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

SUPREME COURT DECISION.
IN THE SUPREME COURT OF THE
STATE OF NEVADA.
Rosan Gulling, Execturix, and Charles
GulIing, Executor Of the Estate Of
Martin Guliing, deceased.
Respondents
Washoe County Bank,
Appellant.
Messrs Goodman and Webb, DODGE and
Parker, Attorneys for Respondent.
Messrs Cheney and Massey, Attor-
neys for Appellant.
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
man and c. H. Cummings as trustees.
a trust deed for certain property near
Reno to secure the payment of 4
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
$20S2.60, and interest thereon from
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 %, 1897 the Pollocks and
Powell conveyed their interest in the
property to Wasnoe County Bank for
a stated consideration of $14,000.0a,
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 $4,000 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 it's note stat
ed at $S,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
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 ct
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 rOwell, that other
persons claimed m interest in the
premises which was subsequent to his
mortgage, and he asker for judgment
against the morgagors for principal
interest and attorney fees. for the
usual decree of sale. that the proceeds
be applied first to the satisfaction 81
any judgment which Farmers and
Mechanics Bank might obtain, ana
second to the payment of any judg
ment he might recover, that he have
execution for any deficiency against tn i.
Pollocks and Powell, and that they
1nomas E. Haydn, Henry Anderson,
B. u. SteinmAn and C. H. Cummings
and all persons claiming under them
subsequent to the execution OF his
mortgage be barred and fOreclosed 81
all right, claim or equity OF re-
demption
On March 20, 1897, twelve days after
Gulling filed his answer, Steinman ane
Cummings, acting as trustees and al
ter notice given, sold the property II
! the court house loor at Sacrament
to the Washoe County Bank for S,1Ot
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 months
later and on July -, 1897, Washo'
County Bank filed its answer withou
naming Gulling in tn title and pre-
| faced it's averments with the reclta
lat .as required by summons serves
on said Bank and answering SAT-
summons and the complaint filed Il
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. Thea
facts, and they controlled the coul
later in it's decision in that case. d
not purport to be stated against Gul
ing. But directly after their stat
ment as so alleged in answer to tn
complaint, follows an allegation in IL