dissenting.
Though Robert McCullough devised the land specified herein, subject to the life estate of his wife, to the “Congregational Seminary at Forest Grove in Washington County, State of Oregon,” and plaintiff’s corporate name is the “President and Trustees of Tualatin Academy and Pacific University,” we are satisfied that it was his intention to designate the plaintiff as the object of his bounty. The testimony shows that plaintiff’s seminary is the only academy at the place specified, and that its university is and was at the time the will was executed conducted by the religious denomination mentioned.
1. If a corporation can be identified by the location of its building, any mistake or omission of its name will not defeat a testamentary donation of property to it. Page, Wills, § 539; Jacobs, Executor, v. Bradley, 36 Conn. 365; Missionary Society v. Nead, 131 Ill. 33 (23 N. E. 603); Reilly v. Union Prot. Infirmary, 87 Md. 664 (40 Atl. 894); Minot v. Boston Asylum, 7 Metc. (Mass.) 416; Trustees v. Peaslee, 15 N. H. 317.
2. As a testator’s intention is the pole star in the construction of the terms of his last will, when considered in its entirety, we concur in the finding made by the trial court that it was the purpose of Robert McCullough to bestow the residue of his property in the manner indicated, and that the location of the seminary and the *503specification of the denomination conducting it, as given in his last testament, sufficiently identify the plaintiff.
We do not agree, however, with the court’s findings respecting the effects of the decree of foreclosure in the suit instituted by Kees for that purpose, nor with its conclusions as to the money remaining due after the sale of the mortgaged premises, the payment whereof is a condition precedent to the right of redemption for which purpose, in our opinion, this suit was instituted.
3. It will be remembered that, anticipating a defense, the averment is made in the complaint, upon information and belief, that Robert McCullough never executed a mortgage to secure the promissory note for $700 given August 25, 1891. “It,” says a noted author, is reasonable that the one who asserts a fact necessary to the claim or defense should prove such fact; and in the great majority of cases it will be found that the fact to be proved is a proposition affirmative in form. But it is well settled that whoever asserts a claim or defense which depends upon a negative must, as in other cases, establish the truth of the allegation by a preponderance of evidence.” Jones, Ev. (2 ed.) § 180. No testimony was given by plaintiff tending to prove that McCullough did not execute the mortgage to secure the payment of the promissory note for $700. Defendants, however, offered in evidence a copy of the complaint in the foreclosure suit, containing an averment of the making and delivery of that mortgage and the loss thereof without being recorded, which pleading purports to have been subscribed and sworn to by Kees before a notary public. This averment and the decree based thereon, a copy of which was offered in evidence, though not binding in the original suit on the plaintiff herein, afforded some proof respecting the issue.
The testimony of J. K. Weatherford is to the effect that a copy of the $700 note offered in evidence is in his handwriting, purporting to have been signed by McCul*504lough and Talbott, and he states upon oath that in order to make the transcript which was presented for allowance to the representative of McCullough’s estate, April 24, 1893, he must have had the original note in his possession, though he did not remember the fact.
All the parties to the mortgage are dead except Mrs. Talbott, and such being the case, when the defendants produced authenticated copies of the complaint, decree, etc., in the foreclosure suit and a copy of the note referred to, they offered the best evidence obtainable which, in view of the averment of a negative in the complaint, respecting the security of the $700 note, is sufficient to establish the validity of that mortgage.
4. By failing to make plaintiff a party to the foreclosure, the fee to the part of the land of which McCullough died seised was evidently considered as vested in his widow, for the complaint therein states in effect that since executing the mortgages he had died, leaving the defendant Lavina M. McCullough, surviving as his sole heir at law. Under the decree of foreclosure the purchasers of tracts numbered 3, 4, and 5 obtained a title in fee to only an undivided half thereof, and also Mrs. McCullough’s life estate which terminated October 28, 1900, when she died. The plaintiff’s title to the other undivided half of the lands not having been extinguished by the foreclosure, the deeds executed pursuant to the decree, purporting to convey such estate, operated as an equitable assignment pro tanto of the mortgage, by which the purchasers of the premises and their grantees become subrogated to all the rights of Kees and are mortgagees in possession of plaintiff’s interest. Cook v. Cooper, 18 Or. 142 (22 Pac. 945: 7 L. R. A. 273: 17 Am. St. Rep. 709); Miner v. Beekman, 50 N. Y. 337; Bryan v. Brasius, 162 U. S. 415 (16 Sup. Ct. 803: 40 L. Ed. 1022).
