Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-13
SUPREME couRr pec,s,on.


IN JHE SUPREME COURT or. THE
:. 'esA IeOFN eVADk.
hoean G9llsm& exeetlEtxs an1 ch1sleo
0uIUNo, Executor uff the Estate Of
Martin Gulltno, deceased.
Neepohdents
y.
WSsnoe Cp01ky eanks
appellant
Messe 0oooman ana Webb, Dodge and
t,arkers2 Ateerneyof Tor Respondent.
Messrs Cheney and Massey Attor-
neys TOR Appellant
OPINION
On March l, 1883, James Pollock,
mis- wHe Della and Daniel Powell who
ct that time. executed to B. u. Stein
man and =. h Cummings rs trustees.
q trust deed for certain property near
Rene to secure the payment Of 4
prQmisory note OF the same date CIV
en- by the Pollocks and Powell to
Farmers and Mechanics Savings Bank
OF sacramento Tor $6,OO0 and interest.
This deed directed the trustees in
case OF default in payment. to sell
the property at Sacramento after gls-
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
mortgage on the same premises for
$2,OS2.6O, and interest thereon from
that date at eight per cent per annun1,
which is sought to be foreclosed IN
this action and which specified thai
It was given subject to the trust deed.
On FEBRUARY 70, 1897 the POllOcks ana
property to Washoe County Bank for
stated consideration OF III, 100000.
which comprised the amount OF $S.-
SOO, 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 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 s, 1897 Martin
Gullinx fsled 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 ''in obedience
to samHons therein issued and served
upon him and answering the com
plant therein" In this answer. ne
admitted the priority Of the claim OF
the Farmers and Mechanics Saw
ings Bank under the trust decd,
thereby evoiding any real issue
with the plaintiff. but he alleged
the execution OF the mortgage to him
by the Pollocks and. roweli, that other
perS6h5 tlafmedh nj interest. IN the
prehNes which was SUBSEQUENT TO mis-
mortgage, and he asker for Judgment
against the. morgagorsg Cor principal,
Iintetest and attorney fees, for the
usual decree Of sale, that the proceeds
be applied EArst to- the satisfaction II
Amy judgnents which. Farmers and
Mechanics, Bank might obtain, and
second to the payment Of any jqdg-
sment he might recover. that ne have
execMAsufor any SdehcieAcy against chs
Pofloeks.iand, Powell; and that they.
I noinas e. ,Hayqon, Henry Anderson,
b. u. Steihman and G. H, Cummings
and m persons Claiming under them
subseudene to the execution oE tsnfs'
mortseee BE- sbarred. and. Aoreclosed Ut
all right, claim Or. equity q "a
demption. 49, ss...2
On March 20. 1897, twelve days after
Gulling ,aledl his answer. Stefnnhah and
Cummings. acting as trustees and at
ter notice given, sold the, property. It