Tbe defendants do not challenge tbe validity of tbe deed of trust or tbe present right of enforcement, nor do they dispute tbe effectiveness of tbe judgment against Mrs. Parker on tbe note. They do contend that tbe order of foreclosure, made while Rose, trustee in tbe deed of trust, was not a party to tbe proceeding, was void; and that tbe order attempting to cure its invalidity by making Rose a party by relation nunc pro tunc before tbe order was made is beyond tbe present power of tbe court, and at best could only make tbe trustee a party for some subsequent action in tbe premises as might be properly taken; that tbe order of confirmation was a final order without which no title is vested in tbe bidder, and under tbe law then current could not be made out of term and out of tbe county where tbe action was pending without consent of parties, which should affirmatively appear of record.
For these reasons they conclude that they are now entitled to redeem tbe property and to that end have an accounting for rents and profits against tbe mortgagee in possession.
These challenges to tbe validity of tbe foreclosure proceeding are so related that a fatal defect in either tbe order of foreclosure or tbe order of confirmation of the same, if it exists, is sufficient to entitle tbe defendants to tbe relief they seek. We need only to pass upon tbe first.
Tbe Court has frequently held that tbe mortgagee or trustee in a deed of trust, is a “necessary,” and “indispensable” party to an action for foreclosure; Smith v. Bank, 223 N. C., 249, 25 S. E. (2d), 859; Alexander v. Bank, 201 N. C., 449, 160 S. E., 460; Hughes v. Hodges, 94 N. C., 56, 60, 61; Williams v. Teachey, 85 N. C., 406.
Careful consideration of tbe bases on which these declarations are made justifies tbe position that tbe presence of tbe trustee as a party,— either plaintiff or defendant, — is jurisdictional with tbe Court, and without it no valid judgment of foreclosure can be bad. Tbe nature, purpose and importance of tbe trust confided to him, tbe fact that tbe foreclosure is a proceeding in rem, and that tbe legal title to tbe res is in tbe trustee and cannot be divested in a proceeding to which be is not a party, — these are amongst tbe considerations which lead to tbe conclusion that tbe court dealing with such a proceeding must first acquire jurisdiction of tbe trustee as such before entering a valid order of foreclosure. We do not consider it material whether be stands north or south of tbe versus.
There is no statutory or other authority under which tbe court could be justified in its attempt to cure this invalidity by an order making tbe trustee, by relation, a party nunc pro tunc to tbe proceeding, so as to *57place bim in that position prior to tbe rendition of tbe challenged judgment. At best any effect tbe order might have would be to make bim presently a party for such action as might be permissible subsequent to tbe order. As a curative attempt it was non coram judice.
Confirmation of tbe resale of tbe office property here in controversy purports to have been made by Hon. Clawson L. Williams as Eesident Judge of tbe Fourth Judicial District. Tbe Court will take judicial knowledge that no session of Johnston Superior Court was being held at that time, although we do not see that this fact is disputed. It is contended that under tbe law as it then existed, confirmation, unless by consent of parties,' could only be made at a regular term of tbe Superior Court, could not be made out of term or out of tbe county where tbe suit was pending except by consent of parties, — and neither notice nor consent appears in tbe instant case. Defendants cite May v. Insurance Co., 172 N. C., 795, 90 S. E., 890; Bynum v. Powe, 97 N. C., 374, 378, 2 S. E., 170; Laundry v. Underwood, 220 N. C., 152, 16 S. E. (2d), 703; Brown v. Mitchell, 207 N. C., 132, 134, 176 S. E., 258; Panic v. Peregoy, 147 N. C., 293, 296, 61 S. E., 68; Godwin v. Monds, 101 N. C., 354, 7 S. E., 793.
In view of tbe conclusion which we have reached we do not deem it necessary to decide tbe question whether Gr. S., 1-218, is broad enough to give jurisdiction to tbe resident judge during vacation and at chambers to confirm a foreclosure sale without consent of parties. We may say that barring the provision that a commissioner’s sale may be confirmed after 10 days where there is no objection and no raised bid, there is nothing in the statute, reasonably construed, that may be given that effect, — and jurisdiction by an inference not altogether necessary, — is not favored. Under the old practice it was considered necessary to allow 20 days to elapse before moving for confirmation of the commissioner’s sale under order of the Superior Court, and this sometimes prevented confirmation at the ensuing term. In view of the fact, however, that other titles might be disturbed by any present ruling, we refrain from passing upon the question until it becomes necessary.
We are clearly of the opinion, however, that the original order of foreclosure is void for the reasons stated and its invalidity was not cured by the present attempt to make the trustee a party nunc fro tunc. The defendants are entitled to the relief they have asked.
The judgment and order of the lower court overruling the defendants’ demurrer is reversed. The cause is remanded to the Superior Court of Johnston County for judgment in accordance with this opinion.
Eeversed and remanded.