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Winters v. Winters

April 1912

ALICE M. WINTERS, AS EXECUTRIX OF THE ESTATE OF NELLIE G. MCCORMICK, DECEASED, AND MARGARET MCCORMICK, A MINOR CHILD, AND DEVISEE UNDER THE WILL OR NELLIE G. MCCORMICK, BY HER GUARDIAN AD LITEM, CHARLES FORSYTHE, RESPONDENTS, V. LEWIS WINTERS, NEVADA WINTERS, ET AL., APPELLANTS.


Appeal from the Second Judicial District Court of the State of Nevada, Washoe County; John S. Orr, Judge.

James T. Boyd and A. N. Salisbury, for Appellants.

John B. Dixon, for Respondents.

By the Court, Norcross, J.:

This is an action, brought by Nellie G. McCormick, since deceased, against the above-named appellants, to obtain a judgment decreeing her to be the equitable owner of an undivided interest in certain real property in Washoe County, and that appellants herein be required to convey to her such undivided interest. From a judgment and decree in favor of the plaintiff, and from an order denying defendants' motion for a new trial, this appeal is taken.

Shortly after the rendition of the judgment, the plaintiff died, and the executrix of her last will and the guardian ad litem of her surviving child and devisee were substituted as plaintiffs in the action.

Counsel for respondents have moved to dismiss the appeal from the order denying motion for a new trial,

[34 Nev. 323, Page 325]

and to strike the statement on motion for a new trial from the record, upon the ground that the notice of motion and statement were not filed within time, and because there is no undertaking on appeal from such an order. In the original transcript of the record filed in this court, there appeared certain errors in the dates when certain orders extending time were filed. These errors have been corrected by the filing of certified copies of the orders as actually filed and entered. As corrected, the record shows the motion and statement to have been filed within the time allowed by law and the orders of the court extending time.

The objection that there is not a separate undertaking on appeal from the order denying the motion for a new trial is also not well taken. It is settled under the practice in this state that one undertaking is sufficient from the judgment, and from the order denying a motion for a new trial. (Robinson v. Kind, 25 Nev. 261, 277, and authorities therein cited.)

It appears from the record that Margaret Winters died intestate, on or about May 30, 1898, leaving surviving as her heirs at law Theodore Winters, her husband, and the plaintiff and defendants, six children, issue of the marriage of the said Margaret and Theodore Winters. At the time of the death of the said Margaret Winters, there was standing on record in her name in the office of the recorder of Washoe County the real estate involved in this action. A portion of the property appears to have been deeded directly to the said Margaret Winters, and to have been on record in her name since the year 1864. The remaining property in her name at the time of her death consisted of 640 acres, and was conveyed to her by her husband, Theodore Winters, by deed, executed April 30, 1896; the property described in the several deeds, comprising all or the greater portion of what was known as the Winters ranch. The deed from Theodore Winters to Margaret Winters specifically provided that the land was conveyed to her “as her separate property and subject to her sole control and disposition.”

[34 Nev. 323, Page 326]

On the 19th day of March, 1897, the said Theodore Winters and Margaret Winters, his wife, executed a mortgage to the Washoe County Bank to secure an indebtedness of $10,000 from the said Theodore Winters to said bank; the mortgage including, among other lands described, the property in the name of the said Margaret Winters. This mortgage does not appear to have been canceled or abrogated prior to the execution of the mortgage by Theodore Winters to said bank, hereinafter mentioned, and of date February 11, 1904.

A deed, dated January 26, 1904, made by the plaintiff and defendants in this action to Theodore Winters, their father, was executed by the plaintiff in the city of Sacramento, State of California, on January 30, 1904. This deed, reciting a nominal consideration of $10, conveyed property described as follows: “All the right, title and interest of the parties of the first part, of, in, and to any and all real property belonging to the said Margaret Winters at the time of her death, and situate in the County of Washoe, State of Nevada, or elsewhere.”

On the 11th day of February, 1904, the said Theodore Winters executed a mortgage to the said Washoe County Bank to secure a note of even date for $15,000; the mortgage covering, in addition to other property, the real estate ...


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