to make the order complained of. The order of adjudication was an appealable order, and the effect of the appeal from that order was to stay "all further proceedings in the court below upon the judgment or order appealed from, or upon the matters embraced therein." (Code Civ. Proc., sec. 946; Dennery v. Superior Court, 84 Cal. 7; Pennie v. Superior Court, 89 Cal. 31.) Pending the appeal the superior court had no more power to modify the order appealed from in the manner indicated than it would have had to proceed and enforce it in its entirety. The effect of the appeal is to remove the subject matter of the order from the jurisdiction of the lower court, and that court is without power to proceed further as to any matter embraced therein until the appeal is determined. (Ruggles v. Superior Court, 103 Cal. 125.)

It is contended, however, by respondent that the appeal "is from the judgment and decree adjudging the said R. P. Thomas insolvent, and not from the order creating the stay," and that therefore the court was not prevented from modifying the stay order. This argument is based upon the assumption that that part of the order of adjudication declaring the insolvency and the part staying proceedings are separate and distinct orders, in no way dependent upon each other. This position is untenable. The order is one order, containing different and somewhat distinct adjudications it is true, but still a single order, the different features of which are dependent upon each other. (Insolvent Act, sec. 6.) The appeal is "from the judgment and decree made. and filed in this matter adjudging the said R. P. Thomas insolvent, and from the whole of said judgment and decree." It is apparent that the appeal was intended to embrace every part of said order, and the language is sufficiently comprehensive to make the intention effectual.

It is further urged by respondent that the order made by the superior court was solely with a view and purpose of preserving the property of the insolvent for the

creditors, and that this the court had a right to do. It is undoubtedly the duty and within the power of the court to keep the property of the estate intact and to preserve it from loss or spoliation, and to adopt proper measures to that end (Dennery v. Superior Court, 84 Cal. 7); but it is not authorized for such purpose more than another to travel outside its jurisdiction. Assuming, as is claimed by respondent, that the only object of the order in question was for the protection of the rights of all the creditors, which is not clearly manifest from the nature of the order itself, it was wholly unnecessary for the purpose, even had it been proper. If it be true, as asserted, that the insolvent had, prior to filing his petition in insolvency, made a fraudulent transfer of his interest in the homestead property for the purpose of covering it up and preventing any excess in value from coming to his creditors, there existed a plain and adequate remedy by which his act could be defeated and the property recovered. It was perfectly competent for Chetwood, the judgment creditor, to bring an action, on behalf of himself and the other creditors, to set aside such transfer as in fraud of creditors. Such an action is not within the prohibition of section 45 of the Insolvent Act. Even though necessary to make the insolvent a party, it would not be an action against him upon a debt or obligation provable against his estate, but to recover from his fraudulent vendees, for the benefit of the estate, the property so transferred. As such it would not contravene the order staying proceedings, even if the latter remained in force. The case of Miller v. Kehoe, ante, p. 340, presents such an instance. Here, however, the stay order was suspended by the appeal, and no question could therefore arise as to the right to maintain such an action.

The order complained of should, therefore, be annulled, and it is so ordered.

GAROUTTE, J., MCFARLAND, J., IIENSHAW, J., and HARRISON, J., concurred.

Rehearing denied.

[No. 19546. Department One.-June 28, 1895.]

THE PEOPLE EX REL. JOHN LYNCH ET AL., APPELLANT, v. HANNAH E. HARRISON, RESPONDENT.

STATE SCHOOL LAND-FORECLOSURE OF CERTIFICATE OF PURCHASESERVICE OF SUMMONS-VOID JUDGMENT.-A judgment of foreclosure of a certificate of purchase of state school land rendered without personal service upon the holder of the certificate, and upon a publication of summons not based upon any affidavit or order of publication, is void.

ID.-POWER TO SET ASIDE JUDGMENT.-The court has no power to set aside a judgment foreclosing a certificate of purchase upon evidence not found in the judgment-roll, where more than six months have elapsed since its rendition.

ID.-ACTION TO CANCEL SECOND CERTIFICATE-ADMISSIONS OF INVALIDITY OF JUDGMENT.-In an action brought by the people upon relation of the holder of a patent from the state to school land, the ertificate of which was foreclosed, upon publication of summons, to cancel a second certificate of purchase of the same land issued to another, where the complaint alleges that the holder of the certificate foreclosed never appeared in the foreclosure action, nor was summons ever served upon him personally, nor was an affidavit ever made by any one to obtain an order of publication of summons, nor was any order ever made in said action authorizing the service of summons by publication, and none of these allegations are denied in the answer, upon appeal upon the judgment-roll from a judgment canceling the second certificate of purchase, the judgment of foreclosure appears upon the judgment-roll appealed from to have been void.

