1887, the sum of S746,37 and $50 a,
attorneys fees and on the note give,
August 25, 1891, SS2S.5O and $50 A,
attorneys fees besides $S45O as cost
and disbursements with interest OF
the amount Of each note from Jun,
~ 1894, when the decree was given
until paid at the rate Of 10 per cen
= per year and interest at the rate O
u eight per cent on the sums awarde,
as attorneys fees Pursuant To m,
decree the premises were sold as Al
entirety August 4, 1894 to KEGS To-
$500 and after deductiug therefron
SSl4O, as aocruing costs, the remain
der was credited on account Of III,
Judgment The sale having been dul,
confirmed and no redemption mad,
or offered, the sherift executed to m,
, purchaser a deed OF the premises.
Prior TO the making Of the will
Mccullough and Talbot and that