Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-19
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~ fFaEs g0pnexAe- oouR4 81. fAs'
STATE OF ,NEyADAA
Rosan sGtff}inq! exectufix, and charles
Quilting, Executor Of the Estate Of
~ MaFtins Gysltpo, deceased.
Rssperdssts
sWsshoe County Bank;
Appellant. IT, - q.
Messrs Goodman and Webb, DODGE and
Parker, Attorneys Tor Respondens.
Messrss cheeEeys 1sdalHassey, Attor.
neys for Appellants. .ue
. asf frQPINioN
On March I, 1893, James Pollock.
his wife Della and Danief Powell, who
are admitted to have been the owners
at that time. executed to Bs U.Steiu-
man and G. H., Cummings as trustees,
trust deed for certain property near
Keno to secure the payment OF 4
prOmisory 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
z On August 81, 1895, the Pellocks
and Powell executed to Martin Gulling
mortgage on the same premises for
$2.082.60, 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 %, 1897 the Pollocks and
Powell conveyed their interest in the
property to Washoe County Bank for
a stated consideration of $14,000.0n,
which comprised the amount of ST.
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 $8,639.73, 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 Roe, Michael Doe,
B. u. Steinman and Z. 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 fled an answer in that action
in which the name of Washoe County
Bank is not mentioned in the title,
body or prayer. 1t stated that IFS
aIlegations were made Gin obedience
to summons therein issued and served
upon him and answering the CON-
plant therein" Ins this answer ne
'aumitted the priority Of the. claim ct
the s Farmers and Mechanics Saw
ings Bank under the trust decd.
thereby avoiding any real issue
With the cplAiAtff, esbut he alleged
the execution Of the mortgage to him
by, tho PoIlocks and xuwell, that other
persons claimed IN interest in the
premises which was subsequent to mis-
mortgage, and he xske. for Judgment
against the mofgAgors 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
execrt ion for any deficiency against tn .
follccks and POWELL and that they
L nomas e. Haydoh, Henry Anderson
B. u. Steinman and C. n. Cummings
and all persons claiming under them
subsequent to the execution Of his
mortgage be barred and forecfosed Ut
all right, claim or equity of re-
.demption. sa
(, On, March 20, 1897, twelve Gays after
Gulline fled his answer, Steinman and
Cummings, acting as trustees and at
ter notice given, sold the property ~
the court house GOT at Sacrament
to the Washoe County Bank for S,lH
the amount due the FARMERS and
Mechanics Bank ON the note secured
by the trust deed and the sum est
mated for costs. Over four months
later and on July .--, 1897, Washot
County, Bank filed it's answer without
naming Gulling in til title and pre-
faced its ayerments with the recita
at "as required by summons serves
! on said Bank and answering SAT-
summons and tie compliant HE'D !
/ said action it made Its allegation
setting cut the execution o. the trus
I deed. the sale hereunder and tn
4 deeds from Steinman and Cummine
as trustees and from the Pollocks an
Powell to Washoe County Bank Thee
facts. and they controlled the ccul
later in its decision in that case. q
not purport to be stated against Go
ing. But directly after their stat
ment as so alleged in answer to tt
complaint, follows an allegation in Il
nature of q conclusion Of LAY
| ssthoA thu ,rnitfoc of all tho ut her :,