and thereby personate another person for the purpose of inducing the public to suppose either that he is that other person or that he is connected with and selling the manufacture of such other person while he is really selling his own. It is perfectly manifest that to do these things is to commit a fraud, and a very gross fraud." In the very recent case of Coats v. Merrick Thread Co., 149 U. S. 562, the court said: "There can be no question of the soundness of the plaintiff's proposition, that, irrespective of the technical question of trademark, the defendants have no right to dress their goods up in such manner as to deceive an intending purchaser and induce him to believe he is buying those of the plaintiffs. . . . . They have no right, by imitative devices, to beguile the public into buying their wares under the impression they are buying those of their rivals": To the same point see Dr. Jaeger's Sanitary Co. v. Le Boutillier, 24 N. Y. Supp. 890; Apollinaris Co. v. Scherer, 27 Fed. Rep. 18; Burgess v. Burgess, 3 De Gex, M. &. G. 896; Von Mumm v. Frash, 56 Fed. Rep. 830.

Having decided that defendant's acts constitute a fraud upon plaintiff, and that a court of equity will administer 543 relief, the question then presents itself, What shall be the form of the decree? How may the court reach the wrong? The defendant had the right to erect his building, and erect it in any style of architecture his fancy might dictate. He had the right to erect it in the particular locality where it was erected. He had the right there to conduct a business similar to that of plaintiff. He had the right to do all these things, for, of themselves, they did not offend against equity; but when they were done with a fraudulent intent, when they were done for the purpose of tolling away the customers of plaintiff by a deception, a fraud is practiced, and equity will do what it can to right the wrong. The decision of the trial court in effect ordered defendant to place signs both inside and outside his building, showing to the world the proprietorship thereof. We think this decree holds defendant to a rule too strict, in that it requires the proprietorship of the store to be shown. In this particular we think the decree should be modified so as to require that the defendant in the conduct of this business shall distinguish his place of business from that in which the plaintiff is carrying on his business in some mode or form that it shall be a sufficient indication to the public that it is a different place of business from that of the plaintiff.

For the foregoing reason the judgment in this respect only is reversed, and the cause remanded with directions to the trial

court to modify the same as heretofore suggested, and thereupon it is ordered that said judgment stand affirmed. Appellant is to pay the costs of this appeal.

Harrison, J., and Van Fleet, J., concurred.

TRADE NAME-FRAUDULENT INFRINGEMENT.-AN INJUNCTION will issue to restrain the piracy of plaintiff's trademark, the distinguishing feature of which is used in combination with others to constitute a trademark or brand so similar in appearance as probably to deceive customers of plaintiff's business: Listman Mill Co. v. Willam Listman Milling Co., 88 Wis. 334; 43 Am. St. Rep. 907, and note. An exclusive right may be acquired in the name in which a business has been carried on, whether the name of a partnership or of an individual, and it will be protected against infringement by another, who assumes it for the purpose of deception, or even when innocently used, without right, to the detriment of another: Chas. S. Higgins Co. v. Higgins Soap Co., 144 N. Y. 462; 43 Am. St. Rep. 769, and note.

PIONEER LAND COMPANY V. MADDUX.

[109 CALIFORNIA, 633.]

VOID JUDGMENT.—If, in an action by the state to foreclose a certificate of purchase of state land, the name of the holder of the certificate is alleged to be unknown, and he is sued under a fictitious name, the provisions of the statute for service of summons by posting must be substantially complied with, and if the return indorsed on the summons, and the record fail to show such compliance, the defects cannot be supplied by presumption, and a judgment by default foreclosing the certificate upon such return is void for want of jurisdiction.

PUBLIC LANDS-CERTIFICATE OF PURCHASE-RIGHTS OF HOLDER UPON PAYMENT.-The holder of a certificate of purchase of state land, who has fully paid the purchase price thereof, is the equitable owner of the land, with a vested right to a patent from the state. The state is then merely a naked trustee of the legal title, which it is bound to convey to such equitable owner on demand, and it has no right thereafter to sell and convey the land to another, even though it has obtained a void judgment foreclosing the certificate of purchase of such owner before he has fully paid the purchase price.

PUBLIC LANDS-TITLE OF HOLDER OF CERTIFICATE OF PURCHASE.-The holder of a certificate of purchase of state land who has fully paid the purchase price thereof, has a vested right to a patent and sufficient title to support an action to quiet title against a subsequent patentee from the state.

VOID JUDGMENTS-COLLATERAL ATTACK.-If a judgment is void, its validity is not affected by the denial of a motion to vacate it, made many years after its rendition, nor by the affirmance on appeal of the order denying the motion to vacate. Such affirmance is not conclusive of the validity of the judgment as against a collateral attack.

VOID JUDGMENTS.-Affirmance of a void judgment on appeal does not impart any validity to it, especially if it is affirmed on grounds not touching, but overlooking, its invalidity.

Daggett & Adams, for the appellant.

Lamberson & Middlecoff, for the respondents.

