Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-04-18
OPINION
By Massey, j,

OPINION
By Massey, j.
The appellant instituted this actien to
foreclese mortgage, demurrer to the
complaint was interposed and sustained,
and judgment rendered in favor Of the
respondent. The appeal is taken from
the judgment and the order sustaining
the demurrer The facts shown by the
complaint are, that c. c. Powning died
intestate at Washoe County, Nevada,
about the 4th day Of November, 1898,
leaving an estate therein that on the 9th
day Of December, 1898, an order was
made by the District Court of said State
in and for said County, appointing the
respondent Administrative Of the estate
of said decedsnt, and that on said day
letters Of administration were regularly
issued to her as administrator of said
estate, and that ever since she has been
and is the appoint. qualified and
acting Administrative a. said estate;
that on the 17th q ' of December
1895, at said County OF " shoe, the said
c. e. Powning, deceased, executed aud
delivered his certain pr"miSsory note,
bearing date of that day. to the appellant
by which he promised to pay appellant
on or before June Eth, 1897, S25OO.OO at the
banking office of the Washoe County
Bank with interest at the rate Of eight
per cent per annum from date until paid,
copy Of which note is fully set out; that
to secure tho payment of said principal
sum and interest mentioned in said note
the said Powning executed under his
hand and seal and delivered to the appel
liant a mortgage bearing date of Decem
Der 18th, 1896, conditioned fer the pay
ment Of said SUI m and interest, which
mortgage was duly acknowledged and
certified and recorded on the 10Th day Of
December, 1896, in the office of the Coun-
ty Recorder of Washoe County in Book
M Of Mortgages, page 537. A copy Of
the mortgage containing description Of
the real estate covered thereby, with the
endorsements thereon, is fully set out in
the complaint,
1t is further shown that there is due
and unpaid to the appellant on said note
and mortgage the principal sum and in
terest thereon at the specified rate,
amounting to $4,000; that on the 31st Of
December, 1898, and within the time al
lowed by law for the presentation of
claims against the estate of said c. G.
P0wning, the appellant presented his
said claim duly verified to the admins
tratrix of said estate for allowance, and
filed the same with the clerk of the court
tor the amount hereinbefore set forth
That thereafter, and within the time al
lowed by law the respondent considered
said claim and allowed the same by stat
utery Limitation, and thereafter she mott
fled appellant to be and appear before the
judge of said court and show cause VIII
said claim should be allowed; that pur
suant thereto appellant appeared before
said judge to show cause, as aforesaid
and offered said judge, sitting in cham
bers, the original note and mortgage
hereinbefore set forth for the purpose 0
attaching the same to said claim as filed
Counsel for respondent interpesed no ob
lection to said offer and appellant lef
said original note and said original mort
gage with the said judge for the pur
pese of attaching the same to said CLAIM
and making the same part thereof, an,
said Judge retained said note and mort
gage until the - day Of June, 1899; tina
OH the 18th day of May, 1899, said judg
considered said claim and while in pos
session Of said note and mortgage re
jected the same; that the claim presente
is in the words and figures following
"In the Second Judicial District Court
the State of Nevada in and for Washo
County. In the Matter of the Estate
c. c. Powning, deceased. Creditor
Claim.
THE undersigned, creditor Of the e
tste of c. G. Powning, deceased, presen
his claim against the estate of said d
ceased with the necessary vouchers f,
approval, tO-wit: Estate of G, c. Pow
ing. deceased, to r. Kirman. To note al
mortgage, dated Reno. Nevada, Decemb
18th, 1896, recorded December 10th, 18.
at 46 min. past q. N. in Record NJ.
Mortgages, page 537, records of Wash
County, Nevada, which note and mo-
gage is hereby referred to and made