dissenting: This was an action of ejectment. The parties waived a jury trial and agreed that the judge should find the facts and apply the law thereto and render judgment. It was conceded that both parties claimed title under Lee Fuller as the common source. The defendant admitted that he was in possession, holding adversely to the plaintiff.
In 1896 Lee Fuller was the owner in fee of the locus in quo (11% acres of land). On 28 January, 1896, he executed to Ií. T. Jenkins a deed which upon its face purported to be in fee, conveying to him the said tract, which deed was duly registered. To Spring Term, 1898, of Swain he brought an action against Jenkins to have the said deed declared a mortgage. Judgment was rendered in favor of defendant at July Term, 1901, of Swain, but on appeal this Court held, in Fuller *156v. Jenkins, 130 N. C., 554, opinion filed 27 May, 1902, tbat said deed, upon tbe facts found, was a mortgage. When tbe opinion went down, by arrangement between tbe parties tbe debt was settled, and a judgment was entered at July Term, 1902, of Swain, conveying tbe title to tbe wife of Lee Fuller, wbo was not a party to tbe action, and, so far as it appears, without any consideration. Tbe decree did not direct tbat it should be recorded as a conveyance, and, besides, Revisal, 566, 567, authorizes such decree only as to a party or cestui que trust, and Lee Fuller’s wife was neither.
In tbe meantime judgment bad been obtained, 9 January, 1900, in tbe Federal court against Lee Fuller on a distiller’s bond, which judgment was docketed in Swain 21 February, 1900, and was a lien from tbat date. Revisal, 576. This tract of land was also levied upon 27 March under execution from tbe Federal court on tbat judgment, and after due advertisement was sold on 7 May, 1900, at which sale tbe United States became tbe last and highest bidder and tbe deed was made accordingly 23 May, 1900, and duly registered 11 June, 1900. On 11 March, 1909, under proceedings in accordance with law, tbe Commissioner of Internal Revenue conveyed said tract to tbe defendant M. F. Brendle, which deed was duly recorded in Swain 2 April, 1909. Tbe levy and return of sale merely mentions tbe “11% acres of land, tbe property of Lee Fuller.” But docketing tbe judgment gave tbe lien without describing any property, and tbe conveyance by tbe United States marshal to tbe United States and tbe later conveyance to tbe defendant sufficiently described tbe property, which is admitted to be tbe locus in quo, and both these deeds were duly registered.
Tbe judge finds as a fact tbat Lee Fuller directed bis counsel wbo drew the decree at July Term, 1902, to convey this land to Fuller’s wife, S. J. Fuller, but by mistake be named S. H. Fuller as tbe grantee. Tbe judge finds as a fact tbat tbe person intended was Josephine Fuller, tbe wife of Lee Fuller, wbo bad by name of Josephine Fuller joined in tbe conveyance to Henry T. Jenkins on 28 January, 1896, to release her dower, and tbat tbe intention was to convey it to her by this decree, and tbat S. J. Fuller and Josephine Fuller are one and tbe same person, and tbat she is tbe person wbo by mistake was named as S.' H. Fuller in said decree, and tbat she has never been known as S. H. Fuller, but by mistake in drawing'tbe deed she was designated S. II. Fuller instead of S. J. Fuller.
On 15 January, 1903, Lee Fuller and wife, S. J. Fuller, conveyed said tract of land to plaintiff Margaret Evans, which was duly recorded in Swain.
It was earnestly contended before us tbat tbe decree conveying tbe property to S. H. Fuller, even though S. J. Fuller was intended, did not *157carry the title, and that it would first be necessary to bring an action to correct the deed. This is unnecessary under our system of procedure combining legal and equitable remedies. As it is found as a fact that S. J. Fuller was intended when by mistake S. H. Fuller was named, and that S. J. Fuller, the party named, is Josephine Fuller, the wife of Lee Fuller, who joined in the conveyance to Jenkins in 1896, and who made the subsequent deed, her husband being joined, to the plaintiff in January, 1903, this is sufficient if the grantee (by whatever name) obtained the title under such decree. The name used is merely a designation to identify the party, and when that identity is established a variation in name, and especially a difference in the middle letter, as S. H. Fuller instead of S. J. Fuller, is immaterial.
In Words and Phrases (second series), under the title “Name,” it is said: “The common law recognizes but one Christian name, and a middle initial may be dropped or changed at pleasure.” It is further said: “In law the name of a person consists of one given name and one surname.”
