ham v. Ware, 79 Ala. 192; Whetstone v. McQueen, 137 'Ala. 301 (34 South. 229); Howard v. Clark, 72 Vt. 429 (48 Atl. 656).

6. In the instant case these latter authorities do not apply. The defendant had no right to suppose that he was the owner of the property in fee or that he was otherwise than a mortgagee in possession. His own answer in the original case routs him from that position for there he said in speaking of the matter in controversy:

"That, for the purpose of avoiding the additional expense and trouble of a foreclosure, it was mutually agreed by and between them the defendant and the said Caro Bros. that, in consideration of the said Caro Bros. executing and delivering unto defendant a good and sufficient warranty deed to the aforesaid premises, thereby saving the costs, and expenses of a foreclosure *suit, defendant would extend the time for redemption on said mortgaged premises for a period of four years from said 22d day of July, 1895, and it was mutually agreed by and between the parties that if the plaintiff and said Isadore Caro, partners as Caro Bros., would pay to the defendant the full sum of $16,610, with interest thereon at the rate of 8 per cent together with all taxes assessed against said premises, within four years from said 22d day of July, 1895, then this defendant would reconvey said premises to said Caro Bros., and that said Caro Bros. might occupy said premises during said extension period and collect the rents from the subtenants, but if said Caro Bros. failed to pay the interest as aforesaid annually, or pay the entire sum of principal, interest, and taxes within four years, then they should surrender the possession thereof to defendant, and said contract should be null and void."

The defendant must have known that the instrument under which he took possession was a mortgage "for he himself hath said it."

Without variation from Thompson v. Marshall, 21 Or. 171 (27 Pac. 957), to the present time, the courts of this state have held that such an instrument is a mortgage whatever the parties themselves may have styled it. Wherever a conveyance is fettered with a condition allowing the grantor to redeem the premises, the stamp of "mortgage" is indelibly placed upon the transaction. It is said in Section 422, L. O. L.:

"A lien upon the real or personal property, other than that of a judgment or decree, whether created by mortgage or otherwise, shall be foreclosed, and the property adjudged to be sold to satisfy the debt secured thereby by a suit. In such suit, in addition to the decree of foreclosure and sale, if it appear that a promissory note or other personal obligation for the payment of the debt has been given by the mortgagor or other lien debtor, or by any other person as principal or otherwise, the court shall also decree a recovery of the amount of such debt against such person or persons, as the case may be, as in the case of an ordinary decree for the recovery of money.

See, also, Section 335, L. O. L., declaring that:

"A mortgage of real property shall not be deemed a conveyance so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale according to law."

7. This section is an emphasis of the principle that a mortgage does not convey title. The defendant cannot say that he was ignorant of the thoroughly established law of the state laid down in the original opinion in this suit and followed by the uniform line of decisions. The law imputes to him a knowledge that without foreclosure he could not acquire the title of the mortgagor. Indeed, the statute expressly requires foreclosure.

83 Or.-21

8,9. It is true that it is competent for a mortgagor to convey his interest in the mortgaged realty to any one absolutely, and none the less to the mortgagee; but it must be by a deed executed with the statutory formalities and without any condition whatever permitting redemption. No such showing has been made in this case on behalf of the defendant in any respect whatever. By the consensus of authority, therefore, he was not a purchaser in good faith, but purely and simply a mortgagee in possession and, if he would acquire the title must either get an absolute conveyance from the mortgagor or proceed to foreclose his mortgage lien. We conclude, therefore, that the defendant is not entitled to recover anything for the permanent improvements mentioned.

The plumbing contested by the plaintiffs was said to have been done by one W. H. Carroll, who died before the trial. It appears in evidence that the defendant has about twenty buildings of different kinds in Roseburg, all of which required more or less plumbing from time to time. He testified that he kept no separate account for the buildings involved in this suit. He says he caused plumbing to be installed in those. structures but he does not pretend to be able to give of his own knowledge its amount or value. The only attempt at proof on this point was the offer of a statement made from the decedent's books by his father who did not regularly keep them and only made an entry therein now and then at long intervals. The books themselves were not offered in evidence and are not before us. They were not authenticated by any one who kept them or had knowledge of their correctUnder such circumstances even they would not be admissible in evidence in any event. Beyond that, it is said in Section 790, L. O. L.:

ness.

"The entries or other writings of a like character of a person deceased or without the state, made at or near the time of the transaction, and in a position to know the facts stated therein, may be read as primary evidence of the facts stated therein, in the following cases: (1) When the entry was made against the interest of the person making it; or (2) when it was made in a professional capacity, and in the ordinary course of professional conduct; or (3) when it was made in the performance of a duty specially enjoined by law."

10, 11. It is plain that the first instance is the only one possibly applicable in the present juncture, but in order to be admissible the entry must be made against the interest of the person making it. The charges made by Carroll, however, against Wollenberg would not be against the interest of the person making them, but rather in his favor; and hence the entries themselves would not be competent evidence under the statute. Much less would a mere unverified transcript of his books be admissible: Harmon v. Decker, 41 Or. 587 (68 Pac. 11, 1111, 93 Am. St. Rep. 748); Manchester Assur. Co. v. Oregon Railroad Co., 46 Or. 162 (79 Pac. 60, 114 Am. St. Rep. 863, 69 L. R. A. 475); Lintner v. Wiles, 70 Or. 350 (141 Pac. 871); Hoover v. Gehr, 62 Pa. 136; Robinson v. Dibble, 17 Fla. 457.

12-14. In some instances there appear in the record what purport to be receipted bills from Carroll for some expenditures, but it is well settled that receipts of third parties constitute hearsay and are not to be received in evidence: Ellison v. Albright, 41 Neb. 93 (59 N. W. 703, 29 L. R. A. 737). The doctrine governing that matter is that the receipt of one not occupying any official relation to the transaction is, in the first place, a declaration not under the sanction of an oath, and second, that the person making it is not presented

for cross-examination by the adverse party. Receipts required by law, as for public taxes and the like, constitute a manifest exception to the rule. Under these principles, therefore, the defendant failed to prove his charges for plumbing performed by the deceased Carroll. There were other items of the same nature for work performed by another man, but his statement of the same was admitted without objection on the part of the plaintiffs and hence they must stand.

15. There is but little dispute about the receipts from the property and we find from a careful examination of the testimony and correction of mistakes in addition that the total income received from the mortgaged realty from August 1, 1899, to December 1, 1914, amounts to $34,952. The total disbursements allowed for the same period are $12,323.63. Under the principles of law which we believe are sustained by a great weight of authority and the evidence, we have rejected $2,636.21 of the defendant's claim for expenditures. Under the procedure approved in Lynch v. Ryan, 137 Wis. 13 (118 N. W. 174, 129 Am. St. Rep. 1040, 1043, and note), and other authorities we have computed the interest at 8 per cent per annum with yearly rests, applying, as partial payments, the net income of the property for each year, closing the calculation of interest at January 1, 1910, as that is the law of the case on account of the defendant not having appealed. The result is that the amount due January 1, 1910, was $14,810.52. From this we deduct the net returns. accruing between that date and December 1, 1914, amounting to $7,586.35, leaving a balance then due in the sum of $7,224.17. This closes the account as of that date and owing to the length of time since then elapsing, amounting to more than two years it is neces