dissenting. I regret that I cannot concur in the opinion of the Court in this case. His Honor having found as a fact that a summons was served upon the defendant ten days before the first day of the term and the plaintiff having filed and verified the complaint within the first three days, the defendant was in default in that he filed no answer during the term, nor obtained an extension of time therefor. This presents the question as to the status of the case at the last moment of the term. The several sections of The Code must be read together and so construed as to bring about a harmonious and orderly system of procedure. . The plaintiff complied strictly with section 233 of The Code by setting forth in the complaint a concise statement of the facts constituting his cause of action. The defendant within the time fixed should have filed a demurrer or an answer. If a demurrer, he should have set forth his grounds thereof; if an answer, it should have contained a general or specific denial of each material allegation of the complaint controverted by him, or of any knowledge or information thereof sufficient to form a belief, and in addition thereto, if he so desired, any new matter by way of avoidance or counter claim. Upon his failure to do either within the time prescribed it is expressly provided that “Every material allegation of the complaint not controverted by the answer * * * shall for the purpose of action be taken as true.” Section 268 of The Code. In this condition of the record the inquiry arises as to what is the next step to be taken. Section 385 provides that, “where complaint sets forth one or more causes of action, each consisting of the breach of an express or implied contract to pay, etc., upon proof of personal service, etc., and upon the complaint being verified, judgment shall be entered at the return term for the amount mentioned in the complaint, etc., and where the defendant, by his answer in such an action, shall not deny the plaintiff’s claim, *111but shall set up a counter-claim, etc.” Section 386 provides that “In all actions, except those mentioned in the preceding section, when the defendant shall fail to answer, and upon a like proof, judgment by default and inquiry may be had at the return term, and inquiry shall be executed at the next succeeding term. If the taking of an intricate or long-account be necessary to execute properly the inquiry, the Court, at the return term, may order the account, etc.; in all other cases, the inquiry shall be executed by a jury, unless by consent the Court is to try the facts as well as the law.” It is manifest that this section of The Code relates to causes of action for the recovery of money, either by way of damages for breach of contract, or action sounding in tort. It will be observed that this action is neither, but may be assimilated under the practice prevailing prior to the adoption of The Code to a bill in equity to quiet and remove cloud from title. The action is brought under chapter 6 of the Laws of 1893, entitled “An act to determine conflicting-claims to real property,” and the complaint states a cause of action coming within the terms of this act. In the condition of the pleadings at the last moment of the return term of the Court there was nothing to be tried by a jury, nothing in respect to which inquiry was to be made. As the record then stood, no issues could be formulated because an issue arises “upon a material allegation in the complaint controverted by the answer.” . Section 393. This leads us to inquire as to the effect of a failure to answer. We find by referring to the practice prevailing prior to the adoption of The Code that “on the expiration of the time for pleading, a rule to plead having been given, and a plea demanded, when necessary the plaintiff’s attorney should search for a plea, if not delivered to him, with the clerk of the papers who receives special pleas in the King’s Bench, and with the clerk of the judgments who keeps the general issue book *112at tlie King’s Bench office, or at the prothonotaxies’ office in the common pleas; and if no plea be delivered or found at either of those offices the plaintiff’s attorney may sign judgment as for want of a plea.. A judgment by default is interlocutory or final. When the action sounds in damages, as in assumpsit, covenant, trover, trespass, etc., the judgment is only interlocutory, That the plaintiff ought to recover his damages,’ leaving the amount of them to be afterwards ascertained. In debt, the judgment is commonly final, etc.” Tidd’s Practice, page 563. It will be observed that in almost if not every form of action at common law, except debt, damages were demanded as a part of the recovery, either for the purpose of ascertaining the value of the recovery or as detinue, trover and replevin, etc., for the value of the property and damages for the detention. It is therefore probable that in every judgment by default, except in debt, the judgment was by default and inquiry. This may not be strictly accurate, but is sufficiently so for the purpose of this discussion. In courts of equity where no answer was filed to the bill it was the privilege of the plaintiff to have a decree pro confesso. “The proceeding which is termed taking a bill pro confesso is the method adopted by the Court for rendering its process