Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-16

auPREMEs couRT DsclssoM..
IN THE suPREME COURT OF THe
STATE or NEVADA.
hcean 0ulllngy Execturjx, and Charles
Gullin0, Executor Of the Estate Of
Martin 0ullinp, deceased.
-sllnI Reapondents 49,
Washoe County Bank,
s APHGlIanksl
Messrs Cochran and Webb, Dodge ana
Rsrlkers Attorneys for Respondent.
Messrs Cheney and Massey, Attor-
neys for Appellant.
ssssJalIo-Isn- loPINioM 40
On March 1, 1893, James Pollock.
his wife Della and Daniel Powell, who
are admitted to haye been the owners
at that time. executed to B. u. Stein
mani and C. ii. Cummings as trustees.
a trust deedffor certain property near
Reno to secure the payment Of
promisory note of the same date Civ
en- by the PO1iocks and Powell to
Farmers and Mechanics Savings Bank
of Sacramento for $4,000 and interest,"
This, deed directed the trustees lin
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
q mortgage on the same premises for
$2,0S2.60, and interest thereon from
that date at eight per cent per annum,
,i1I, ! ~ - he,
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
stated consideration of $14,000.00,
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
26, 1897, the Farmers and Mechanics
Savings Bank commenced suit to re
cover the amount due on its note stat
ed at $3.50 10, and for foreclosure Of
the trust deed end 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 flcti.
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 filed an answer in that action
| in which the name of Washoe County
: Bank is not mentioned in the title,
body OF prayer. It 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 Of
tho Farmers and Mechanics Saw
| ings Bank under the trust decd,
Is thereby avoiding any real issue
with the q plaintiff, but he alleged
the execution of the mortgage to him
l.hy tho Pollocks and uwell. that other
|. hersons chained an interest in the
i Gremises which WINS subsequent to mis-
mortgages ana heraAkes4 tfors Judgment
e&piAAt the omnfg49crsa Tor principal.
f1tofSet and attorney. fees. for the
| fusuaf deeree u siie, that the proceeds
he Applied nfsE 70 tk6 4atisf6eti6n iSl
| Any ojudEmenf MAlehl K6fmerst and
Mechanics Bank might obtain, aA4
ees9aS IS ths laynSnt s IS pg S i jySs,
exNettl6M fEf any deaciency against tn.
Hoalutk1 md RDMelia sandsthat thy
1homas q. Hayuon. Hpnlyn Anderson.
n IN SsfSons eisimiht dhdeF them iis
3uNSXudenI TO The executions ofsaNis
m0ItshgS2bssbG rr6d ands fcreclosed*Gi
al right. claima o. eSsitx IS 20
| '' Isl March d. 1897. t2elvs oa c ate,
sudflinE MED hts answer, Steihmanf and
itanAn1fngs9 actfng as trustees md -
Der mpttee sgiveas pldJtlIs pFepertyss =
rs. csss asE 4 Hss Stf foa s1os
lfhGr aaAo6hts dGe tie fFafmers and
mechanics Bank oniths a6tes secured
bta the trust deed aaHd tbs sum esn
! mated for costs Over 6oT m9rtA
later and on July -, 1877. Washoe
County Bank fled its answer withou
| naming Gulling in Ill, title nd epre
faced its. ;avermenls With the sEecita
i lat "as required by summons serves
on said Bank and answering sai'
summons and the complaint hled !
said action" it made its al.egatioa
setting out. the execution o.Fsthe tras
deed, the sale Hereunder and tn