house, and that the act of changing the name of the street and renumbering the buildings was a legislative and a valid act.

In Van Ingen v. Hudson Realty Co. (1905) 106 App. Div. 444, 94 N. Y. Supp. 645, it appeared that the board of aldermen of New York city had authorized and instructed the president of the borough of Manhattan to change the numbers of buildings situated on the west side of Fifth avenue between West Twentieth and West Twenty-second streets. Accordingly, the defendants' building was designated as 160 Fifth avenue, which number had been used on the plaintiff's building for fourteen years. The plaintiff petitioned the court to enjoin the defendants from numbering, or attempting to number, their building as No. 160 Fifth avenue. The court held that the numbering and renumbering of the buildings was a legislative act, and was therefore valid, and the plaintiff's petition was dismissed.

In Darling v. Jersey City (N. J.) supra, it appeared that the city officials of Jersey City had opened a new street, but at the time of the opening had not officially named it. The street, however, had been known as Booraem avenue from the time it was opened, and the plaintiff had built three apartment houses thereon, which were known as Nos. 1, 3, and 5 Booraem avenue. The plaintiff objected to the change of name, and brought suit to have the generally known name restored. The court held that the change of name was a valid act, since the city charter gave the officials the power to pass ordinances regulating the numbering of houses and the naming of streets.

In Eldridge v. Fawcett (1924) 128 Wash. 615, 223 Pac. 1040, the plaintiff

brought suit to question the power of the city of Tacoma to change by ordinance the name of one of its residential streets. The court held that, if a city has been authorized by statute to change the name of and regulate streets, it is not liable for the exercise of such a power.

However, in Miller v. Cincinnati (Ohio) supra, wherein it appeared that the city council attempted to change the name of a street, the plaintiff, an abutting owner, sued to enjoin the council from making the change. The court granted the injunction, and held that a city council cannot change the established name of a street at will, no good cause existing, except on petition of abutting property owners.

It seems that if street names and numbers are used as tradenames, a different question arises, and the user has a property interest in the street name and number which he uses. Thus, in Glen & H. Mfg. Co. v. Hall (1874) 61 N. Y. 226, 19 Am. Rep. 278, it appeared that the defendant had bought a business which had for many years used No. 10 South Water street as a tradename, and assumed the same street name and number as his tradename. The plaintiff subsequently entered into business on Water street, manufacturing a similar product, adopted the name No. 10 South Water street, and brought action to have the defendant enjoined from using No. 10 South Water street as a tradename. The defendant asked for a similar injunction against the plaintiff. The court found that the defendant had acquired the right to use No. 10 South Water street as a part of the purchased property, and that the plaintiff should be permanently enjoined from infringing on the defendant's business by using that number. A. N. S.

ern Granite Co. 96 S. C. 106, 79 S. E. 985; 3 Cook, Corp. p. 2840; Security Trust & S. D. Co. v. New Jersey Paper Board & Wall Paper Co. 57 N. J. Eq. 603, 42 Atl. 746; Grant v. Winona & S. W. R. Co. 85 Minn. 422, 89 N. W. 60; Caylus v. New York, K. & S. R. Co. 76 N. Y. 609.

Until default is made in the payment of the bonds, or the interest falling due upon them, the trustee has no active duties to perform, but is simply the repository of the title to the property mortgaged in trust for the whole creditor class secured thereby. But when a default occurs, the duties of the trustee become active and important.

Com. ex rel. Atty. Gen. v. Susquehanna & D. R. Co. 122 Pa. 306, 1 L.R.A. 225, 15 Atl. 448; Northampton Trust Co. v. Northampton Traction Co. 270 Pa. 199, 112 Atl. 871; Jones, Corporate Bonds & Mortg. p. 318; Byers v. Union Trust Co. 175 Pa. 318, 34 Atl. 629; National Waterworks Co. v. Kansas City (C. C.) 78 Fed. 428.

If there was any duty on the appellee to record the mortgage, it was as agent for the mortgagor, and if he was negligent in failing, as such agent, to record the mortgage, then recourse must be had against its principal, the Savage Fire Brick Company.