“The party offering to redeem,” says Mr. Justice Bradley in Collins v. Riggs, 14 Wall. 491 (20 L. Ed. *505723), “proceeds upon the hypothesis that, as to him, the mortgage has not been foreclosed and is still in existence; therefore he can only lift it by paying it.” To the same effect, see, also, Flanders v. Aumack, 32 Or. 19 (51 Pac. 447: 67 Am. St. Rep. 504); Williams v. Wilson, 42 Or. 299 (70 Pac. 1031: 95 Am. St. Rep. 745); Brand v. Baker, 42 Or. 426 (71 Pac. 320); Kaston v. Storey, 47 Or. 150 (80 Pac. 217: 114 Am. St. Rep. 912); Marquam v. Ross, 47 Or. 374 (78 Pac. 698: 83 Pac. 852: 86 Pac. 1); Jackson v. Lassas, 49 Or. 470 (90 Pac. 904). The defendants who are owners of an undivided half of the premises are purchasers under the decree of foreclosure, and, though they are tenants in common with plaintiff, their titles were secured by a suit in invitum, and, such being the case, they are not in privity with either of the mortgagors, nor are they liable for the payment of any part of the mortgage debt, while plaintiff, as the successor of McCullough, though not liable beyond the value of its interest in the land, must, in order to redeem, pay the remainder due on the mortgage. It would have been to plaintiff’s advantage if the mortgaged premises had been sold by the sheriff at the highest price obtainable in order to reduce as much as possible the sum to be paid in a suit to redeem. The testimony shows that plaintiff was notified of the foreclosure suit, but did not intervene, probably because at that time the value of the land was no greater than the sum of money for which it was sold. When the worth of such lands has very much appreciated, plaintiff should not now be subrogated to the rights of the defendants by redeeming the entire premises, but limited to a restoration of the' estate morgaged by its devisor by complying with the terms hereinafter stated.
The payments that have been made since the foreclosure decree was given must be considered, an item of which is the value of the life estate when it was sold. At that time Mrs. McCullough was 72 years old and had *506a right by her husband’s last will to the rents, issues, and profits of the premises. The fee, in which she had a life estate, purported to have been sold for $450 or one-half the sum bid at the sheriff’s sale, and she would have been entitled to interest on that sum at 6 per cent, the legal rate, or an annual revenue of $27 during her life, in lieu of the rents, etc. This yearly income multiplied by 5.42378, the number representing the value of an annuity of a single life of a person of Mrs. McCullough’s age (Giauque & M. Pres. Val. Tables, p. 15), gives $146.44 as the worth of her vested interest August 4, 1894, when the premises were sold under the decree.
It will be remembered that on June 27, 1894, Kees recovered the respective amounts of the notes, $746.37 and $828.50, besides attorney’s fees and costs and disbursements. On August 4, 1894, the premises were sold under the decree for $900, from which sum was deducted accruing costs.
5. The plaintiff was not a party to that suit, and for that reason is not responsible for or to be charged with any of the costs incurred therein, or attorney’s fees, or the expenses of the sale. Wiltsie, Mort. Foreclos. § 261.
6. There should be credited on the mortgage debt the estimated value of the property and rights obtained by the sheriff’s deed, viz., Mrs. Talbott’s fee in the premises, $450, and the then present worth of Mrs. McCullough’s life estate, $146.44, or $596.44. The decree was rendered June 27, 1894, and the sale occurred August 4th of that year. The interest should be computed on the mortgage notes from the time they were severally given, less the partial payments as they were made until the time of the sale under the decree; but as that calculation is difficult from the evidence before us, and as the compound interest for the time stated is so small, the sum awarded, $1,574.87, will be considered as at interest at 10 per cent per annum from the time of the decree to that of *507the sale, thereby earning $16.18 and amounting to $1,591.05. Deducting the payment of $596.44, there remained $994.61, which at interest from August 4, 1894, to May 16, 1895, at the same rate, gives for the use of the money for that time $77.91, amounting to $1,072.52. Kees on May 16, 1895, received from the purchasers of tract numbered 2 the sum of $350, which was due on the bond for a deed given by McCullough and Talbott. This piece of land was included in the mortgage which was executed prior to the giving of the bond for a deed, and in the suit of foreclosure such purchasers, having been made parties, appeared and filed answers. The foreclosure decree recites that these answers were withdrawn by stipulation. In a suit for a specific performance, the purchasers of tract numbered 2, upon the payment of $350, the remainder due on the bond for a deed, could have secured a decree conveying the title, notwithstanding McCullough’s death and the probate of his last will devising the residue of his property to plaintiff, but the title to the premises which could thus have been obtained would have been subject to Kees’ mortgage which was prior to the execution of the contract to convey. So too in the foreclosure suit these purchasers by answering might have set forth their interest in the tract of land and could have obtained a decree of similar import; but it would have been subordinate to Kees’ paramount right which would have been protected in his decree.
