In Error to tire Circuit Court of the United States for the District of Oregon.

Action at law by Sallie Bilger against Jeremiah Nunan and O. Harbaugh. Judgment for defendants, and plaintiff brings error.

This is an action in ejectment, brought by Sallie Bilger to recover possession of an undivided one-sixth interest in and to a tract of land in Jackson county, Or., described as containing 292 acres, but excepting therefrom a small tract of 3 acres deeded to a third party, with respect to which there is no issue. Plaintiff is the daughter of James A. Cardwell, deceased, and claims title and right of possession under a will executed by him February 18, 1890. The defendant Jeremiah Nunan claims title and right of possession: (a) By virtue of a sheriff’s deed to defendant, executed in pursuance of a decree and order of sale obtained under the foreclosure of a mortgage executed by Caroline Cardwell, the widow of James A. Cardwell, ■ upon the real property in controversy, (b) By the right of a mortgagee in possession. The defendant Harbaugh claims no right, title, or interest in the premises other than that of a tenant under the defendant Nunan.

J. A. Cardwell, a resident of Jackson county, state of Oregon, died at Jacksonville, Or., on the 16th day of April, 1S90, leaving an estate of real and personal property, shown by the inventory and appraisement to be of the value of $17,500, of which the personal property was appraised at $2,500, and the real property at $15,000. The real property is the subject of this litigation. At the time of his death Cardwell left his last will and testament as follows:

“I, James A. Cardwell, of Jackson county, state of Oregon, being of sound and disposing mind and not under any restraint whatever, do make, publish and declare this my last will and testament, namely, I give, devise, and bequeath to my wife, Caroline Cardwell, all of my property and estate, both real and personal, of every kind of which I shall die possessed, to have, hold, use and dispose of as she may see fit during her life, hereby giving her full power and authority to sell, convey, deed and transfer all or any part of said property fully and absolutely so as to pass complete title to purchasers or grantees from her as she may see fit.

“And it is my will that whatever of my said property and, the proceeds thereof which remains in the hands of said Caroline Cardwell at her death shall go to our daughters, hereinafter named.

“On account of our daughter Medora L. Berry and her husband having heretofore left some property with me which entitles her to more of my estate than the others it is my will that she shall receive, out of what remains undisposed of at the death of my wife, the sum of two hundred and fifty dollars, and the rest of whatever so remains shall be divided equally among my daughters Medora L. Berry, Maria Kahler, Sallie Bilger, Della Dink, Bose Cardwell and Laura Cardwell, share and share alike.

“And inasmuch as my sons. Alvin 15. Cardwell, O. 1). Cardwell and Wm. W. Cardwell, have already received advancements and pecuniary assistance from me equal to their shares of my estate, they are not to receive any portion of my estate under this will.”

This will was duly proved and admitted to probate, and Caroline Cardwell was duly appointed (on Juñe 9, 1890) the executrix, and on June 27th qualified as such executrix and entered upon the discharge of her trust, and during her lifetime acted as such executrix. At the time of the death of James A. Cardwell he was indebted to defendant Jeremiah Nunan, for goods, wares, and merchandise furnished for and used by Cardwell and his family, in the sum of about 8759.99. In the semiannual account of the executrix, showing the claims that had been presented against the estate, was the claim of Nunan for the sum of $759.99. This report was received by the court and approved on February 22, 1892. Subsequently Nunan furnished the executrix, at her instance and request, other goods, wares, and merchandise aggregating the additional sum of about $511.42, and on February 8, 1892, the claim of Nunan aggregated the value of $1,301.41, including the pre-existing claim so presented by him against the estate and allowed by the court. Caroline Cardwell thereupon gave her promissory note to Nunan to cover this indebtedness, and at the same time executed and delivered to Nunan a mortgage upon the real estate in controversy, which mortgage was duly acknowledged and recorded in the office o± the county recorder for Jackson county.