14a C. J. 627, 686; Ainsa v. Mercantile Trust Co. 174 Cal. 504, 163 Pac. 898; 3 Cook, Corp, p. 2845; Tschetinian v. City Trust Co. 186 N. Y. 432, 79 N. E. 401; Davidge v. Guardian Trust Co. 203 N. Y. 331, 96 N. E. 751; 4 Cook, Corp. p. 3043; Bauernschmidt v. Maryland Trust Co. 89 Md. 507, 43 Atl. 790; 3 Fletcher, Cyc. Corp. p. 2327; Miles v. Vivian, 25 C. C. A. 208, 51 U. S. App. 194, 79 Fed. 848.

Frazer, J., delivered the opinion of the court:

The learned trial judge, in his order sustaining the motion for compulsory nonsuit, was of opinion the case is ruled by Byers v. Union Trust Co. 175 Pa. 318, 34 Atl. 629. It is true that in the Byers litigation the basis of the dispute, the facts and circumstances considered and the principles laid down, are similar to those involved in the case before us. The former, however, was an action of assumpsit against the trustee under a corporation mortgage, while the one at hand is an action in tres

In

If

pass alleging gross negligence and deceit against a like trustee. both cases the purpose is to recover sums of money, with interest, paid by plaintiffs in the purchase of bonds by the corporations of which defendant in each case was trustee under the trust mortgage, intended as security for the bond issue. It was a matter of contract in the Byers Case; here we have a question of tort; and since it, at least in form, is an action in trespass, we shall treat it as such. we were to follow in detail plaintiff's very extended statement of claim and its elaborate presentation of averments, wherein the charges against defendant trust company embrace false representations willful deceit, and gross negligence, we should be led into an unnecessarily wide range of discussion. Moreover, admissions in plaintiff's argument, appearing in the record, remove all need for such extended discussion, as he there states: "It is true that in the certification of a mortgage a trustee will only be held for gross negligence or willful default, but our contention is that in the present case the defendant is guilty of gross negligence in certifying the bonds and in allowing the issuance."

This statement simplifies consideration of the questions in dispute, inasmuch as it is upon such certification by defendant, upon three bonds, that plaintiff alleges its liability arising out of plaintiff's purchase of the bonds, for the total sum of $3,000 of the issue made by the Savage Fire Brick Company. Plaintiff declares, and it is not disputed, that the trust company had, as trustee under the trust mortgage, placed this certificate on each bond: "This is one of the issue of bonds of the Savage Fire Brick company, described in the within indenture. Title Trust & Guarantee Company, Trustee, by M. D. Bearer, Secretary."

Plaintiff declares that, relying upon this certification, he purchased three bonds, "and, but for the said

certificate signed by the defendant, the plaintiff would not have purchased said bonds and paid the consideration therefor," and that, because the bonds "are without value," the money invested is lost.

We think the dispute settles down to these questions: What did this certification cover in the way of placing responsibility upon defendant, and wherein was defendant guilty of deceit and gross negligence in making such certification? It is evident, as the testimony in the case shows, that the trust mortgage, which appellant claims should have been in the special care of the trustee, was in fact never placed on record. It is not in dispute that, at the time the second issue of bonds to the amount of $500,000 was made, there was outstanding and unpaid a debt of approximately $186,000, created by a former issue of bonds in that amount by the fire brick company, and it is also a fact that there was a foreclosure sale under the first mortgage of the property of the brick company to secure that indebtedness, but, as the purchaser did not comply with the terms of this sale, a second sale was had, and the price realized then was $2,600. These proceedings in foreclosure were instituted by the creditors' committee holding the first mortgage bonds of the fire brick company, and it was testified at the trial by the attorney acting for the committee that he had been instructed by that body to bid in the property at $190,000, which, as he testified, was the value put upon it by appraisers engaged by the Creditors' Committee to make a valuation; and it was because, as appellant contends, of this forced sale under the first issue of bonds, and the trustee's neglect to have recorded the mortgage securing the second issue so as to make the bonds a lien upon the brick company's holdings, that his investment of $3,000 was lost. He claims, likewise that, at the time he purchased his three bonds, he was not aware that the mortgage securing the second issue,

57 A.L.R.-30.

which included those purchased by him, was not on record, and that none of these facts were disclosed to him by defendant company, trustee under that mortgage; consequently he became the victim of deceit and gross negligence on the part of the trustee.

