concurring in result, but dissenting from the legal conclusion announced: Civil action instituted by plaintiff, a resident of Onslow County, against the defendants, nonresident corporations owning property in this State, to cancel certain deeds and mortgages. Service was obtained by publication, same being completed 26 December, 1924, and judgment by default, for the want of an answer, was entered as of 19 January, 1923. On 31 March, 1925, the defendants filed a motion to set aside the judgment, under C. S., 600, for surprise and excusable neglect, it being alleged that the defendants had no knowledge or information of the institution or pendency of said action prior to 27 January, 1925. The motion was denied under C. S., 600, but allowed under C. S., 492. Defendants appeal.
The only question sought to be presented by the appeal is whether a judgment rendered in an action where service is obtained by publication, upon sufficient cause shown, may be set aside under C. S., 600, as well as under C. S., 492.
An examination of the two statutes will disclose the importance of this question. It is provided in C. S., 492, but not in C. S., 600, that “title to property sold under such judgment to a purchaser in good faith is not thereby affected.” Page v. McDonald, 159 N. C., 38; Lawrence v. Hardy, 151 N. C., 123. It is conceivable, therefore, that, in certain instances, the difference in the effect of proceeding under the one or the other of these two statutes might become capitally important. But there is nothing on the instant record to show the materiality of the question to the defendants in the present proceeding. Hence, I think the judgment should be affirmed, as it is in favor of the appellants, but with a disapproval of the holding that the motion could not be made *175under 0. S., 600 as well as C. S., 492, and remanded so that defendants may renew their motion, under the former statute, upon proper showing, if so advised.
In McLean v. McLean, 84 N. C., p. 370, a case arising under what is now O. S., 600, the following statement was made:
“When a summons is personally served upon a party, or he is a party plaintiff to an action by his own act or with his knowledge or consent, he is affected with notice of all that occurs in the progress of the cause, and must make his motion within a yew after the rendition of' the judgment; but when he has not been personally served with notice, or has been made a party to the action without his knowledge, then he may make his motion at any time within one year after actual notice of the judgment
This was approved in Sluder v. Graham, 118 N. C., 835, and Jernigan v. Jernigan, 178 N. C., 84. Indeed, the very language of the statute is that the judge shall, upon such terms as may be just, at any time within one year “after notice thereof,” relieve a party from a judgment, order, verdict or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.
Under our decisions, where the defendant is personally served with summons, he is fixed with notice of all that transpires during the orderly course of the litigation, including, of course, the rendition of the judgment, just as the plaintiff who brought the suit; and, in such cases, the expression, “within one year after notice thereof,” used in the statute, perforce means within one year after the rendition of the judgment, order, verdict or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect. Lee v. McCracken, 170 N. C., 575; Roberts v. Allman, 106 N. C., 391; Grant v. Edwards, 88 N. C., 246. But where the defendant has not been personally served with summons, or where one has been made a party to the proceeding without his knowledge or consent, such expression, it would seem, must necessarily mean within one year after actual notice of the judgment, order, verdict or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect. Such has been the interpretation of this section by judges on the circuit and by members of the profession generally. Campbell v. Campbell, 179 N. C., 413; Turner v. Machine Co., 133 N. C., 381.