effectual where the defendant fails to appear and answer by treating the defendant’s contumacy as an admission of the complainant’s case, and by making an order that the facts of the bill shall be considered as true, and decreeing against the defendant according to the equity arising upon the case stated by the complainant.” Beach on Modern Eq. Prac., section 191. The mode of procedure in taking the bill pro confesso is prescribed by rules of courts. It is only necessary to inquire for the purpose of this discussion as to the effect of the decree pro confesso upon the right of the plaintiff to proceed to final decree. If the allegations in the bill are distinct and positive they *113may be taken as true without proof. “The defendants are concluded by that decree, so far at least as it is supported by tbe allegations of the bill, taking the sajne to be true. Being carefully based on these allegations, and not extending beyond them, it cannot now be questioned by the defendants unless it is shown to be erroneous by other statements contained in the bill itself. A confession of facts properly pleaded dispenses with proof of those facts and is as effective for the purposes of the suit as if the facts were proved, and a decree pro confesso regards the statements of the bill as confessed.” Thompson v. Wooster, 114 U. S., 104. This Court has held in accordance with the rules of practice prevailing in courts,of law and equity that “All facts averred in the complaint, and not controverted by the defendant, must be taken as true for the purposes of the action.” Oates v. Gray, 66 N. C., 442, Dick, J., saying: “The object of The Code was to abolish the different forms of action and the technical and artificial modes of pleading used at common law, but not to dispense with the certainty, regularity and uniformity which are essential in every system adopted for the administration of justice. The plaintiff must state his cause of action with the same substantial certainty as was formerly required in a declaration; and the defendant must controvert the allegations of the complaint, or they will be taken as true for the purposes of this action.” The Constitution has not abolished the principles of equity, indeed it could not; on the contrary it fully recognizes them, and they must be applied as far as may be under the existing statutory method of procedure, but when that is silent and inadequate, by the method and practice of the late court of equity in this State. Morisey v. Swinson, 104 N. C., 555. It has been further held that by a failure to deny the allegations in the answer, the fact is admitted and the effect of the admission is as available to the plaintiff as if found by *114the jury. Bonham v. Craig, 80 N. C., 224. Or, as is said in Cook v. Guirkin, 119 N. C., 13, has the same force and effect as a finding of the jury.
After a default the defendant may not be heard to deny any facts set forth in the complaint, but he may be heard in respect to the judgment or decree tendered by the plaintiff upon his complaint. The plaintiff may have upon the failure to answer the complaint such judgment as upon the facts stated he is entitled to, and the defendant may be heard to object to the form of the judgment tendered. The failure to answer does not admit that he is entitled to the relief demanded, but that he is entitled to such relief as the law gives him upon the facts alleged. This Court in McLeod v. Nimocks, 122 N. C., 437, says: “The defendant does not complain of that part of the judgment which institutes an inquiry as to the damages which the plaintiff may have sustained by reason of the matters set out in the complaint, but he insists that the judgment by default final, for the conversion of the cotton and embezzlement of the proceeds, 'is such a judgment as could not have been rendered under section 386 of The Code. We think his contention not well founded. The action sounded in damages and was for a tort. The tortious conduct of the defendant was set forth in the complaint as the l?asis for demanding the damages. The judgment by default and inquiry, the defendant having said nothing in answer to the plaintiff’s complaint, was conclusive that the plaintiff had a cause of action against the defendant of the nature- declared in the complaint, and would have been entitled to nominal damages without any proof. Thai cause of action was admitted by the defendant’s failure to answer.” .Here no damages were demanded and there was nothing to submit to the jury, the facts alleged in the complaint having been admitted by the failure to answer. We therefore think, that upon failure to answer, the plain*115tiff was entitled to sucb relief in accordance with the facts stated in the complaint, and that by failure to answer the defendant could not call upon the plaintiff to make proofs of these facts. It would be a strange result if the new Code of Procedure, the purpose of which is to simplify and expe^ dite remedial justice, should work out this result. That the plaintiff may take judgment in an action of this kind for want of an answer is shown by section 2 of chapter 6 of the Laws of 1893, “that if a defendant in such action shall disclaim in such answer any interest in the estate or property or suffer judgment to be taken against him in such answer, plaintiff could not recover cost.”