In this State our statutes have indicated the comparative unimportance of an exact identity in name when the identity of the person is shown. For instance, it is provided that if the name of a payee is wrong, Revisal, 2192; or if a defendant in a civil action is erroneously named, this may be corrected by amendment, Revisal, 510; and in criminal actions, if the defendant is wrongly named, upon his making a plea to that effect, instead of quashing the indictment the court will change the name to accord with the defendant’s plea. There are many other instances showing that the question depends upon the identity of the person and not the accuracy in naming the person. When a woman marries she changes her surname in this and many other countries (though not in Spain and other Spanish-speaking countries), and usually substitute the initial of her maiden name for the former middle initial. In England when a man is raised to the peerage his name is changed, as when John Churchill became Duke of Marlborough, or John Scott became Lord Eldon. A pope on his election always changes his name.
A young man who obtained his license to practice law and was elected to the Legislature as Thomas Carter Ruffin became Chief Justice of this Court as Thomas Ruffin. In the same way Stephen G. Cleveland became Governor of New York and President as Grover Cleveland. He who graduated at college as Thomas W. Wilson became Governor of New Jersey and President of the United States as Woodrow Wilson, and Hiram H. Grant, having been accidentally misnamed in his appointment to West Point as Ulysses S. Grant, bore that name as commander in chief of the armies and President of. the United *158States. Under bis non de plume Mark Twain became famous, but was comparatively unknown as Samuel L. Clemens; so Yoltaire’s real name was Arouet, and Moliere’s true name was Poquelin. Among numerous other instances was the private soldier, Victor Perrin, who became Marshal Victor, and another of Napoleon’s marshals, Jean Baptiste Jules Bernadotte, ascended the throne of Sweden and Norway as Charles XIV, John. These and numerous other cases instance the correctness of the common-law rule that it is the identity of the person and not the identity of the name which governs. The finding of the judge settles that is was Josephine Fuller who was intended as grantee, instead of S. H. Fuller, in the decreé of the court at July Term, 1902.
The decree, however, attempting to convey title to the wife of Lee Fuller did not have any effect, for it is not authorized by the statute, Revisal, 566, 567, because of the failure to declare that it “shall be regarded as a deed of conveyance.” Morris v. White, 96 N. C., 93, which holds that a decree does not operate as a conveyance unless it expressly declares that it shall be so regarded. In that case it is said: “It is essential that it shall so declare to give it the full effect of a proper conveyance of the land. It seems probable that the court intended that it should have such effect, but it is not sufficient for that purpose. • Such statutory provisions must always be strictly observed, as to their essential provision.”.
The plaintiff must'recover upon the strength of her own title; and this alleged conveyance by virtue of the decree of the court is invalid for the further reason that it has not been registered in the manner required by Revisal, 568, which provides: “The party desiring registration of such judgment shall produce to the register a copy thereof, certified by the clerk of the court in which it is enrolled under the seal of the court, and the register shall record both the judgment and certificate.” The attempted certificate of the clerk upon which his attempted registration was had shows that there was nó compliance with the language of the statute, Revisal, 568, and it was error to admit it in evidence. There is no seal of the court attached, and the certificate does not certify that it is made “under the seal of the court,” but only “Witness my hand and official signature.” The judgment not having been properly recorded would not avail the plaintiff, even if color of title, Janney v. Robbins, 141 N. C., 400; and the plaintiff cannot allege color of title, for she has shown no possession at any time in herself or in S. J. Fuller. Even if the court had been authorized to render such judgment, it had no authority to do so, for two distinct reasons-. There were only two parties to the action in which this judgment was rendered, Lee Fuller and H. T. Jenkins, and the purpose of that action was to have a certain deed, which was upon its face a conveyance in *159fee, declared a mortgage and a reconveyance to plaintiff ordered. On reference to the decision of this Court in Fuller v. Jenkins, 130 N. C., 554, it will be seen that judgment was rendered for defendant in the court below, which was reversed here, with a direction that “The defendant (Jenkins) should reconvey, and in default of payment by plaintiff (Lee Fuller) of balance due by a day named, there should be a foreclosure. Upon the certificate of this judgment of this Court nothing remained to be done by the Superior Court but to enter judgment in accordance with this opinion. Instead of complying, the lower court attempted to adjudicate and vest the title in one S. H. Fuller, who was not a party to the action nor had, in so far as it is shown, any right or interest therein. Such action was not authorized and was not color of title, even if the plaintiff had shown possession.