635 VANCLIEF, C. Action to quiet plaintiff's alleged title to forty acres of swamp land situate in the county of Tulare. In 1856 Peter Goodhue applied to purchase the land in question from the state on a credit cf five years, pursuant to section 5 of "An act to provide for the sale of swamp and overflowed lands belonging to this state" (approved April 28, 1855; Stats. 1855, p. 189), and thereupon such proceedings were regularly taken as entitled him to a certificate of purchase, under section 8 of said act, and such certificate was issued to him on May 30, 1856. Goodhue inclosed the land, and resided thereon until October 28, 1861, when he conveyed the same by deed, and delivered possession thereof to Marshall D. Young, who thence resided thereon and maintained the inclosure until February 1, 1864, when he conveyed the same 636 by deed, and delivered possession thereof to Samuel C. Young, who thence resided thereon and maintained the inclosure until May 10, 1870, when he, by deed, conveyed the same to Daniel Murphy, who then entered into possession of the land, kept it inclosed, and used it for grazing purposes until October, 1882, when he died testate. Thereafter, such proceedings were regularly taken in the matter of the estate of Daniel Murphy that the land in question was distributed by the superior court, according to the will, to Daniel M. Murphy and Dians Murphy Hill. On February 9, 1885, Daniel M. Murphy conveyed by deed all his interest in the land to Diana Murphy Hill, who, on June 2, 1887, conveyed the whole thereof to William Thomas, who, on June 3, 1887, conveyed the same to plaintiff.

Daniel Murphy, during his lifetime, and his executors and devisees thereafter until March 30, 1888, held possession of the land by a sufficient inclosure, and used it for pasturing livestock, and paid the taxes thereon for every year during all that time. The land was assessed to plaintiff in the spring of 1888, and plaintiff paid the taxes for that year. All the deeds above mentioned were duly recorded.

The defendants entered upon the land in June, 1888, claiming it to be unsold swamp land, and made application to purchase the same from the state, and procured from the state a certificate of purchase on February 1, 1892.

On October 28, 1892, this action was commenced and defendants filed their answer, claiming title by virtue of the last-mentioned certificate of purchase. On March 10, 1893, and before

the trial of this action, the state issued and delivered to defendant R. A. Maddux, a patent for the land, as alleged in a supplemental answer of the defendants, filed May 9, 1893.

A book in the office of the county treasurer introduced as evidence by the defendants, an extract from which is contained in the record, shows that the principal and interest of the purchase price (one dollar per acre, with interest at ten per cent per annum) was fully paid by Peter Goodhue and his successors in interest as follows:

637

"Visalia, Tulare county, California, No. 33. Peter Goodhue's survey of swamp land in town 21 south, range 27 east, section 25, Mount Diablo, containing forty acres. Surveyed March 25, 1856, S. W. of S. E. 4, section 23. Filed May 30, 1856. 1857, In. $4.00. July 18th received on the above $4.00. 1859, May 31st, by one year's interest, $4.00. 1862, September 15th, by two years' interest, $8 00. 1864, October 24th, by principal and two years' interest in full, $48.00."

Respondent contends, however, that the last item of this account (forty-eight dollars) was not paid until October 24, 1865; but in view of the ground, wholly independent of this, upon which I think the judgment should be reversed, it is immaterial whether the last payment was made on October 24, 1864, or on October 24, 1865, since it is admitted that the treasurer's account is correct, except as to the date of the last item, and that the last item of forty-eight dollars was paid as early as October 24, 1865.

On the eighteenth day of May, 1865, the people of the state, by the district attorney of the county of Tulare, commenced an action against Peter Goodhue and John Doe to annul the certificate of purchase issued to Goodhue in 1856, pursuant to an act of the legislature approved April 9, 1861 (Stats. 1861, p. 140), authorizing the forfeiture and annulling of such certificates of purchase for nonpayment of interest or principal of the purchase price of lands sold by the state on a credit. It was averred in the complaint that "said defendant John Doe, whose true name is unknown to plaintiff, claims to be the holder of said certificate of purchase, and to have an interest in said land adverse to plaintiff. That on the 16th day of November, 1864, there was remaining due plaintiff from defendant, and which had been due for more than thirty days, two years' interest on said lands, to-wit: The sum of eight 638 dollars, said sum of interest still remains due and unpaid; defendant is delinquent as aforesaid, and has thereby forfeited all his right, title, claim, and interest in said lands." At the

and

that

time this action to annul the certificate was commenced, and during the whole period of its pendency, Samuel C. Young was in possession of the land, claiming to own the same by virtue of his recorded deed from M. D. Young.

The only evidence of service of summons on the defendants is the return of the sheriff indorsed thereon as follows:

"Sheriff's Office,

"Tulare County.

"I hereby certify that I received the within summons on the 29th day of May, A. D. 1865, and personally served the same on Peter Goodhue, defendant therein named, by delivering to him a copy of said summons, attached to a certified copy of the complaint in said action, and also served the within summons on unknown owners sued under the fictitious name of John Doe, by posting a copy of the within summons in two public places in the township in which the real estate described in the complaint is situated, and one copy on the courthouse in Visalia, Tulare county.

"Dated July 29, 1865.”

Section 2, page 140, of said act of April 9, 1861, provides: "If the name of the holder of the certificate of purchase be not known, he may be sued under a fictitious name, and service of summons may be had by posting one copy of the summons, containing a description of the land, for three weeks, at the courthouse door of the county, and two copies in public places in the township where the land is situate."

The judgment annulling the certificate, and declaring all rights of the defendant to the land forfeited, was taken by default, on October 30, 1865. It recites that the default of the defendants "for not appearing or answering has been duly entered"; but does not recite 689 that summons had been served in any manner on either of the defendants.

The court below found that the plaintiff was not the owner of any estate in the land described in his complaint, but that defendants were the owners thereof; and thereupon adjudged that plaintiff take nothing by this action. The plaintiff appeals from the judgment, and from an order denying his motion for a new trial. Counsel for appellant contends that the judgment purporting to annul the certificate is void, and that it so appears upon the face of the judgment-roll; and so it appears to me.

There was no service of summons on Samuel C. Young, who was the holder of the certificate and in possession of the land at the time the sheriff posted the copies of the summons, and who was sued by the fictitious name of John Doe. The deed of the