An examination of the complaint and judgment develops the fact that in this respect the judgment is erroneous, in that it taxes the defendant with the cost. The judgment is strictly in conformity to the relief to which the plaintiff is entitled upon the facts set forth in his complaint. The plaintiff alleges that one Lasker was, on October 14, 1899, the owner of the land in controversy. That on said day he executed a mortgage containing power of sale, which was duly recorded October 23, 1899; a certified copy of-the mortgage is attached to the complaint. That said mortgage was given to secure a note of $25,000 due on October 14, 1902, with interest from date of payment quarterly, and that upon default in payment of interest the power of sale should be executed. That on April 8, 1901, the mortgagee, pursuant to the power of sale, there having been default in the payment of interest, sold the land after advertisement, etc., and that plaintiff purchased, paid the purchase-money and took deed therefor; a certified copy of the deed is attached to the complaint. That after the execution and registration of the mortgage certain judgments were recovered and docketed against said Lasker. That the defendant had execution issued on said judgment, and after the sale under the *116mortgage, August 11, 1902, bad tbe laud sold and purchased at said execution sale and took deed from the sheriff therefor; a certified copy of the deed is attached to the complaint. That at the time of issuing said execution the judgment debtor was dead. That the plaintiff claims title to said land under said sheriff’s deed, etc. That said deed is a cloud upon plaintiff’s title. These facts being admitted by the failure to answer, there can be no possible doubt of plaintiff’s right to the relief demanded, under chapter 6, Laws 1893. Daniel v. Fowler, 120 N. C., 14; Rumbough v. Mfg. Co., 129 N. C., 9; Bispham Eq., section 474; Beach Modern Eq., 556, 558. The question is important to the courts and to the profession. I am quite sure, from an experience on the Superior Court bench and at the bar, that in all actions for the recovery of property, when no damages are claimed, or when it is not necessary to assess the value of the property, as well as in actions for relief formerly sought in courts of equity fixing rights of property, etc., it is and has been for many years the custom to take judgment by default final in accordance with the facts stated in the verified complaint. The law as held by the Court in this case will render many judgments taken in accordance with the course and practice of the Court irregular, and I cannot but think seriously delay and embarrass the administration of remedial justice. By simply standing mute the defendant can in actions of this character, and others in which no damages or an uncertain amount is demanded, put the plaintiff to the expense and annoyance of proving the allegations of his complaint. I must confess, with all deference, that I would be at a loss to know what issue should be submitted to the jury in this case. There is not a material allegation of the complaint controverted. Should an issue be submitted upon each allegation as if denied, or the general issues? I think great confusion must ensue from the construction put upon *117the several sections of The Code. There is another view of this case upon which I think the judgment of his Honor should be affirmed, conceded that the judgment is irregular in the respect pointed out by the Court. It is held by this Court that such a judgment will not be set aside unless the defendant sets forth facts showing prima facie a valid defense, and the validity of the defense is for the Court and not with the party. Jeffries v. Aaron, 120 N. C., 167. The defendant 'based his motion to set this judgment aside upon the ground that the summons was not served on him ten days before the first day of the term. After a war of affidavits, which I have examined, his Honor, it seems to me, could not have done otherwise than refuse the motion. In the case on appeal it is stated that the defendant did not at any time request the Court to find any of the facts set forth in the affidavit except as to the date of the summons. He attached to .his original affidavit an answer which he proposed to file. An examination of it shows that although he denies, as of his own knowledge, the existence of documents, papers and records, of which it is difficult to understand how he could be ignorant, he does not really, and seriously he does not really, taking his entire answer, set up any substantial defense to the action. He swears to many legal conclusions, such as that the mortgage and deed of the plaintiff are void, for that he says in his brief there is no allegation that they were stamped, and it does not so appear from the copies taken from the registry. I cannot think that from any point of view the plaintiff should be put to further test or trouble in this case.
This Court has frequently held that an irregular judgment may be set aside at any time. The safety of titles to property dependent upon the validity of such judgment was secured by the principle announced in Jeffries v. Aaron, supra, which seems to be overruled by the decision in this *118case. I cannot but think that the doctrine now announced will endanger many titles, as in suits for foreclosure of mortgages and many other actions affecting title to land. The case of Jeffries v. Aaron cannot be distinguished from the one before us. It is a motion to set aside a judgment by default final upon an open account. Faircloth, C. J., says: “The motion is not put upon the ground of mistake, surprise or excusable neglect.” This Court reversed the Court below, setting aside the judgment. See also, Stancil v. Gay, 92 N. C., 455; Peoples v. Norwood, 94 N. C., 167.
I cannot think that from any point of view the plaintiff should be put to further test or trouble in this case.
Walker, J., concurs in the dissenting opinion.