Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-17
SUPREME COURT DECISION.

4
IN THE SUPREME COURT OF THE
STATE OF NEVADA.
Rosan Cutting, ExecturIx, and Charles
Gulling, Executor Of the Estate Of
Martin GuIiing, deceased.
Respondents
Washoe County Bank,
Appellant.
Messrs Goodman and Webb, Dodue and
Parker, Attorneys for Respondent.
Messrs Cheney and Massey, Attor-
neys for Appellant.
OPINION
On March 1, 1898, James Pollock,
his wife Della and Daniel Powell, who
are admitted to have been the owners
at that time, executed to B. u. Steiu-
man and C. H. Cummings as trustees,
trust deed for certain property near
Reno to secure the payment of
promisory note CT the same date CIV
en- by the Pcllocks and Powell to
Farmers and Mechanics Savings Bank
of Sacramento fer $4,000 and Interest.
This deed directed the trustees in
case of default in payment. to sell
the property at Sacramento after Civ
ing notice, to apply the proceeds in
satisfaction Of the note and costs of
sale and to pay any excess to the
, grantors.
On August 81, 1895, the Pollocks
and Powell executed to Martin Gu1ling
a mortgage on the same premises for
| $2,0S2.69. and interest thereon from
that date at eight per cent per annunl,
which is sought to be foreclosed IN
| this action and which specified thai
| it was given subject to the trust deed.
/ On February %, 1891 the Pollocks and
! Powell conveyed their interest in the
/ propertyIto Washoe County Bank for
a stated consideration of $4,000 on,
which comprised the amount of S.
! 800, estimated to be due to the Farm
ers and Mechanics Bank of Sacram-
| ento on the note secured by the trust
! deed and 81, 200 due from the Pellocks
and Powell to the Washoe County
/ Bank on unsecured notes which were
/ surrendered to them. On February
] 26, 1897. the Farmers and Mechanics
Savings Bank commenced suit to re
cover the amount dueson it's note stat
ed at $S,63973 and for a foreclosure Of
the trust deed and sale to satisfy that
amount against the Pollocks, Powell,
Thomas E. Hayden, Henry Anderson.
John Doe, Richard Rec, Michael Doe,
B. U. Steinman and e. H. Cummings
Neither Martin Gulling nor the Wash
oe County Bank were named as par
ties in the complaint, but both were
served with summons under the ficti-
cious designations of defendants who
were alleged to have some title, claim
or interest which was second and sub
ordinate to the right of the Farmers
and Mechanics Bank arising from the
trust deed. On March 8, 1897 Martin
Gulling filed an answer in that action
I in which the name of Washoe County
Bank is not mentioned in the title.
body or prayer. It stated that its
/ allegations we're made Tin obedience
| to. summons therein issued and served
upon him and answering the COM
plant therein" In this answer ne
admitted the priority Of the claim CT
the Farmers ard Mechanics Saw
ings Bank under the trust decd,
!, thereby avoiding any real issue
/ with the plaintiff. but he alleged
| the execution Of the mortgage to him
/ by the Pollocks and rowell, that other
persons claimed an interest in the
+, premises which was subsequent to mis-
| mortgage, and he aske. for judgment
against the morgagors for principal,
/ interest and attorney fees, for the
usual decree Of sale, that the proceeds
be applied first to the satisfaction Ut
any judgment which Farmers and
Mechanics Bank might obtain, and
second to the payment of any judg-
ment he might recover, that he have
| execution for any deficiency against the
Pollocks and Powell, and that they,
| N nd
B. u. SteinmAn and G. III. Cummings
and all persons claiming under them
| subsequent to the execution Of his
mortgage be barred and foreclosed IT
| all right, claim or equity OF re-
demption.
| On March 20, 1897, twelve Gays after
Gulling filed his answer, Steinman and
| Cummings, acting as trustees and at
| ter notice given, sold the property 1t
| the court house toor at Sacramento
! to the Washoe County Bank for 800
the amount due the Farmers and
Mechanics Bank ON the note secured
BY the trust deed and the sum estl-
! mated for costs. Over four months
later and on July -, 1897, Washoe
County Bank filed its answer without
1 naming Gulling in tn title and pre-
faced its averments with the recita Al
lat "as required by summons served
ON said Bank and answering said
summons and the complaint filed n
said action" it made its ai,egatioas
setting out the execution o. the trust
deed, the sale hereunder and the
deeds from Steinman and Cummings
as trustees and from the Pollocks AM
. Powell to Washoe County Bank. These
J facts and they controlled the cour1
later in its decision in that case. DC
J not purport to be stated against Gull
ing. But directly after their state
ment as SO alleged in answer to tht
complaint, follows an allegation in tn
nature of conclusion of law
"that the equities of all the other ue
PENDANTS, including Gulling, were fore
closed and barred" and demand 70
decree accordingly against them an
the plaintiff This answer does no