tioned, and on the same day the title to the three parcels of land was registered in Austin in the office of the registrar of titles of Imperial county. There was no attempt in either petition or decree to cancel the Austin note, and in the decree no reference was made to the water stock. About December 22, 1917, the appellee learned of the registration proceedings. On February 15, 1918, interest on the Austin note being in default, the appellee declared the note due and filed its bill of complaint in the court below against the Austins, the Belfords, Carrick, and the People's Abstract & Title Company for foreclosure, alleging that the decree of registration was not binding on the appellee, that it had been obtained by fraud, and that the appellee had valid defenses thereto. The fraud was alleged to consist in the intentional omission of the appellee as a party to the registration proceeding, the false affidavit of Mrs. Davis of mailing the petition and notice to the Delta Company, the false affidavit of personal service on the Delta Company in Utah, and the filing simultaneously with the petition of registration a complaint to quiet title to said three parcels of land, in which the Delta Land Company and the appellee were named as defendants, and mailing and personally serving summons and complaint in Utah without procuring an order for substituted service; also collusion in the registration proceeding between the People's Abstract & Title Company and the petitioners, to enable the latter to obtain a decree of registration without notice to the appellee, and obtaining that decree without notice to the appellee. The Austins, the Belfords, and Carrick answered the appellee's bill, denying the principal allegations thereof, alleging that the appellee was the alter ego of the Delta Company, alleging a valid sale of the Belford and Carrick parcels of land by mesne conveyances to one Aron, and the Austin land to T. E. Gill and Myla R. Gill, his wife, about February 13, 1918. The People's Abstract & Title Company failed to appear, and its default was entered. On January 22, 1920, the appellee filed its supplemental bill, bringing into the suit as defendants the Gills, said Aron and others, together with one Wolfe, who was alleged to be a grantee with notice of a mortgage for $8,500 on the half section of land in Imperial county owned by the said Friend J. Austin. The Davises and Thomason, the father of Mrs. Davis, were also made parties. The defendants Gill and wife, appellants herein, joined in an answer; certain other defendants joined in a motion to dismiss, attacking the jurisdiction of the court for lack of requisite diversity of citizenship. On April 5, 1920, the appellee filed its amended supplemental bill, and by consent the answer of the Gills to the former bill and the motions to dismiss were taken to apply to the said amended supplemental bill. The motions to dismiss were denied; the court holding that the, People's Abstract & Title Company was not an indispensable party. The defendants who had filed said motions then filed their answers, each denying fraud and pleading on information and belief that Thomason, their grantor, obtained title to all of said premises by purchase in good faith, for a valuable consideration, and without knowledge or notice of claims of right or interest on the part of the appellee, or of any matter which would put them upon inquiry. Upon final hearing the court by its decree sustained the validity of the trust deed and the pledges of security, adjudged that the proceeding for registration under the Torrens Act was instituted and conducted for the purpose of defrauding the appellee of its security, that the decree therein was procured by fraud upon the court, that the appellee was intentionally omitted as a party, and that the decree therein was not binding upon it; that at the time when said real and personal property so mortgaged and pledged was conveyed to the defendants, who claimed to own the same, each of said defendants had notice that the Austins were indebted to the appellee in accordance with the terms of said promissory note, and that the note was secured as alleged in the bill of complaint; that none of the defendants was a bona fide purchaser without notice of the appellee's rights; that the claims of the Gills were junior and subordinate to the liens, claims, and charges of the appellee under the deed of trust and the mortgages and pledges. Foreclosure and sale were ordered to satisfy the debt due to the appellee. From that decree the appeal is taken. Joe Crail, Harold C. Morton, F. Von Schrader, Barker & Keithly, Donald Barker, and Harry A. Keithly, all of Los Angeles, Cal., for appellants. Joseph L. Lewinson, of Los Angeles, Cal., for appellee. Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges. GILBERT, Circuit Judge (after stating the facts as above). [1] We are not convineed that it was error to deny the appellants' motion to dismiss the suit for want of juris 19 F.