Thereafter, this promissory note having become due and being wholly unpaid, principal and interest. Nunan, on March 16, 1894, commenced a suit in the circuit court of the state of Oregon for Jackson county for the .foreclosure of the mortgage, by filing his complaint therein. On September 25, 1894, a decree of foreclosure and judgment was duly entered in said court against Caroline Cardwell in favor of Nunan for the sum of $1,657.12. On September 28, 1894, execution was issued, and on October 3, 1894, the sheriff made a levy and seizure of the land and premises described in the complaint, and on November 3, 1894, the property was sold and bid in by defendant Nunan. This sale was confirmed, and sheriff’s deed executed and delivered to Nunan on April 15, 1895, and ever since the execution and sale he has been in the undisputed and absolute possession of the premises, except a small tract conveyed to a third party, with respect to which there is no issue.

Prior to any of the transactions heretofore mentioned, and on the 8th day of March, 1881, Cardwell and his wife, for a valuable consideration, executed and delivered to the Board of Commissioners for the sale of school and university lands, and for the investment Of the funds arising therefrom, a mortgage conveying the premises in controversy, and certain other property owned by the said Cardwell, to secure the payment of a certain promissory note, dated March 8, 1884, for the sum of $4,160, payable one year after date to the said Board of Commissioners, with interest thereon at the rate of 8 per cent, per annum until paid. This mortgage was duly acknowledged and recorded as required by law. On February 12, -1895, no portion of the principal or interest of said note and mortgage having been paid, and the whole suln being fully due and owing, tbe defendant Nunan, for tbe purpose of protecting his rights and interests in said premises, paid said note, in the sum of $4,160 and interest, making in all the sum of $5,189.82, and obtained a release of said mox’tgage, duly executed by the said Board of Commissioners.

On March 26, 1896, Caroline Cardwell died, leaving the estate unsettled. Thereafter the plaintiff in error here (being one of six heirs at law of James A. Cardwell) and other residuary legatees under the will brought separate actions in ejectment to recover the property in controversy.

On March 18, 1910, the complaint in this action was filed in the Circuit Court of the United States for the District of Oregon by Sallie Bilger, alleging, among other things, that plaintiff was a citizen and resident of, and domiciled in, the state of Washington; that defendants were citizens and residents of, and domiciled in, the state of Oregon; that plaintiff was, and had been for more than six years prior thereto, the absolute owner in fee simple of an undivided one-sixth of, in, and to the pi’operty in dispute; that defendants wrongfully withhold, and had continuously for more than six years prior to that time wrongfully withheld, the real estate of plaintiff, and the possession of the whole and every part of said property from plaintiff; that the value of the rents, issues, and profits of this property during the period of six years, and damages for the wrongful withholding of the possession from plaintiff during that time, amounted to the sum of $5,000, and 'defendants refused and neglected to pay any part of this to plaintiff. Plaintiff demanded judgment that she was the absolute owner in fee simple of an undivided one-sixth of, in, and to the property, that she was entitled to the immediate possession of the whole of said real property, and that she have and recover from defendants the possession of the same, and the sum of $5,000 damages, and'for costs.

■ An answer was filed by Jeremiah Nunan, defendant, on April 20, 1910, and an amended answer on October 4, 1910. The answer, as amended, contained a general denial of the allegations of the complaint, set up fee-simple title and right of possession in defendant in error, and pleaded the statute of limitations, the making of permanent betterments, improvements on said lands, at a cost-of $1,617, the payment of all taxes, amounting to $1,916.33, the holding of possession of the premises under the judgment entered upon the mortgage foreclosure, and payment of the principal and interest of the prior school and university mortgage, amounting to $5,1S9.S2, heretofore referred to, and that defendant in error was a mortgagee in possession.

The cause was tried before the court without a jury. Findings of fact and conclusions of law were filed May 29, 1911, and judgment was entered the same date, in which it was adjudged that plaintiff was not entitled to-the possession of the premises described in the complaint, but that defendant Nunan was the owner in fee simple and entitled to the exclusive possession of all of said premises, except a certain conveyed portion. The -case is brought to this court by writ of error to reverse the decision of the Circuit Court for the District of Oregon.