— I dissent. In this case it appears that the defendant corporation, was the trustee of an express testamentary trust. Plaintiff is the beneficiary. In that capacity it transferred $10,000 of the trust funds to itself in its individual capacity to be and which was used by it in making a loan it made to a third person; the loan was secured by a trust deed on real property. In order to complete the loan it put other funds with the $10,000, and established a trust to hold the note and trust deed given by the debtor. It then issued participating certificates in the last-mentioned trust, one of which was transferred to it as trustee for the benefit of the trust here in question. The two chief allegations in the complaint are first that no permit was obtained by defendant from the corporation commissioner to issue or transfer the participating certificate to the trust pursuant to the Corporate Securities Act. (Stats. 1917, p. 673; Peering’s Gen. Laws, 1937, Act 3814), and, second that defendant falsely represented to plaintiff in 1932, 1933, 1934, 1935, 1936, 1937, 1938, 1939, and 1940, that the sale of the participating certificate to the trust was authorized by law, that it was carefully selected, and that a permit therefor had been obtained from the corporation commissioner. Plaintiff believed and relied upon those false representations to her damage.
The majority opinion holds that an order settling the account of the trustee named in the trust is res judicata upon the validity of the purchase of the participating certificate by defendant trustee, and therefore is a bar to plaintiff’s action. It refuses however, to determine the question of whether or not the certificate was embraced within the Corporate Securities Act, and hence, that a permit was necessary. That issue should have been decided.
If the permit was required for the certificate and none was obtained, the sale of the certificate to the trust by defendant was void. A transaction falling within the terms of the Corporate Securities Act is declared by that Act to be void if no permit therefor is obtained. (Stats. 1917, p. 673, sec. 16.) The order of the probate court approving that transaction, is also void, if the rule stated in Hunter v. Superior Court, 36 Cal.App.2d 100 [97 P.2d 492], is followed. It is there declared that a judgment based upon a void contract is itself void. (See People v. Burke, 72 Colo. 486 [212 *716P. 837, 30 A.L.R. 1085]; Campbell v. McCownel, 214 Ill.App. 342; Bredin’s Appeal, .92 Pa. 241 [37 Am.Rep. 677]; Dial v. Kirkpatrick, 168 Okla. 21 [31 P.2d 591].) If the order settling the defendant trustee’s accounts is void then it cannot be res judicata inasmuch as a void judgment is not res judicata. (15 Cal.Jur. 102.)
It is no answer to the foregoing proposition to say that the invalidity of the participating certificate did not appear upon the face of the judgment roll in the proceedings and order settling the trustee’s account, because the complaint may well be construed as alleging an action for equitable relief from the order. A prayer therefor is not made but plaintiff should be permitted to amend her complaint to state such an action. Furthermore, it must be remembered that this appeal is from a judgment entered as an order sustaining a demurrer to plaintiff’s complaint. All the allegations of that complaint must be deemed admitted for the purpose of ruling upon the demurrer. Hence, it must be admitted that no permit was obtained from the corporation commissioner. An admission by defendant of the facts establishing the invalidity of a judgment justifying relief therefrom, is read into and considered a part of the record or judgment roll of the judgment attacked. (Thompson v. Cook, 20 Cal.2d 564 [127 P.2d 909].)
Thus, we must read into the order settling the account a determination that no permit was obtained for the participating certificate. The result is that the order is void upon its face and hence, is not res judicata. Under the present status of the ease we are not now concerned with what may or may not be defendant’s defense to the action, or what it may or may not admit by its answer.
Considering the second main allegation of the complaint, that charging fraudulent misrepresentations on the part of defendant, it is to be noted that the time of the making of those representations in each instance is just a short time prior to the filing by defendant of its annual accounts from 1932 to 1940. It must be taken as true that at those times defendant falsely stated to plaintiff that a permit had been obtained from the corporation commissioner. Such representations would be relied upon by plaintiff and prevent her from making any objection to the accounts. Certainly if she had known of the falsity of those representations she would *717have filed objections to the accounts. It is alleged that she did rely upon those representations, and although it is alleged that she did so to her damage rather than that she failed to object to the accounts for that reason, she should be permitted to amend her complaint to make such allegation. Liberality should be the guide for this court in determining upon appeal that amendments to pleadings should be permitted in order that a trial upon the merits may be had. (See Wennerholm v. Stanford Univ. Sch. of Med., 20 Cal.2d 713 [128 P.2d 522, 141 A.L.R. 1358].)
The foregoing discussion assumes that the fraudulent representations would constitute extrinsic fraud and hence make the order in probate subject to attack and relief in equity. That it would be such fraud cannot be doubted, if plaintiff was thereby prevented from contesting the accounts filed by defendant. She was deprived of her day in court. It was said by this court in Caldwell v. Taylor, 218 Cal. 471, 476 [23 P.2d 758, 88 A.L.R. 1194], involving an attack on a probate order:
“Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud and deception practiced on him by his opponent, as by keeping him away from court, a false promise of compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff, or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat, or where the attorney regularly employed corruptly sells out his client’s interest to the other side — these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and fair hearing.”
See also the case of Larrabee v. Tracy, L. A. No. 18084, ante, p. 645 [134 P.2d 265], decided by this court on February 25, 1943.
In my opinion the judgment should be reversed and the case disposed of on its merits.