Clemens

The statement of the case by appellants and respondents in their respective briefs does not differ materially. We have followed that of the respondents mainly.

On April 13, 1909, the plaintiff herein brought suit against Wellington Gregg, Jr., as trustee, under a trust deed made to secure certain notes of the Keane-Wonder Company given to the Francis Mohawk Company and James F. Peck, to enjoin a sale of the property therein described under an advertisement in execution of the power of sale contained in such trust deed, and for an accounting for moneys received and paid on account of indebtedness, and for other relief. A preliminary injunction was issued prohibiting the trustee from making a sale of the property. The defendant, Francis Mohawk Mining and Leasing Company, filed its answer and cross-complaint, in which it claimed that it owned the notes given to it by the Keane-Wonder Mining Company, and alleged that the same, together with certain notes given to James F. Peck, were secured by a mortgage or trust deed covering all the property of the Keane-Wonder Mining Company. It claimed that the lien thus created was valid and enforceable, and prayed a foreclosure of the trust…