(dissenting): I am unable to agree that lack of knowledge of the pendency of a mortgage foreclosure action prior to judgment, coupled with a subsequent tender of the amount due under the terms of a voidable judgment as rendered, constitutes a “valid defense” to the action on which the judgment was rendered, within the meaning of that term as used in G. S. 1949, 60-3013, in any proceeding instituted to vacate such a judgment in conformity with the provisions of G. S. 1949, 60-3007. It has long been my view the valid defense comprehended by the terms of the last mentioned section of the statute must be an existing meritorious defense, going to the merits, substance, or essentials of the cause of action alleged in the petition and that a tender made after the action has been commenced, which has the legal effect of confessing and thereby avoiding the consequences of the cause of action sued on, cannot be regarded as coming within the scope of its terms. The *375legislature, which easily could have provided otherwise, saw fit to make the provisions of 60-3013, supra, applicable to all defendants, including adults, minors, and incompetents. For that reason it cannot be said the requirements of such statute are to be given one construction in a proceeding where the rights of adults are involved and another in a proceeding involving minors or incompetents. Therefore I am constrained to conclude the amended petition in the instant case, even though it be construed as containing allegations to the effect the involved incompetent possessed means with which to pay off the mortgage and would have tendered the amount due under its terms into court prior to the rendition of the foreclosure decree, except for his incompetency, or that a guardian ad litem would have taken that action in his behalf if one had been appointed for him, fails to state a valid defense to the action on which the foreclosure judgment was rendered as required by section 60-3013 and that the trial corut properly sustained the demurrers to the amended petition.
Smith and Wertz, JJ, join in the foregoing dissent.