Vandervort

This is an appeal from a judgment for defendant entered upon the sustaining of a demurrer to the complaint without leave to amend. The action was brought to recover the sum of $15,000 paid by plaintiff in June, 1929, as the purchase price of a beneficial interest in a real estate trust of which the defendant, a national bank, was trustee. In the first count it is alleged that the interest which the bank transferred to plaintiff was void and hence valueless for the reason that the bank had not obtained a permit from the commissioner of corporations. In the case of Fox-Woodsum Lumber Co. v. Bank of America Nat. T. & S. Assn, (ante, p. 14 [ 59 Pac. (2d) 1019 ]), this day decided, we held that at the time of the sale of the beneficial interest here involved national banks were not subject to the provisions of the Corporate Securities Act. For the reasons stated in that decision, it was not necessary for the defendant bank to have obtained a permit and plaintiff’s contention to the contrary is without merit. The demurrer was properly sustained as to the first count.

The complaint contains a second count sounding in tort wherein plaintiff seeks to recover on the ground of fraud. We are…