Bangor House Proprietary v. Hinckley , 12 Me. 385 ( 1835 )

Weston C. J.

— The counsel for the plaintiffs contends, that the defendant is owner of a one hundredth part of the land, upon which the Bangor house is built, as tenant in common, and consequently of the house in the same proportion, and as an erection upon his land. We cannot assent to the correctness of this position. Prior to the act incorporating the plaintiffs, he was the owner of the land as tenant in common in the proportion stated. The effect of that act was to change the character, under which he and his associates held the land. Instead of holding as tenants in common, with the rights, privileges and liabilities incident to that relation, they thereafterwards held as a corporation, and the interest of the corporators, of whom the defendant was one, was converted from real, into personal estate. And that estate was made subject to the rules and regulations, prescribed in the act.

The case finds, that the incorporation was granted upon the petition of the defendant and others, and that he has made a payment upon the assessments, duly and regularly imposed upon his share. The act is binding then upon the defendant, and the question of his liability to this action must depend upon its provisions, and not upon his former interest as tenant in common, which had ceased and assumed a new shape, under the sanction of the legislative power.

The right to impose assessments depended altogether upon the act, by which it was created, and in which it had its origin. And there is provided therein a remedy for its enforcement.

It is urged that the action may be maintained under a clause in the 4th section. It is in these words : “ nor shall the propri- “ etor of any share or shares, be liable in his person or property “ for any tax, assessment, or demand beyond his interest in said “ corporation; though every share shall be perpetually pledged “ arid holden to the corporation for all the assessments made, and “ all debts due thereto.” No remedy is there affirmatively given, or liability imposed. The terms used are those of limitation. Had no special remedy been provided by the act, to enforce payment of the assessments, a liability might be implied to the extent of the interest, held by each corporator. Now'the interest of each corporator depends for its value upon the assessments, by him actually paid. If he had paid nothing, it might be of no value whatever. The third section had provided a mode, by which that value, whatever it might be, might be made available to the corporation, and the part of the fourth section cited, debelares expressly, that the liability of a corporator shall not be further extended.

We find nothing in the case to distinguish it from that of the Andover and Medford Turnpike v. Gould, 6 Mass. 40, where the rule is stated and enforced, that when a statute gives a new power, and at the same time provides the means of executing it, those who claim the power, can execute it in no other way. The mode provided there, as here, was by a sale of the delinquent’s shares. And the authority of that decision has been since adopted and enforced in other cases, cited in the argument.

The opinion of the Court is, that the action is not sustained, upon the facts agreed.

Plaintiffs nonsuit,