We fail to see that appellant has any basis for his charges against the good faith of appellee or for his claim of right of recovery from it of the $3,000 he invested in the bonds. His error is in assuming that the brief recital, in form of

tification of

-liability in

a certificate, on the Mortgage-cerbonds by the Title bonds by trustee Trust & Guarantee tort. Company, over the signature of its secretary, was in fact a certification and guaranty of the validity of the bonds, and which therefore rendered the trustee liable for his loss. A certificate of this character carries with it no such burden and creates no such obligation. Its phraseology alone would prevent an interpretation of that sort. It is merely a bare declaration that the bonds in this dispute were of the issue of bonds by the Savage Fire Brick Company as "described in the within indenture;" that is, as narrated in the body of the bond itself. We said in Byers v. Union Trust Co. 175 Pa. 318, 325, 34 Atl. 629, a case similar to the present one: "We do not consider that there is any basis of liability on the part of the defendant to pay the claim of the plaintiff in this case. The defendant is the mere trustee of the mortgage given by the Elk Coal & Coke Company for the protection of the bonds issued by that company. None of the money derived from the sales of the bonds was received by the defendant, and no engagement to pay any of the bonds was made by it."

That language applies to the case at hand. There is nothing in the evidence to even indicate that the trustee was the recipient of moneys. received for the sale of the obligations, and, as for the three bonds.

bought by appellant, they were purchased, as he himself testified, at a bank other than that of the trustee. It is not particularly material here whether they did or did not receive money for the bonds sold, as they certainly entered into no engagement to indemnify purchasers of the securities for whatever loss they might sustain, should the bonds prove valueless. It is not to be supposed that a trust company, a bank, or other responsible financial institution, acting upon the intelligence and experience of its officers, and presumably guided by legal representatives, would so lightly intend and agree to assume, by means of a brief certificate, merely identifying bonds to be those of a designated issue, the heavy obligation of guaranteeing the validity of securities issued by another corporation for which it had consented to act as trustee under a trust mortgage, and thus render itself answerable to the extent of the security given by such mortgage, and accept a liability to holders of the obligations for any loss that might be incurred, by the subsequent lack of value of the bonds. "It has never been understood here, or elsewhere, so far as we are informed," the court said in Bauernschmidt v. Maryland Trust Co. 89 Md. 507, 43 Atl. 790, in the Maryland Court of Appeals, "that a trustee, under a mortgage like the one before us, creating, as it does, a mere trust to certify the bonds, did more by the form of certificate adopted than to thereby identify them as the bonds of the company which the mortgage was executed to secure."

Appellant contends the "duty devolves upon such corporation mortgage trustee to see that the mortgage is delivered and recorded." In view of what has already been said as to the extremely limited range of authority and responsibility of the trustee we might properly dismiss that contention by saying, as the trustee had not obligated itself in any way to guarantee the soundness

of the bonds, it was not within its duty to see whether

the mortgage was as to recording. -trustee-duty recorded or not.

We, however, give that aspect of the case further consideration. Undoubtedly there was a mortgage in existence in this transaction, intended as security for the second bond issue of $500,000, and legally executed and signed by the properly authorized officers, with the proper seal attached as the evidence discloses. It is sufficient where the seal of the company has been affixed to a mortgage by the secretary of the company (4 Cook, Corp. p. 3619); and, says the same authority (page 3628), "it is not necessary that there be a manual delivery of the mortgage by the trustee in order to constitute a delivery. Delivery of a mortgage may be informal, and, where the same man is president of both mortgagor and mortgagee and makes delivery himself, this is sufficient." That was the course of procedure in the present case. the mortgage was not placed on record. That requirement was not an affair of the trustee, as under the general rule a trustee's certificate, that is silent as to recording, does not render the trustee liable in case the mortgage is not recorded. 4 Cook, Corp. p. 364. In the certificate under consideration here, there was no reference to a mortgage, but there was a reference to an "indenture," meaning either the bond, which describes the mortgage minutely, or the mortgage itself; and that description in the bond, as purchased by appellant, provided in sufficient detail the information any prospective buyer of these securities might need to satisfy himself of their status as a safe investment.

But

Manifestly, as the testimony shows, appellant read the certificate of the trustee on the bonds he bought; he could see at a glance that the certification contained no express or indirect assumption of liability on the part of the trustee, or that it bore no terms of warranty by the trustee, and that it was certainly