Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-22
:. SUPREME COURT DECISION.

SUPREME COURT DECISION.
N THE SUPREME COURT OF the
STATE OF NEVADA.
sosan Cutting, Execturix, and Charles
Cutting, Executor ct the Estate OF
Ddbaartins Cutting, deceased.
- - Respondents stah.s-s
Nashoe County Bank, ~ 80
) 9sla1 AppeiIant.a. a
Messrs Goodman and Webb, Dodpe and
Parker, Attorneys, for Respondent.
Messrs Cheney and Massey, Attor-
neys for Appellant
.ssssa9E OPINION
On March 1, 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
nlan and CHI. Cummings as trustees,
!. a trust deed for certain property near
Reno to secure the payment of n
promiscry 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 Gulling
a mortgage on the same premises for
$2,0S2.60, and interest thereon from
Of of oiobt mar cont nor opp,,c,
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
stated consideration of s14,000.O0,
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 $1,000 due from the Pollocks
and Powell to the Washoe County
Bank on unsecured notes which were
surrendered to them On February
&c. 1897, the Farmers and Mechanics
Savings Bank commenced suit to re-
cover the amount due on it's 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. Haydor, 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 SUBJ
s 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
|. in which the name of Washoe County
Bank is not mentioned in the title,
body or prayer. 1t stated, that its
!; allegations were made Gin obedience
to summons therein issued and served
upon him and answering the COM
lplaint,, therein In this answer ne
admitted the priority of the claim scf
the Farmers and Mechanics Saw
ings Bank under the trust decd,
thereby avoiding any real issue
/ with the plaintim. a but he alleged
the execution OF the mortgage to him
by the Poiiocks and rowell, that other
persons claimed an interest in the
/ premises which was subsequent to mis-
Mortgage and he asket1 for judgment
against thet morgagors. for principal,
interest and attorney fees, for the
usual decree Of sale, that the proceeds
be- applied first to the satisfaction 81
/ any judgnentv which Farmers and
| Mechanics Bank. might; obtain. and
| second to the payment Of any judg
| melit he might recover, that he have
| executions for any deficiency againststh
| KollOcks. and Powell and that they
I pomas e. Hayden, Henry Anderson,
B.. u. Steinman and G. H. Cummings
| and al persons claiming. under them
| subsequent to the execution, OF ais
| mortgage he barred and foreclosed o1
! all right, claim or equity or re
! demption.
On March 20, 1897, twelve Gays aftel
/ Gulling filed his answer, Steinman and
| Cummings, acting as trustees and AT
ter notice given, sold the property =,
| the court house ioor at Sacramento
to the Washoe County Bank for 8, 1o(
the amount due the Farmers and
Mechanics Bank on the note secured
by the trust deed and the sum esti
mated for costs. Over four month!
later and on July -, 1897, Washo'
County Bank filed its answer withou
naming Gulling in tn title and pre-
faced its, 1averments with the recita
lat ..as required by summons serves
on said Bank and answering sal
summons and the complaint filed 1
said action it made its allegation
setting out the execution o. the trus
deed, the sale hereunder and tn
deeds from Steinman and Cumming
as trustees and from the Pollocks an
Powell to Washoe County Bank. Thes
facts, and they controlled the coul
later in it's decision in that case. q
= not purport to be stated against Gu
ing. But directly after their stat
ment as SO alleged in answer to tt
complaint, follows an allegation in Il
nature of a conclusion Of la'
I 4 sfhat the equities of all the other u