1883. Within fifty days after the approval he made the first payment, as required by law, and subsequently made full payment, and, on December 8, 1888, received a patent for the land applied for.

On May 5, 1883, W. W. Averill made application to purchase the east half of said section, and he was then qualified to make the purchase. His application was in proper form, and was approved October 2, 1883. Within fifty days after the approval he made the first payment, and thereafter a certificate of purchase was issued to him, which he assigned to the defendant Thomas W. Carter, who made full payment, and on May 14, 1886, received a patent for the land so applied for.

On February 4, 1889, on motion of Schwartz, an order was made by the superior court of San Bernardino county, vacating and setting aside the said judgment entered against him in the district court of that county on December 12, 1876, upon the ground that the said court never acquired or had any jurisdiction of the person of the defendant, for the reason that no affidavit or order of the court was ever made for the publication of summons in the action, and no service of summons was made on the defendant, and the defendant never appeared in the action.

Notice that a motion would be made to vacate the said judgment of foreclosure against Schwartz was given to the district attorney of the county, but not to any one else, and no one of the defendants in this action had any notice or knowledge of the motion, or was present at the hearing thereof in person or by counsel.

On June 26, 1889, Schwartz tendered to the treasurer of San Diego county the balance due for principal and interest on his said certificate of purchase, if the same was still valid and in force, and thereafter on July 9, 1889, this action was commenced.

Other facts are found, and several questions based upon them are elaborately discussed by counsel, but the principal and controlling question in the case, and the only one which need be decided, relates to the validity

and effect of the order of May 4, 1889, vacating the judgment of foreclosure; for if that order was void, then the judgment here appealed from must be affirmed.

It is well settled that a judgment which is void upon its face, and which requires only an inspection of the judgment-roll to show its invalidity, may be set aside on motion by the court rendering it at any time after its entry (People v. Greene, 74 Cal. 400; 5 Am. St. Rep. 448), and also that a judgment which is in fact void for want of jurisdiction over the person of the defendant, but where its invalidity does not appear from the judg ment roll, may be set aside upon motion within a reasonable time after its entry. (Norton v. Atchison etc.

R. R. Co., 97 Cal. 388; 33 Am. St. Rep. 198.)

Whether a judgment is void upon its face or not can only be determined by an inspection of the judgmentroll, and, when the service is by publication, the affidavit and order for publication are no part of the roll, and cannot be considered. (In re Newman, 75 Cal. 213; 7 Am. St. Rep. 146; Sichler v. Look, 93 Cal. 600) And what is a reasonable time within which a motion may be made to set aside a judgment, not void upon its face, must depend somewhat upon the circumstances of each particular case, and is not definitely determined further than that it will not extend beyond the limit fixed by section 478 of the Code of Civil Procedure.

When a judgment is not void upon its face, the court has no power to set it aside on motion, unless the motion is made within a reasonable time, but resort should be had to an action, and all the parties interested should be notified and have an opportunity to be heard. (People v. Goodhue, 80 Cal. 199; People v. Harrison, 84 Cal. 607; Moore v. Superior Court, 86 Cal. 495; Jacks v. Baldez, 97 Cal. 91.)

The case in which the order now under review was made was one in which service by publication was authorized by statute (Pol. Code, sec. 3549), and in which, under all the decisions, state and federal, a valid judg ment could be rendered upon such service. The judg

ment-roll in the case contained all the papers constituting the judgment-roll when service is by publication (Code Civ. Proc., sec. 770), and they were all in proper form and sufficient. It was therefore immaterial in the proceeding referred to that no affidavit or order for the publication of the summons was found among the papers in the case, and that there was no entry in the records that any such affidavit or order was ever made, inasmuch as, if found, they could not have been considered.

The judgment was not void upon its face, and could not, upon that ground, be set aside on motion. The motion was made more than twelve years after the judg ment was entered, and was not within a reasonable time. The court had no power, therefore, to grant the motion, and its action in doing so must be held void, and of no effect.

It results that the judgment appealed from should be affirmed.

SEARLS, C., and VANCLIEF, C., concurred.

For the reasons given in the foregoing opinion, the judgment appealed from is affirmed.

MCFARLAND, J., FITZGERALD, J., HARRISON, J.

Hearing in Bank denied.

[No. 19322. Department Two.-July 30, 1894.]

