land to Samuel C. Young, which incidentally gave him a right to the certificate of purchase as a muniment or evidence of title (Jackson v. Hyde, 91 Cal. 463; Henderson v. Grammar, 66 Cal. 332), was duly recorded on June 18, 1864, and there is no suggestion or pretense that he was not personally known to the attorney for the state at the time he commenced the action, it being alleged only that his "true name" was unknown to plaintiff. Yet it is true that the statute (act of April 9, 1861, sec. 2) 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," etc. Assuming that, under the circumstances above stated, service of summons by merely posting copies thereof as directed by the statute was due process of law, surely a substantial compliance with that statute was necessary to effect such service. But while the judgmentroll shows what was done to effect service of summons, it fails to show a substantial compliance with the statute. The statute requires one copy of the summons to be posted for "three weeks at the courthouse door of the county, and two copies in public places in the township where the 640 land is situate"; but the return of the sheriff, indorsed on the summons, fails to show that any copy of the summons was posted "at the door" of the courthouse, or even on the courthouse "for three weeks," or for a single day; and also fails to show that two copies were posted in the township "for three weeks," or for any specific period of time. A posting of a copy "on the courthouse" elsewhere than "at the door," even for the period of three weeks, would have been a substantial and material departure from the requirement of the statute. The obvious reason for requiring it to be posted "at the door" was that it would more probably be seen and read at that point than at the rear, or on any other part of the courthouse. These defects in the return of the sheriff cannot be supplied or cured by presumption, although they might have been supplied by a recital of due service in the judgment. "Where the record is silent as to what was done, it will be presumed that what ought to have been done was not only done, but rightly done; but when the record states what was done, it will not be presumed that something different was done. If the record merely shows that the summons was served on the son of the defendant, it will not be presumed that it was served on the defendant. If the affidavit of the printer shows that the summons was published one month, it will not be presumed that it was published three": Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742; Quivey v. Porter, 37 Cal. 462;

Hastings v. Cunningham, 39 Cal. 143. These cases have not been overruled in respect to the above quotation from Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742; Estate of Newman, 75 Cal. 213; 7 Am. St. Rep. 146. The following cases are also specifically in point: People v. Greene, 74 Cal. 400; 5 Am. St. Rep. 448; Hyde v. Redding, 74 Cal. 493; People v. Mullan, 65 Cal. 396.

The judgment purporting to annul the certificate of purchase to Goodhue being void, and the assignees of Goodhue having fully paid both principal and interest of the purchase price as early as October 24, 1865, if not 641 a year earlier, it follows that the state had no beneficial interest in the land in 1888 when it issued a certificate of purchase to the defendant Maddux, nor in 1893 when it issued to him a patent; and, consequently, such patent to Maddux conveyed no title to him.

After the purchase price was fully paid by Goodhue and his assignees, the holder of the certificate of purchase, issued to him in 1856, was the owner of the land, the state being merely a naked trustee of the legal title, which it was and still is bound to convey to the equitable owner on demand; and, therefore, had no power to sell the land to another. A vested right to a patent from the state for public land is equivalent to a patent, so far as the state is concerned: Stark v. Starrs, 6 Wall. 402; Wirth v. Branson, 98 U. S. 118; Benson Min. Co. v. Alta Min. Co., 145 U. S. 432; Huff v. Doyle, 93 U. S. 558; Pratt v. Crane, 58 Cal. 533; McCabe v. Goodwin, 106 Cal. 488. That plaintiff's title was sufficient to support this action against the defendants to quiet it is clear: Pennie v. Hildreth, 81 Cal. 130; Orr v. Stewart, 67 Cal. 275.

The only other matter to be considered arises from the following additional facts: In December, 1888, the plaintiff, as the successor in interest to Peter Goodhue and John Doe, who were the defendants in the action to annul the certificate of purchase, moved the court to set aside judgment in that case purporting to annul the certificate on the grounds: 1. That the court never obtained jurisdiction of the person of the defendant John Doe; and 2. That the purchase price of the land had been fully paid before the commencement of that action. The superior court denied the motion. The plaintiff herein appealed from the order denying it, and this court affirmed the order, on the ground of the great lapse of time between the date of the judgment and the making of the motion to set it aside, viz., twenty-three years. This court, by Mr. Justice Works, said: "We know of no pro

vision of law which can be held to authorize the 642 vacation of a judgment on a mere motion after so long a time": People 7. Goodhue, 80 Cal. 199.

The respondent contends that this order denying plaintiff's motion to set the judgment aside, and the affirmance of it by this court, are conclusive of the validity of the judgment against the merely collateral attack made upon it in this case.

