Bryant v. Ohio College of Dental Surgery

Hagans, J. The determination of the demurrer to the original petition seems to be decisive of some of the questions presented to us now. Eor if an action in the form contained in the original petition could not be maintained for the principal sum and interest, it would seem doubtful whether the action could be maintained in the same form for the interest merely due upon the principal sum -named in the certificate. Besides, if this certificate be regarded as stock of the corporation, no time is fixed in the certificate for the payment of the interest; nor is there any fund alleged to be in the treasury out of which the plaintiffs have the right to be satisfied therefor. Wright v. Vermont & Massachusetts R. R., 12 Cushing, 68; Bernard v. Vermont & Massachusetts R. R., 7 Allen, 512; Waterman v. Troy & Greenfield R. R., 8 Gray, 433; McLaughlin v. Detroit & Milwaukee R. R., 8 Mich. 100. If we regard this certificate as simply the promissory note of the defendant given for money loaned, then the plaintiffs have the right to a judgment for the amount with interest, but not a sale, in the first instance, of the [69] property of the defendant as upon a lien .securing the amount. "Without determining those questions it is very clear that the judgment below can not stand. No other lien appears in the case than the assertions of the certificate, which appear to be rather of an ownership fro tanto in the real estate of the defendant than of any other interest. And if there be no instrument providing a legal lien- on the real estate of ‘'the defendant by way of security for the money named in the certificate, a decree for the sale of the property for the debt in the first instance, is unauthorized. If there be a lien at all, or right to a sale of the property, it must be asserted in some other form of action having regard to the rights of other holders of certificates and creditors, if there are any; and this we understand to have been the determina¡tion of the judge below. On the whole case, we have thought it best to reverse the judgment and to remand the cause to Special Term for further proceedings,