ID. IMPEACHMENT OF JUDGMENT-SERVICE OF SUMMONS-PROOF OF INVALIDITY.-Although a judgment not void upon its face cannot be impeached by evidence showing a want of service of summons, if such evidence is objected to, yet, where evidence is admitted to that effect without objection, or the parties stipulate or admit that there was in fact no service of summons, it is the duty of the court to declare the judgment void, as matter of law, upon the admitted facts.

ID.-DEFECTIVE APPLICATION FOR SCHOOL LAND-EFFECT OF CURATIVE ACT.-An affidavit for the purchase of school land, though substantially defective, filed prior to the curative acts of 1870 and 1872, is validated as against a second certificate obtained subsequent to the passage of those acts.

ID. JUDICIAL NOTICE OF CURATIVE ACTS-PLEADINGS.-The curative acts of 1870 and 1872 are essentially general acts, of which the court will take judicial notice, and it is not necessary either to allege their existence or prove them at a trial involving their application to a prior defective certificate of purchase.

ID. CONSTRUCTION OF CURATIVE ACT-DATE OF TITLE OF STATE IMMATERIAL-CONTRACT OF PURCHASE.-The fact that the title to the land applied for did not vest in the state until a subsequent listment of the

land to the state is not an element entering in any degree into the construction of the curative act of 1870, which validates a contract of purchase with the state, regardless of the time of the acquisition of its title.

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

The facts are stated in the opinion of the court.

E. C. Marshall, attorney general, W. J. Curtis, J. C. Lynch, and M. L. Wicks, for Appellant.

The defects in Mullan's certificate of purchase were validated by the curative act of 1870. (Stats. 1869-70, p. 352; People v. Noyo Lumber Co., 99 Cal. 460; Copp v. Harrington, 47 Cal. 241.) The fact that the state had not received title at the time of the certificate of purchase does not avoid the contract of purchase. (Easton v. Montgomery, 90 Cal. 315; 25 Am. St. Rep. 123.) The ownership of the land was not material to the effect of the curative act. (Rowell v. Perkins, 56 Cal. 226; Muller v. Carey, 58 Cal. 542; Upham v. Hosking, 62 Cal. 259; Northern Ry. Co. v. Jordan, 87 Cal. 28; People v. Jackson, 62 Cal. 554.) The judgment foreclosing the certificate of purchase was void. (People v. Pearson, 76 Cal. 400.) The record in the present case shows that the judgment is void. (Norton v. Atchison etc. R. R. Co., 97 Cal. 396; 33 Am. St. Rep. 198; Hill v. City Cab Co., 79 Cal. 191.)

O'Melveny & Henning, and H. T. Hazard, for Respondent.

The curative act of 1870. was a private act, and should have been pleaded as new matter. (Ellis v. Eastman, 32 Cal. 448; Pomeroy's Code Remedies, sec. 673.) Under the findings the Mullan certificate was void. (Hildebrand v. Stewart, 41 Cal. 387.) The lands did not belong to the state until listed in 1874. (Roberts v. Gebhart, 104 Cal. 67.) The service of summons by publication was sufficient under the Political Code.

(Pol. Code, sec. 3549.) The decree of foreclosure of Mullan's certificate was improperly set aside. (Code Civ. Proc., sec. 473; People v. Harrison, 84 Cal. 608.)

GAROUTTE, J.-This is an action to cancel a second certificate of purchase of school lands, the state having made a prior sale on which the patent has issued. The township survey, embracing the land in controversy, was approved by the United States surveyor general for California September 18, 1868, and the map was duly filed in the United States land-office July 7, 1869. John Mullan made application to the surveyor general to purchase the land January 15, 1869, and upon August 18th of the same year the surveyor general of the state applied to the United States land-office for the same land. About August 21, 1869, the surveyor general approved Mullan's application, and issued to him the customary certificate, which, in due time, Mullan presented to the county treasurer of San Bernardino county (in which county the land was situated), and paid the treasurer the full amount due thereon, to-wit, twenty-five per cent of the principal and one year's interest; and thereupon the register of the land-office issued to Mullan a certificate of purchase for the land. Mullan's application to purchase was defective in this, that the affidavit accompanying the same failed to contain a description of the land sought to be purchased, as provided by the statute in such cases. Upon the first day of September, 1874, the land involved was listed to the state, and Mullan made all payments due thereon, up to and including the year 1876.

In the year 1880 an action was brought by the district attorney of San Bernardino county to foreclose Mullan's interest under his certificate of purchase, based upon his failure to make the payments demanded by the statute, and this action went to judgment, as prayed for in the complaint, January 4, 1881, and a copy of such judgment was filed in the land office. Upon December 21, 1882, respondent Harrison made