Moreover, such judgment decreeing title to be conveyed to one not a party to the action is unwarranted by the statute, Revisal, 586, which provides that the court may enter such judgment only as to “parties to the action unless the property is to be held in trust for another.”
This method of ordering a decree of court to operate as a conveyance of the legal title as if by deed is purely statutory, and, as said in Morris v. White, supra, there is no validity in cases provided by the statute, Revisal, 566, even when its terms are strictly complied with, which was not done here, for the decree does not provide that it “shall be regarded as a deed of conveyance,” nor was it certified and registered as required by the statute, nor was it made in favor of a party to the action.
The wife of Lee Fuller was not a party to the action nor was the title directed to be conveyed to her in trust for another. This statute was passed in consequence of an instance in Hertford County where the court having ordered a defendant to execute a deed, he refused to obey and lay in jail under an attachment for contempt until this statute was passed. It was enacted to provide for such cases and for cases in which the parties directed to pass the title are out of the jurisdiction of the court or are minors or non compos. The party to whom such title could be made under such decree of the court was specified to be “parties to the suit,” or one who is named as trustee for such person. The wife of Lee Fuller, therefore, was not one in whose favor such decree could direct the title to be conveyed.
Besides, the absolute invalidity, for the. reasons given, of the decree to put the title in S. H. Fuller, the judgment of this Court which held that a conveyance by Lee Fuller to H. T. Jenkins, 28 January, 1896, was a mortgage necessarily decreed that it was a mortgage on the date of its execution, for it was not based on anything occurring thereafter, and, therefore, when the judgment of the Federal court was *160docketed in Swain County and this tract of land was sold thereunder 7 May, 1900, Lee Fuller held tbe land subject to tbe mortgage of $30 by virtue of tbe agreement made at tbe time tbe deed was executed, as beld by tbis Court. Tbe interest of Lee Fuller was, therefore, not a mere right in equity, but an equity of redemption, which tbis Court beld entitled him to reconveyance upon payment of tbe $30 with interest from tbe date of tbe deed. Such equity of redemption was subject to sale and was conveyed by tbe deed to tbe United States for such property. Revisal, 629 (3); Davis v. Evans, 27 N. C., 525; Mayo v. Staton, 137 N. C., 670. Tbe only legal effect of tbe judgment entered at July Term, 1902, of tbe court below upon tbe certificate from tbis Court was an aeknowlegment by Fuller and Jenkins that tbe encumbrance bad been paid off. Tbe equity of redemption which passed by tbe execution sale against him thereupon became tbe unencumbered title which later passed to tbe defendant by tbe deed from tbe Commissioner of Internal Revenue under tbe authority of tbe United States when tbe defendant took possession, which be still bolds. By tbe decision of tbis Court Fuller bad tbe right to call upon Jenkins, at tbe very time tbe sale was made under execution, to reconvey tbis property upon payment of tbe $30 and interest.
Tbe whole subject is fully discussed in Mayo v. Staton, 137 N. C., 670, which bolds that while a mixed trust cannot be sold under execution, “an equity of redemption, whether created by mortgage deed to tbe creditor or to a third person, with or without power of sale, may be sold under execution.” Tbe Court, in Fuller v. Jenkins, 130 N. C., 555, beld that though tbe mortgage clause bad been omitted tbis was a mortgage ab initio, and tbis made tbe interest of Fuller subject to sale, for tbe court did not create tbe relation of mortgagor and mortgagee by its decree, but beld that it was a mortgage by virtue of tbe agreement of tbe parties at tbe time, of tbe execution of tbe conveyance of Fuller to Jenkins, 28 January, 1896.
Tbe defective decree at July Term, 1902, which attempted to convey tbe property to Lee Fuller’s wife, was evidently procured and arranged with tbe intent by that unauthorized and irregular proceeding to bead off tbe title which tbe United States Government bad obtained by tbe purchase of Lee Fuller’s interest at tbe execution sale in May, 1900, for Josephine Fuller was not a party to tbe action in which tbe decree was rendered and is not shown to have paid the-$30 and interest or any other consideration, if, indeed, she could have purchased tbe property from her husband against tbe superior title already acquired by tbe United States as purchaser at such sale.
For tbe above reasons tbe judgment ought to be reversed.
BeowN, J., concurs in dissenting opinion.