It is needless to speculate whether or not the defendants in the foreclosure suit, who were the obligees, in the bond for a deed made an agreement with Kees that in consideration of withdrawing their answer he would secure a title by a decree and sheriff’s deed to the entire mortgaged premises and execute to them a deed to their tract of which they were the equitable owners, upon the payment of $350 remaining due on their contract of purchase, for as this money equitably belonged to Mrs. Tal*508bott and to the McCullough estate and was paid to Kees, evidently without objection in order to perfect the title, it should be credited on the mortgage indebtedness.
7. No allowance, however, should be made for the sum of $1,200 received by Kees for a conveyance of tracts numbered 8 and 4, nor for $100 which he obtained for executing a deed to tract numbered 5, for prior to granting such interests he had secured the sheriff’s deed for all the mortgaged premises, and, as no part of such sums was payable either to Mrs. Talbot or the McCullough estate, whether he was paid an adequate consideration for his interest in these tracts or made donations thereof is immaterial.
Deducting from $1,072.52, the amount of the mortgage debt May 16, 1895, $350, the balance due on the bond for a deed, there remained owing at that time $722.52. Computing interest thereon at the rate of 10 per cent per annum from May 16, 1895, to July 5, 1911, when this opinion was handed down, it is found to be $1,165.86, which added to principal amounts to $1,888.38 as the sum due on the mortgage indebtedness and necessary to be paid by plaintiff as a condition precedent to the right of equitable redemption.
By awarding to plaintiff an undivided half of tracts numbered 3, 4, and 5, the value of the present mortgage security thereon is necessarily impaired, and to compensate the mortgagees in part for their loss of indemnity the sum of $1,888.38 now found to be due Ida B. Jones, Emma A. Keene, and Charta O. Zimmerman or hereafter ascertained to be due them on account of permanent improvements, etc., must be paid by plaintiff to the defendants Lafayette Townsend, Mamie L. Burkhart, and Samuel M. Garland according to their respective interests represented by the security held by each at the time of such payment, as compared With the relative values of such tracts August 4, 1894, when they were sold by the *509sheriff. From the evidence before iis it is impossible accurately to determine the value at that time. The worth of the entire lands specified in the sheriff’s deed must be regarded as $900, and this sum must be apportioned to the several tracts in the ratio of their respective values August 4, 1894, which fact must be determined from testimony to be taken upon issues of interpleader between the several groups of defendants.
If within 60 days plaintiff pays to the clerk of the lower court $1,888.38 irrevocably to be distributed to the defendants who may be found entitled thereto, a redemption will be initiated, which right shall become perfected when plaintiff pays to such mortgagees or owners, as the case may be, the worth of one-half of all permanent improvements made upon the respective tracts since they were sold under the decree of foreclosure, and also one-half of all taxes imposed thereon and paid by the defendants since the death of Mrs. Lavina H. McCullough, less one-half the value of the rents, issues, and profits received since that time, and also less one-half the worth of any wood or timber cut and removed from the premises.
Unless the sum of $1,888.38 is paid within the time specified, the mortgages which were undertaken to be foreclosed will be strictly foreclosed (Wiltsie, Mort. Foreclos. § 160), and plaintiff and all persons claiming by, through, or under it will be barred of all right, title, claim, interest, or estate in or to the lands and every part thereof.
The decree of the lower court will therefore be modified as herein indicated, and the cause remanded, and, if such payment is made within the time limited, a supplemental decree will be given conformable to findings to be made on such settlement; the defendants to recover their costs in this court. Modified.