Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
H. R. Cooke, for Appellant.
P. E. Keeler, for Respondents.
By the Court, Talbot, C. J.:
The appellant, a surety company organized under the laws of Maryland, has transacted business in the State of Nevada as a surety on bonds and undertakings since 1901, under license issued in this state.
In August, 1907, the Tonopah Lumber Company obtained judgment against the respondent, E. Marks, in the district court at Tonopah for the sum of $14,908.09 and $518.25 costs. After the denial there of a motion for a new trial, appeal was taken to this court.
Upon the application of E. Marks and Eliza Kind to the Tonopah agent of appellant, and the representation of Marks that they owned property of a greater value than $200,000, it was agreed that the appellant would furnish a bond to perfect the appeal and stay the judgment in the required amount of $30,996.68, in consideration of Marks and Kind securing appellant against loss by giving a mortgage to appellant, which was executed by Marks and Kind accordingly, an delivered to appellant.
Later the judgment in favor of the Tonopah Lumber Company against Marks and others was affirmed by this court. Thereafter they paid the Tonopah Lumber Company various sums, leaving a balance of $7,352.40 unpaid on November 17, 1908. For the recovery of this sum, the
Tonopah Lumber Company brought an action against appellant, and on April 30, 1910, judgment was rendered in the United States Circuit Court, Carson City, against the appellant for $7,352.40, with $882.30 interest and $43.30 costs. On May 14, 1910, appellant paid $8,278, the total amount of this judgment, to the Tonopah Lumber Company, and $50 attorney's fee in defending the action.
After the mortgage was executed, and before the commencement of this action, Eliza Kind transferred her interest in the mortgaged property to E. Kind Realty Company, a corporation, and E. Marks transferred his interest in the property to E. Marks Realty Company, a corporation, and the latter company transferred its interest to respondent, Southern Nevada Real Estate and Investment Company, a corporation.
This action was commenced on September 12, 1910, to obtain judgment for the $8,278 and $50 attorney's fee paid by appellant, as before stated, and to secure a decree of foreclosure of the mortgage.
The sale by E. Marks to the Marks Realty Company was made on May 28, 1908, and was for his half interest in lot 5 and the south half of lot 6, block B, in Tonopah, and the sale from the Marks Realty Company of this same interest was made to Southern Nevada Real Estate and Investment Company on July 10, 1909.
The one-half interest in lot 5 and south half of lot 6, block B, so conveyed to the Southern Nevada Real Estate and Investment Company, was assessed by the county assessor of Nye County for the year 1909, and the amount of tax due thereon was $52.62. The first half or installment of this tax, $26.31, was paid on the first Monday of December, 1909, by H. C. Schmidt, the president and manager of the investment company, from the funds of that company.The last half of this tax was allowed to go delinquent on the first Monday in June, 1910, at which time that company still remained the owner of the interest so ...