Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-15
SUPREME coJai Uscasi6se

sUPREME coLRf UEclsi6if 9;
.ilf-11fR.s0enesREscQUNTnorTHE
STATE or NEVADA.
Hoean cuIllsao; exeetliflx, and Charles
Gullin0, Executor cf the Estate Of
Martin 0pIllno, deceased.
T Res 6fa5nts
Washoe County Bank,
Mes3rs oo6dfnaK and We6b, Dod6s asstl
Parker, Attorneys for Respondent.
Mesers cheeneys and MasseX Attor-
neys for Appellant.
OPINION
On March 1, 1888, James Pollock.
his wife Della and DanieT Powell, who
are admitted to have been the owners
at that time. executed to b. q. Stein
man and G. Fl. Cummings as trustees,
a trust deed for certain property near
Reno to secure the payment of
promfsory note of the same date CIV
en- by the Pcllocks and Powell to
Farmers and Mechanics Savings Bank
of Sacramento fer $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
mortgage on the same premises for
$2,OS2.60, and interest thereon from
that date at eight per cent per annum
which is sought to be fereclosed IN
this action and which specified thai
it was given subject to the trust deed.
On February 80. 1897 the Pollocks ana
Powell conveyed their interest in the
property to Wasnoe County Bank for
stated consideration Of $14,000.0n,
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 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 $8,63973, 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
i 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
! Gulling filed an answer in that action
/ in which the name OF Washoe County
Bank Is not mentioned in the title,
body,ior prayer. 1t. stated that its
\ allegatiops were made ''in obedience
! TO- summons therein issued and served
| upon him and Answering the com
plaints therein" In this answer ne
admitted the, priority of the claim OF
! the Farmerss and :. Mechanics, Say
/ ilgA Bank under the trust decd.
!. thereby avoiding any real issue
|, With tho plaintiff, but he alleged
|, the executipnsof the mortgage to him
1 bxs The Pollocks and rswell. that other
: DeE49ns claimed an interest n the
& premlses which was subsequent to hie
{ m6Ttsag2, 'Gnd Ne askeu Tor judgment
I $e6ihst the. norgAgprs flor principal,
f.fnkefeska end attorney fees, for Z the
4 psuals decree OF sale, that the proceeds
{ be applied. hrst to tho 9Atfsfattion u
E4nye Judgment which f6fmefS ndld
EIfeehanics sBsik. might obtain and
{ descend sto.sthe srayme9t pf any iudg
maPt ha smikht Eef2Ysr. cthff r sc 81 ns ~ |.
{ p6ii6ckSs Ana Powell. 1Ad thse: they
lnntAM sB.vfIxydQAss HenryreAndprson
h 9. steipmsn and; c. H CymmiAgs
md ell persQnA claiming under them
tu6Seouenf to the executi0n 0f aAis
m0aag be barred and sfofeclosed a
an! right, ,eaaim or equity 80 o. -
On March -. 1897, kxsive days aftel
/ Gufiihx fled MIS- answer. OteihmAH ahl
Udtau1IhS6a Acting ,U8 trustees Sands af
t6ss1otioe given. sold the pFppeFty y
the court house toor ct Sacramen-e
( to the Washoe County Bank f0f ion
L the amount due the Farmers and
mechanics Bank o. thes,note secured
! bya the trust deed and the spms esti
| mated for costs. Over four months
later and on July - 1887 Washo'
County Bank fled it, answer withou
naming Gulling in tnS title and; PFC
faced It's averments, with the recita
Tat ..as required by summons serves
on said Bank and answering SAT-
J summons and the complaint HE'D i
! said action 1t made its aiaegataoa
setting out the execution o. the trus
deed, ctlse 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 couI
. laterrin. its decision in that case. q
not purport to be stated against Gu'
ing. But directly after their stAt'
mont as Is alleged In answer to th
complaint, foilews an allegation IN Il
nature Of 4 ~ conclusion ! Of Ia,
s.that the equities Of all the other. u