Mattoon

Plaintiff, as executor of the estate of Christ Thoren, deceased, prosecutes this appeal from a judgment entered in favor of the defendants upon the sustaining of a demurrer to the complaint without leave to amend. The action was brought to recover the face value of participation certificates under a trust on the ground that the certificates were void as having been issued without a permit in violation of the Corporate Securities Act. The facts giving rise to this litigation are fully set out in the opinion in Fox-Woodsum Lumber Co. v. Bank of America, (ante, p. 14 [ 59 Pac. (2d) 1019 ]), this day filed, wherein it appears that the defendant bank, a national bank, at the times here involved was acting as trustee under an express trust, the corpus of which consisted of a note secured by a second deed of trust executed by the Arcady Apartment Hotel Company. In its capacity as trustee and on order of Arcady or its nominees the defendant bank between the years 1925 and 1929 executed and delivered so-called participation certificates evidencing fractional interests in the note. Plaintiff’s testator, the general contractor on the Arcady construction job, received certain of these…