Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-14
SUPREME COURT psc,s,oM.

IN THE eUPREME COURT or the
STATE OF NEVADA.
6oean Gulltn0, Exectlrix, e6dd Charles
ouIiino, Executor Of the Estate Of
Martin Outing. deeezaEd. :. - : s
Respondents
I Val A-sa sssss a
Washoe County Bank,
Appellant.
Messts Goodman and Webb, Dodge and
Parker, Attorneys for Respondent.
Mcssrs Cheney apd Massey, Attor-
neys for Appellant.
OPINION
On March, 4, 18A3s 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 G. H. Cummings as trustees,
a trust deed for certain3 property near
Reno to secure the payment of a
prdmisory note of the. same date giv-
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 Gulling
a mortgage on the same premises for
$2.082.6 go, and interest thereon from
that date at eight per cent per annum,
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 Wasnoe County Bank for
a stated consideration of s14,000.00,
which comprised the amount of S.
500, estimated to be due to the Farm
ers and Mechanics Bank of Sacram-
ento on the note secured by the trust
deed and 5000 due from the Pollocks
and Powell to the Washoe County
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,b39.73, 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
I'd - tho rio If "a pSs
and Mechanics Bank arising from the
trust deed. On March s, 1897 Martin
Gulling filed an answer in that action
in which the name of Washoe County
Bank is not mentioned in the title,
body or prayer. It stated that its
allegations were made ssin obedience
to summons therein issued and served
upon him and answering the COM
plant therein" In this answer ne
Anmitted the priority of the claim ct
the Farmers and Mechanics Saw
ings' Bank. under. the trust deed.
thereby avoiding any - real issue
With the plaintiff. but he. alleged
the execution Of the mortgage to him
by the FollocIs and fuWen, that other
!. perspna claimed. saAs INTEREST," in the
! premises Ehich was subsequent to mis-
i mQetgaSe,- and he asker. for. Judgment
AGAINST. the morgagors for principal.
iqtefest. and, Sttesney, fees, for the
usual decree Of sale. than Tia proceeds
Ia Applied FIRST to tho. sAttsfaetion. of
any, JUDGMENT winch Farmerk' ana
/ Mechanics Bank might obtain. and
sSecoad TO the payment Of any judg.
Nent he might s9eeoyers that he hasa
sexScptiqnfp for any deAciency against tha
FOlIockS and Powell. and that they.
a nd9nas D. Haydon, Henry Anderson.
3. q. StsiAma1lA nAsC:. II. Cumn1ins1
and al persons claiming under them
subsequent to the execution Of his
mortgage be barred and fQreclosed 81
all right claim or equity z q r.
demptiol.
- on march 70. ,asa1. twelve aays ants,
Gulling filed his. answer. 0teinman and
Cummings, acting "a trustees and II
ter notice given, sold the property ~
| the court house IGOR ct Sacramento
/ to the Washoe County Bank tor . ION
tJhe amount due the tarmers' and
mechanics Bank on the note secured
by the trust deed and the sum estl
mated for costs. Over -four montal
later and ION July -, 1884, Washot
County Bank fled its answer without
naming GulIlng in tn title and pre-
faced its averments with the recita
lat sas required by summons serves
on said Bank and answering. SAT-
summons and the complaint shlcd- a
said action" 1t made its aiiegatQ1
setting out the execution o. the trus
deed, the sale i therennder and th'
deeds from Steinmans and gCummahg
as trustees and from the Pollocks an
Powell to Washoe County Bank. Thes
i facts, and they controlled the couI
/ later in its decision i'm that case. q
not purport to. be stated against Gal
Il ing. But directly after their stat
ment as 50 alleged in answer to tn
complaint, follows an allegation In Il
natnre of conclusion OF ias
chat the equities Of Ill the other =
PENDANTS, including Gulling, were for
closed and barred" and demand (
decree accordingly against them q
the plaintiff. This answer does n
in any part of it purpQrt to ailege