dissenting: The plaintiff and defendants both claim title to the land in controversy under State Grant No. 2861, entry No. 6748, issued to W. II. Herbert, 18 December, 1865. The plaintiff claims under á decree of foreclosure of a mortgage securing $8,273.19, executed by W. II. Herbert, 8 December, 1866, and duly recorded in Cherokee. The defendants claim under a chain of title beginning with the sale under an execution in favor of George W. Swepson on a judg*613ment obtained by him at March Term, 1861, in Alamance, and sale thereunder 12 May, 1868, at which the purchaser paid for the entire tract 25 cents (as recited in the sheriff’s deed, set out in full in the record).
The alleged invalidity of plaintiff’s chain of title rests upon an alleged technical defect in the registration of the Herbert mortgage, properly acknowledged before a commissioner of deeds for this State in New York City, 24 December, 1866, which was duly certified, and was admitted to registration in Cherokee, 23 October, 1867.
The probate of the Herbert mortgage was before the commissioner of deeds for North Carolina in the city of New York on 24 December, 1866, who certified the same under his official seal, and the mortgage was admitted for registration without further order in Cherokee on 23 October, 1867.
This registration was valid under the statute in force at that time, as held in Holmes v. Marshall, 72 N. C., 37; Young v. Jackson, 92 N. C., 144; Darden v. Steamboat Co., 107 N. C., 437; Johnson v. Lumber Co., 147 N. C., 249; U. S. v. Hiawassee Lumber Co., in the U. S. Supreme Court, 238 H. S., 553, cited as authority since in Sluder v. Lumber Co., 181 N. C., 69.
In Sluder v. Lumber Co., siopra, Allen, J., held valid a probate before a commissioner of affidavits for North Carolina in Maryland in 1856, and this case, together with the Eversole Lumber Company case, supra, and the JSiaiuassee Lumber Company case, supra, seem' to be the only cases based upon similar probates by a commissioner of affidavits of this State in other states, under the Revised Code of 1855, under which the probate in the present case was taken. The case last cited held valid a similar probate made in 1868, and the Eversole Lumber Company case held valid a. similar probate made in 1859.
In the Slucler case, supra, Mr. Jiostice Allen said: “There is no order of the clerk of the Superior Court of Jackson County ordering this deed to registration. We do not think this invalidates the registration. It has been, in effect, held that a fiat for registration is not absolutely essential. The statutory provision for such an order is' directory and not mandatory. If the deed be in fact registered under proper probate, the lack of a fiat does not invalidate the registration,” citing the above cases. This is the latest case and should be controlling.
The defendants cite a number of cases which they claim overrule the above, but examination shows that all the cases cited by them are as to probates under a different statute from that in'force when the probate in this case was made. Cozad v. McAden, 148 N. C., 10, was as to a probate before a commissioner of deeds of this State in another state in 1893, and that probate was governed by the terms of the Code of 1883. *614Evans v. Etheridge, 99 N. C., 43, was decided in 1888, and passed upon a similar probate which was made 22 May, 1886, and was therefore also governed by the Code of 1883. The apparent conflict in the opinions of this Court as to the validity of probates made by commissioners of this State in other states disappears because of the change in the statute. The Revised Code of 1855, under which the probate was made in this case, was materially changed by Battle’s Revisal, which itself was later modified by the Code of 1883.
The registration, as already stated, was valid’ under the statute in force at the Hie this registration was entered, as held in the cases above cited; but, if it had been defective, the defect was cured by the act of 1913, now 0. S., 3362, as follows: “Any deed or other instrument permitted by law to be registered, and which had, prior to 13 March, 1913, been proven or acknowledged before a commissioner of deeds, is valid; and its registration is authorized and valid. Nothing in this section affects litigation pending 3 March, 1913.” The registration in this case was made 23 October, 1867, prior to the sale under the subsequent execution on 12 May, 1868, and, besides, no litigation as to this matter was pending 3 March, 1913.