Burke

In April, 1913, Burke and Ferris, appellees, brought suit to foreclose a mortgage given by Mountain Timber Company to secure' certain promissory nptes executed by the Mountain Timber Company for $32,500. The mortgage covered a tract of timber land in Cowlitz county, Wash. Two notes, each for the sum-of $16,250, were given. One note matured February 3, 1911, and the *882 other February 3, 1912. No part of the notes had been paid. By the mortgage the Timber Company agreed with D. L. Kelly and his assigns that any timber cut by the Timber Company, or its assigns,' on any of the lands mortgaged, before full satisfaction and payment of the mortgage, should be paid for to Kelly, or his assigns, at or before the time of cutting the timber, at the rate of $2.50 per thousand feet, according to prescribed method of scaling, and that payment so made should apply upon the amount due upon the mortgage.

The complaint alleged, among other things, that the chief value of the premises was the merchantable timber standing thereon; that the defendant had cut quantities of timber from the premises without making payment on account thereof; and that at the time of the commencement of the suit…