(2d) 880 diction. It is contended that, while the bill was framed with the appellee, a citizen of Utah, as complainant, and against all of the defendants, including the trustee, as citizens of California, the trustee should have been aligned as a co-complainant, in which case the requisite diversity of citizenship would be lacking. It is to be observed that the deed to the trustee, while it conveys the legal title, also vests in the "legal holder of the note" the power to declare the note payable on default of interest, and in case of foreclosure the power in the "then legal holder" to have a receiver appointed to take possession of the property described in the conveyance. Is the trustee an indispensable party? The court below was of the opinion that, by virtue of the default entered in the Torrens proceeding, the trustee had been judicially foreclosed of any right or interest in the property, and that it was immaterial whether it was in or out of the case. It is true that the presence of a trustee of property conveyed as security for the payment of bonds may be indispensable in a case where there is more than one beneficiary of the trust and interests therein are diverse, as in First Nat. Bank v. Radford Trust Co. (C. C. A.) 80 F. 569, where Judge Lurton held that the trustee was a necessary party for the purpose of establishing the complainant's rights to the bonds it held and the application of the proceeds of the foreclosure sale to the same. But in the present case there was but one debt, secured by the trust deed, and there is but one legal holder of the promissory note. The appellee demands nothing of the trustee, and the trustee can demand nothing of the appellee. The prayer of the complaint is that the deeree in the Torrens proceeding be vacated and declared null and void, so far as it affects the interest of the appellee in the property described in the trust deed, and that a decree of foreclosure and sale be ordered. Although the trust deed purports to convey the title, it is intended as a mortgage, and under the law of California is declared to be a mortgage. Hollywood Lumber Co. v. Love, 155 Cal. 270, 100 P. 698. "When the purpose of the trust ceases the estate of the trustees also ceases." Sacramento Bank v. Alcorn, 121 Cal. 379, 53 P. 813. In Sidney Stevens Impl. Co. v. South Ogden Land Co., 20 Utah, 267, 58 P. 843, it was held that where the trustee is not vested with the legal title, or with a beneficial interest in the trust, and the common law has been so modified that no legal title passes by the deed of trust or mortgage, the reason of the rule which requires the presence of the trustee fails, and in such jurisdictions the trustees are not indispensable parties to an action of foreclosure. In Bates v. New Orleans B. R. & V. R. Co. (C. C.) 16 F. 294, Judge Coxe said: "The real contention in this case is between the plaintiff and the Louisiana corporations. The defendants McCook and Alexander, who are citizens of New York, are sued merely in their representative character as trustees. Their connection with the controversy is collateral and subsidiary to the main issue. Their presence on the record may be necessary to effectuate the relief sought by the plaintiff, but their citizenship ought not to be considered on the question of removal." In Interstate Refineries v. Barry (C. C. A.) 7 F.(2d) 548, the court said: "James N. Johnson, the trustee in the mortgage, was a proper party, but he was not an indispensable party, because he has no personal interest in it or in the property; because no relief is asked against him personally, because the bill does not contain any averment or showing that any of the notes that were to be secured by the mortgage have ever passed into the hands of any innocent purchasers for value, and because Johnson, neither as a person, a trustee, or otherwise, nor any of the holders of such notes, are now parties to this suit; because no decree in this suit can estop or bind any of them if they do not intervene in this suit, and either he or they may at his or their option intervene herein and protect any rights they may have in this suit." In Walden v. Skinner, 101 U. S. 577, 25 L. Ed. 963, it was held that jurisdiction was not defeated by the fact that with the principal defendant were joined as nominal parties the executors of a deceased trustee, citizens of the same state as the complainant. [2] The appellants contest the jurisdiction in equity on the ground that the appellee had an adequate remedy at law, and they cite the decision of this court in Eggers v. Krueger (C. C.) 236 F. 852, in which it was held that a defendant, who knew within four weeks from the date thereof that a judgment had been rendered against him, had an adequate remedy at law under the provisions of section 473 of the Code of Civil Procedure of California, which provides that a court may on motion within six months relieve a party from a judgment taken against him through his mistake, inadvertence, or excusable neglect. The answer to the contention is that the judgment under the Torrens Act here involv ed was not taken against the appellee. The appellee was not a party to the proceeding, nor was it named therein, nor was its assignor, the Delta Company, served with process there in, nor was the judgment taken through the appellee's mistake, inadvertence, or neglect. Lapham v. Campbell, 61 Cal. 296; Baker v. O'Riordan, 65 Cal. 368, 4 P. 232. And even if the appellee had been made a party in that proceeding, the remedy under section 473 would not have been adequate, for neither were the appellants nor any of the other parties defendant, except the Austins and the Belfords, made parties to the registration proceeding. In a separate suit, not only could the appellee bring those parties into court, but the remedy by an original suit tried not upon affidavits, but upon testimony taken in open court, is ampler and more efficacious. Estudillo v. Security Loan, etc., Co., 149 Cal. 556, 87 P. 19. [3] Without merit is the contention that the appellee was bound by the default judgment rendered against the People's Abstract & Title Company in the registration proceeding. The trust deed lodged in the trustee no authority to represent the beneficiary in that proceeding. Without such express authority the trustee could not bind the beneficiary in a proceeding such as that which was wholly extraneous to his trust. 