JOHN H. GAY, JR., APPELLANT, v. D. D. DARE ET AL., DEFENDANTS. S. G. HAVERMALE, RESPOND

ENT.

CORPORATIONS-CONTRACT

FOR PURCHASE OF STOCK-INSOLVENCY OF NATIONAL BANK-PAYMENT OF ASSESSMENT.-Where a subscriber to the stock of a national bank, which afterwards became insolvent, had agreed with other stockholders that they would take the stock from him at the end of a year at the price paid for it, at his option, for the amount of his investment, and pay him ten per cent interest on the investment, they are bound to take the stock at the time agreed, upon notice of the option; and if they neglect and refuse so to do, they

become liable not only for the amount of principal and Interest as agreed, but also for the amount of an assessment levied by the controller of currency of the United States upon the stock of the insolvent bank to pay its debts, which the subscriber was compelled to pay, and did pay, to the receiver of the bank.

ID. PURCHASE OF STOCK-ASSESSMENTS AFTER BREACH OF CONTRACT.One who contracts to purchase stock on a given date must take it at the time indicated in his contract cum onere, and if he fails to do so he is liable not only for the purchase price and interest, but also for all assessments levied upon the stock after his breach of the contract, which his vendor is compelled to pay thereon.

ID. OPTION TO RETURN PURCHASED PROPERTY-RESCISSION OF CONTRACT.— Where a purchaser of chattels pays the price, ard stipulates that if he so desires he may return the property and receive back the price paid upon the exercise of the option, a rescission of the contract takes place, and the title at once vests in the original vendor. ID. TENDER OF STOCK-REFUSAL OF PAYMENT-Trust-REIMBURSEMENT or EXPENSES.-Upon a tender of stock purchased, where the purchaser has the option to return the stock and receive reimbursement of the price with interest from the vendors, and they have refused to accept the stock and pay the money agreed, the purchaser holds the stock as trustee for the vendors, and as such trustee is entitled to reimbursement of all necessary expenses for which he becomes liable and has paid by virtue of his position as such trustee. ID.-BREACH OF CONTRACT-MEASURE OF DAMAGES-ASSESSMENT UPON STOCK-PROXIMATE RESULT.-Under section 3300 of the Civil Code, which provides that for the "breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which in the ordinary course of things would be likely to result therefrom," an assessment upon stock agreed to be purchased which the vendor is compelled to pay as a consequence of the refusal of the defendants to take the stock at the time they had agreed to do so is a proximate result of their refusal.

APPEAL from a judgment of the Superior Court of San Diego County.

The facts are stated in the opinion.

Hunsaker, Britt & Goodrich, for Appellant.

Wellborn, Stevens & Wellborn, and Clarence L. Barber. for Respondent.

SEARLS, C.-The California National Bank of San Diego was a national banking corporation organized under the laws of the United States, and having its place of business at San Diego, California.

On the twentieth day of January, 1891, plaintiff subscribed for one hundred shares of the capital stock of said corporation, and paid therefor the sum of twelve thousand five hundred dollars.

In consideration of plaintiff's subscribing for and payment of said sum of money for said stock, the defendants herein jointly and severally agreed with him in writing that in the event of said plaintiff "wishing to sell the said stock, at the end of one year from the date of issue, we (the defendants) will take said stock at the price paid for it, and allow the said John H. Gay, Jr. (plaintiff), ten per cent on the investment of twelve thousand five hundred dollars for the time said money was invested. Interest payable from the time the money is paid in. Said John H. Gay, Jr., agrees to give the undersigned four months' notice of his desire to dispose of said stock.

[SIGNED] "D. D. DARE.

"S. G. HAVERMALE. "J. W. COLLINS."

On the fifteenth day of September, 1891, plaintiff wishing to sell said stock in pursuance of the terms of said agreement, gave to the defendants notice of his desire to dispose of said stock to them pursuant to the terms of said agreement, and four months thereafter, on, to wit, January 20, 1892, plaintiff offered to return said stock to defendants, and demanded of them performance of said agreement, and that they take and pay him for said stock said sum of twelve thousand five hundred dollars and interest from January 20, 1891, at ten per cent per annum, which defendants refused to do.

After plaintiff gave the defendants the four months' notice of his desire to sell the stock to them, but before the tender thereof and demand, as above stated, viz., on the twelfth day of November, 1891, the California National Bank of San Diego aforesaid became and was, and ever since has been, insolvent.

Plaintiff thereafter brought this action to recover the