But no question as to the validity or regularity of the judgment was decided by this court. It was only decided that the judgment could not be reviewed on a mere motion after so long a time. If the judgment was void before the motion, neither the order denying the motion nor the affirmance of that order by this court imparted to the judgment any force or validity. It has been held that the affirmance by an appellate court of a void judgment imparts to it no validity; and especially if such affirmance is put upon grounds not touching its validity. I think Mr. Van Fleet, in his book "Collateral Attack," section 16, correctly states the law applicable to this case as follows:

"In order to make a judgment void collaterally, either 1. A legal organization of the tribunal; or 2. Jurisdiction over the subject matter; or 3. Jurisdiction over the person must be wanting; or 4. One or more of these matters must have been lost after it once existed. When either of these defects can be shown, the judgment and all rights and titles founded thereon are void, even in the hands of a bona fide purchaser. In such cases, the dignity of the court is of no concern. Thus, where a void judgment had been affirmed on appeal by the supreme court of Texas, the court said: "The judgment of affirmance rendered by this court could not impart to it validity, but would itself be void by reason of the nullity of the judgment appealed from': Chambers v. Hodges, 23 Tex. 104, 110. The supreme court of Mississippi said that the affirmance of a void judgment on appeal, upon grounds not touching but overlooking its invalidity, did not make it valid: Wilson v. Montgomery, 14 Smedes & M. 205, 207. When a 643 judgment is lacking in any of the foregoing particulars, it matters not whether it was rendered by the highest or the lowest court in the land-it is equally worthless. No one is bound to obey it. The oath of all officers, executive, legislative, or judicial, compels them to disregard it. few cases hold that want of jurisdiction over the person does not make the judgment of a superior court void (Gay v. Smith, 38 N. H. 171, 174; dictum in Kimball v. Fisk, 39 N. H. 110, 116; 75 Am. Dec. 213), but they are out of line, and wrong on principle.

I think the finding of the court that defendants owned the land in question is not justified by the evidence, and that the order and judgment appealed from should be reversed and the cause remanded for a new trial.

Haynes, C., and Searls, C., concurred.

For the reasons given in the foregoing opinion, the order and judgment appealed from are reversed and a new trial granted. Garoutte, J., Van Fleet, J., Harrison, J.

Hearing in Bank denied.

Beatty, C. J., dissented from the order denying a hearing in Bank.

APPEAL AFFIRMANCE OF VOID JUDGMENT. - When a judgment sued on is affirmed on appeal, and the defendant submits himself to the jurisdiction of the appellate court, he cannot assail it, on the ground that the trial court never acquired jurisdiction of his person: Roach v. Privett, 90 Ala. 391; 24 Am. St. Rep. 819.

PUBLIC LANDS-CERTIFICATES-RIGHTS OF HOLDERS OF. A certificate of purchase from the United States land-office, issued prior to the patent, conveys the absolute title, and a patent subsequently ac quired relates back to the date of said certificate: Cavender v. Smith, 3 G. Greene, 349; 56 Am. Dec. 541. See, also, the notes to the following cases: Leveroni v. Miller, 91 Am. Dec. 694; Henry v. Welch, 23 Am. Dec. 492; Jackson v. Ramsay, 15 Am. Dec. 254.

RECORDS-PRESUMPTIONS IN FAVOR OF.-Legal presumptions do not come to the aid of records, except as to acts or facts as to which the record is silent. Want of jurisdiction appears on the record whenever what was done is stated, and which, having been done, was not sufficient in law to give the court jurisdiction: Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742, and note.

CASES

IN THE

SUPREME COURT OF ERRORS

07

CONNECTICUT.

EISING V. ANDREWS.

[66 CONNECTICUT, 58.]

SURETYSHIP-LIABILITY

OF PRINCIPAL.-If no cause of action exists against a principal on a bond, there can be none against the surety. Hence, if a cause of action for the breach of the condition of a bond, as for converting moneys received as a collector to the obligor's own use, is fraudulently concealed by the principal, so that in law it cannot be deemed to have accrued, as against him, until first discovered by the plaintiff and obligee, it cannot be deemed to have accrued before such discovery as against the surety.

LIMITATION OF ACTION.-The fraudulent concealment, by the principal on a bond, of a cause of action against himself, not only prevents the running of the statute of limitations in his favor, but it also stops the statute from running in favor of his surety.

Action on a bond given by the defendant's testator as surety. There was a judgment for the plaintiff, and the defendant appealed.

Howard B. Scott, for the appellant.

Lyman D. Brewster and John D. Perry, for the appellee.

61 ANDREWS, C. J. The plaintiff is the only living partner of the late firm of E. Eising & Co. The defendant is the sole surviving executor of the will of Thomas F. Fay, late of Danbury, deceased. In his lifetime Fay had become obligated in a bond as surety for one Thomas F. Rowan, as principal, for which he bound himself, his heirs, executors, and administrators jointly and severally with the said Rowan, in the penal sum of two thousand dollars to the said E. Eising & Co., conditioned that the said Rowan, who had been employed by the said firm

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