19 R. C. L. 272, International Trust Co. v. United Coal Co., 27 Colo. 246, 60 P. 621, 83 Am. St. Rep. 59; Lebeck v. Ft. Payne Bank, 115 Ala. 447, 22 So. 75, 67 Am. St. Rep. 51; Collins v. Lofftus & Co., 10 Leigh (37 Va.) 5. [4] We find no ground to disturb the decision of the court below in denying the appellant Thomas E. Gill protection as an innocent purchaser. Section 37 of the Torrens Law provides that in case of fraud the person defrauded shall have the rights and remedies he would have if the land were not under the provisions of the act: Provided, that nothing contained in that section should affect the title of a registered owner "who has taken bona fide for a valuable consideration." It is quite evident that Gill, who was a real estate operator and for many years had been engaged in buying and selling farm lands and loaning money on mortgages, had knowledge of facts and circumstances sufficient to put him upon inquiry. That a default had been taken against the trustee of a $55,000 note was in itself a fact so significant as to suggest the necessity of further investigation, there having been no trial of issues and no surrender of the note. Also significant was the fact that the default rested upon the single affidavit of a private individual of service upon a corporation in a foreign state, and the fact that, while in the registration proceeding the water stock was plainly included in the trust deed, no reference was made to it in the judgment or in the certificate of title. The water stock, as the court below found, and as Gill himself must have known, was a "very valuable asset," and without it the land was practically valueless. Gill was told that either Austin or Thomason, to whom Austin had just conveyed the land, had lost the water stock; but he made no inquiry as to the circumstances under which it had been lost, or the possibility of its recovery. Another suggestive fact that came to Gill's attention was that Austin, who had long been the owner of the land, was still in possession and living thereon, notwithstanding that he had conveyed it to Thomason. Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 12 S. Ct. 239, 35 L Ed. 1063; Krueger v. United States, 246 U. S. 69, 78, 38 S. Ct. 262, 62 L. Ed. 582; Coder v. McPherson (C. C. A.) 152 F. 951, 953; Prouty v. Devin, 118 Cal. 258, 50 P. 380; Follette v. Pacific L. & P. Corp., 189 Cal. 193, 208 P. 295, 23 A. L. R. 965. [5] It is contended that the appellee's cause of action was barred by the time limitation provided by the Torrens Law, and that the trial court erred in holding otherwise. Section 45 of said law provides that no action at law or in equity shall be brought for the recovery of land or an interest therein after one year following the first registration, and that the provisions of the act "shall in no way affect or disturb the rights of any person in said land, acquired subsequent to the registration thereof, bona fide and without knowledge and for a valuable consideration." The appellee's original bill was filed within two months after the date of the decree of registration. Two months later, on April 16, 1918, the appellants appeared as interveners and answered. Their answer was subsequently struck from the files, but on January 23, 1920, when they were brought into the case as parties defendant by the supplemental bill, they answered without pleading the Torrens Law statute of limitations. Subsequently their application for leave to amend their answer and set up the one-year statute of limitations was denied, the trial court holding that the matter rested in its discretion, ample opportunity having been given the appellants when they first appeared to set up the bar of the statute. That statute is not available to the appellants here, for the reason, as we have found, that they were not bona fide purchasers for 19 F.(2d) 885 value. Section 106 of the Torrens Law provides that, in case of fraud, any person defrauded shall have all rights and remedies that he would have had, if the lands were not under the provisions of the act. Section 45 is not a general statute of limitations. It applies only to special cases, and to be available it must be pleaded specially. Howell v. Rogers, 47 Cal. 291. And in any view of the construction of the said statute, we are of the opinion that the suit was commenced in apt time, and that the appellants made themselves parties thereto when they filed their answer as intervenors. Keystone Coal & Coke Co. v. Feketo (C. C. A.) 232 F. 72. We find no error. The decree is affirmed. GALVIN ELECTRIC MFG. CO. v. EMER- Circuit Court of Appeals, Eighth Circuit. No. 7608. 1. Patents 112(3)—Issuance of patent for combination raises presumption, claims are valid combinations. Issuance of a patent for combination raises presumption that claims of patent are valid combinations. 2. Patents 26(1)-Introduction of new element into recognized combination, producing new and useful result, or old result in new, more efficient, way, constitutes "Invention." If the introduction of a new element in a recognized combination produces, through the coaction of all the elements, an entirely new and useful result, or an old result in a new, more facile, economical, and efficient way, it constitutes "invention." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Invention.] 3. Patents 53-"Anticipation" is not made out by fact that prior existing device in different art may, by redesigning, be applied to patent in suit. "Anticipation" is not made out by fact that prior existing device in a different art may be used in patent in suit, where it would take more than the skill of an ordinary mechanic to modify such device for use in device of patent in suit, and the fact that it could be so used was not previously discovered. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Anticipation.] 4. Patents 26(2)-Combination of old elements is patentable, if it produces a new and useful result, or an old result in a new and better way. Combination of old elements is patentable, if it produces a new and useful result, or effects an old result in a new and materially better way. 5. Patents 328-1,256,121, claims 1-4, for Improvements in oscillating mechanism of electric fans, held valid and infringed. Patent No. 1,256,121, claims 1-4, for improvements in the oscillating mechanism of electric fans commonly used in homes and offices, held valid, unanticipated, and infringed. Appeal from the District Court of the United States for the Eastern District of Missouri; Charles B. Faris, Judge. Patent infringement suit by the Emerson Electric Manufacturing Company against the Galvin Electric Manufacturing Company. Decree for plaintiff, and defendant appeals. Affirmed. John H. Bruninga, of St. Louis, Mo., for appellant. Lawrence C. Kingsland, of St. Louis, Mo. (John D. Rippey, of St. Louis, Mo., on the brief), for appellee. Before LEWIS and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge. PHILLIPS, District Judge. This is an appeal from a decree in a suit for infringement of a mechanical patent, brought by the Emerson Electric Manufacturing Company Galvin Electric Manufacturing Company (hereinafter called plaintiff) against the (hereinafter called defendant), in which the patent was sustained and infringement found. The patent involved is No. 1,256,121. The application was filed by Herbert I. Finch and Thomas M. Meston, on September 10, 1917. The patent issued February 12, 1918, to the plaintiff as assignee. It is for certain improvements in the oscillating mechanism of electric fans of the general type commonly used in homes and offices. The purposes of the device are set forth in the specification as follows: "It is the purpose of our invention not only to provide an arrangement whereby the selective variation of adjustment is rendered practically infinite, so that any adjustment of the fan's oscillatory stroke between maximum and zero may be made, but also to pro vide a device of greatly simplified construction, one in which the necessary adjustments may be made very easily, both while the fan is operating or stationary, one in which the selected adjustment, though easily accomplished when desired, may not be changed by the ordinary operation of the device, thus insuring its permanency, and to provide a device in which the various operating parts are entirely housed and protected and entirely free from casual disorders." The following claims are involved: "1. In a fan, an oscillating mechanism including a rotary member, means for rotating the same, a block carried by the rotary member and movable across the axis of rotation thereof, a thrust link having pivotal connection with said block, a stationary pivotal connection for the other extremity of said link, and an adjusting member supported on the rotary member and adjustable relative thereto about the axis thereof, there being operative connection between said adjusting member and said block whereby the latter may be moved toward and from the axis of the rotary member by adjustment of said adjusting member. "2. In a fan, an oscillating mechanism including a rotary member, means for rotating the same, a block carried by the rotary member and movable relative thereto, a thrust link having pivotal connection with said block, a stationary pivotal connection for the other extremity of said link, an adjusting member carried by the rotary mem Fig.1 ber and adjustable relative to said block and said rotary member about the axis of the latter, and an operative connection between said adjusting member and said block whereby the point of connection of the link on the block may be moved into and out of the rotary axis of the rotary member. "3. In a fan, an oscillating mechanism comprising the combination of a rotary member, means for driving the same, an adjusting member supported by said rotary member and rotatable concentrically relative thereto, a block carried by the rotary member and movable transversely thereof, an operative connection between the adjusting member and said block whereby the latter may be moved relative to the rotary member by rotation of the former, and a thrust link having pivotal connection at one end with said block and at the other end with a stationary mounting. "4. In a fan, an oscillating mechanism including the combination of a rotary member, means for rotating the same, an adjusting member adjustable about the axis of the rotary member, a block adjustable spacially relative to the axis of the rotary member, an operative connection between the adjusting member and the block whereby the latter may be moved by adjustment of the former, and a thrust link having pivotal connection at one extremity with the block and at the other extremity with a fixed mounting." We here reproduce Figures 1, 2, 3, 4, and 5 of the patent drawings: |