Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-09
SUPREME COURT DECISION.

SUPREME COURT DECISION.
IN THE SUPREME COURT OF THE
STATE OF NEVADA.
Rosan Cutting, Execturix, and Charles
Quilting, Executor Of the Estate Of
Martin Quilting, deceased.
Respondents
Washoe County Bank,
Appellant.
Messrs Goodman and Webb, Dodge and
Parker, Attorneys for Responden..
Messrs Cheney and Massey, Attor-
neys for Appellant.
OPINION
On March /, 1898, James Pollock,
his Wife Della and Daniel Powell, who
are admitted to have been the owners
at that time. executed TO B. u. Stein
man and c. H. Cummings as trustees,
a trust deed for certain property near
Reno TO secure the payment of
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.
On August 81, 1895, the Pollocks
| and Powell executed to Martin Gulling
mortgage on the same premises for
/ $2,0S2.60, and interest thereon IRON
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 %, 1891 the Pollocks and
! Powell conveyed their interest in the
! property to Washoe County Bank for
/ stated consideration of $14,000.Oo,
! 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 $500 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 $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 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 or prayer. 1t stated that its
allegations were made "in 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 cf
the Farmers and Mechanics Saw
ings Bank under the trust decd,
thereby avoiding any real issue
with the plaintiff. but he alleged
the execution of the mortgage to him
by the Pollocks and ruwell, that other
persons claimed an interest in the
/ premises which was subsequent to mis-
mortgage, and he aske4 for judgment
against the mcrgagors for principal.
interest and attorney fees, for the
usual decree CT sale. that the proceeds
be applied first to the satisfaction Of
any judgment which, Farmers and
Mechanics Bank might obtain, and
second to the payment of any judg-
! ment he might recover. that he have
frr 4 lot th !
follccks and Powell, and that they.
i nomas E. Hayaon, Henry Anderson,
B. U. Steinman and C. H. Cummings
and ali persons claiming under them
subsequent to the execution of his
mortgage be barred and foreclosed pt
all right, claim or equity of re
J demption.
On March &c, 1897 twelve Gays after
Gulling filed his answer, Steinman anf
Cummings, acting as trustees and at
ter notice given, sold the property NJ
the court house soor at Sacrament 4
to the Washoe County Bank for 9,1O'
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 month!
later and on July -, 1897, Washo'
County Bank filed its answer withou
naming Gulling in tn title and pre-
!. faced its averments with the reclta
: lat s.as required by summons serves
on said Bank and answering san
5 summons and tie complaint filed Il
said action" it made its ailegatio1
. 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
9 Powell to Washoe County Bank. Thes
: facts, and they controlled the con-
. later in it's decision in that case. d
" not purport to be stated against Gu
ing. But directly after their stat
ment as SO alleged in answer to tn
complaint follows an allegation in Il
nature of conclusion of lay