Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-21


suRazAE- coLaT. DEc.sloN. +
IN THE SUPREME COURT OF THE
!, STATE 0f.hAEvA0A.sabssyt
aosan GuIling, Exeeturix, and Charles
Gullino, !, Executor OF, the Estate Of
Martin Culling, deceased.
Respondents
Va af44a fs@
Hashoe County Bank,
Appellant. W.
Messrs dcsNebb, Dodae and
Parker, Attorneys for Respondent.
Messrs Cheney and Massey, Alter
neys for Appellant,
OPINION
On March /, 1893, James Pollock,
his wife Della and Daniel Powell, who
are admitted to have been the owners
at that time. executed to B. u. Stein
man and c.. H. Cummings as trustees.
q trust deed for certain property near
Reno to- secures the payment of a
promispry note of the same. date CIV
en- by the Pollocks and Powell to
Farmers and Mechanics Savings Bank
Of Sacramento for $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 GulIing
a mortgage on the same premises for
| $2.082.6O, and interest thereon from
THAT date at eight per cent per annun
| 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
/ property to Washoe County Bank for
a stated consideration of $14,000.0a,
which comprised the amount of S.
S00, estimated to be due to the Farm
ers-and Mechanics Bank of Sacram-
| ento. on the note secured by the trust
7 deed and 5000 due from the Pollocks
and Powell to the Washoe County
h Bank on unsecured notes which were
surrendered to them On February
/ rs, 1897, the Farmers and Mechanics
Savings Bank commenced suit to re-
cover the amount due on its note stat
ed at $8,639.73, and for foreclosure Of
the trust deed and sale to satisfy that
amount against the Pollocks, Powell,
Thomas E. Hayden, Henry Anderson,
/ John Doe, Richard Roe, Michael Doe,
B. U. Steinman and G. 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 f1cti-
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
i trust Decd. On March s, 1897 Martin
Gnlling fled an answer in that action
in which the name of Washoe County
Bank is not mentioned in the title,
body Tor prayer 1t stated that its
allegations were made lin 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 and Mechanics Saw
ings Bank under the trust deed,
| thereby avoiding any real issue
/ with the pladntifn, but he alleged
/ the eexecaticnscf the mortgage to him
/ By. tho Pollocks and. xowell, that other
] persona claimed IN interest in the
! premises which was subsequent to iiis
mortgage, ana he saske6 for judgment
/ A8aiABt ,thee morgagofs for principal,
intessat and. attorney !. fees. for the
! usual decree Of sale, that the proceeds
| be applied 4frst To the satisfaction 81
| anye juASaAents,wAich E1fmerE and
| Nechanicssi Bank might vobtain, and
!, second to the payment Of any judg
! - 10 haWl
| execution for any deficiency against tn ,
kollocks ana Powell, : and that sthey
| tnonas EJ Haydn, Henfy Andefson,
B. u. aSteinmAA and c. H. Cumningl
and, all persons claiming under them
subsequent to the execution OF ais
mortgage be barred atld f0feclosed ,oi
all " fighxI claim oors equity ct -.
dennptioH.Na. Al es.
On March a., 1897, twelve DAYS aftei
0ulling fled his answer, Stefnmsn and
Cummings, acting as trustees and AZ
ter notice given, sold thu prODettyn II
| the court house. ioof at Sacrament
| to the. ,Washoe. County Bank tor ,f9t
the amount due the F'afmers and
Mechanics Bank on the nOteysccufed
by tho trust+deed and ethe SUM esti
mated for COSTS, Over four months
later and. ON July -, 1897. Washos
County Bank filed, its answer without
naming Quilting in tins title and pre-
faced its averments with the reoita
lat "as. required by. sammon@ servet
ON said Bank and answering salt
summons and the complaint filed 4
said action it made its atlegatioa
setting out the execution so4 the trus
deed. the sale athereundM and eth
deeds from Steihman and Cumming
as trustees and from the Pollocks an
Powell to Washoe County Bank. Thes
, facts, and they controlled the couI
later in its decision in that CASE q
not purport to be- stated against Col
ing. But directly after their STATE
ment as SO alleged in answer to til
complaint, follows an allegation in til
nature OF. conclusion Of Law
that the equities of all the other u
PENDANTS, including Gulling, were for