concurring specially. After an exhaustive search for, and study of authorities found on the subject, including citations and cases appearing in the excellent briefs of counsel, the writer specially but reluctantly concurs in the majority opinion in this case. I concur reluctantly in this case because I so strongly feel that what has been done here, although under the sanctity and approval of the law, is nevertheless basically and fundamentally wrong. It is wrong in my opinion because I think under the facts, as disclosed by the record in the case the plaintiff was deprived of his property without having had his day in court.
*273It is true that U. S. C. A. § 26-3673 provides for the making of a bond to prevent or stay the selling of property until the tax liability has been definitely determined in cases such as we have under consideration here. It is also true, and certainly not beyond the realm of possibility that the plaintiff in this case, or persons similarly situated could not make a bond as provided under U. S. C. A. § 26-3673, supra. Also, there was still another possible alternative that the plaintiff might have pursued in this case and perchance have saved his property. As was pointed out in the case of Rosenthal v. Allen, 75 Fed. Supp. 879, the plaintiff could have petitioned the U. S. District Court to enjoin the sale of the property until his tax liability had been definitely determined, but there again arises the element of chance as trial courts, both State and Federal, are vested with wide discretionary powers and whether or not injunctive relief would be granted in any given case would be left entirely to the discretion of the trial judge. Although we must assume that the plaintiff in this case did not avail himself of either of the above-mentioned alternatives, since the record does not make any mention thereof, nevertheless had he done so there would have been no absolute, assurance that he could have made a qualified bond, or that the trial judge would have considered his damage so irreparable as to warrant the granting of an injunction.
I particularly concur in that part of the majority opinion in this case wherein it is suggested that appropriate legislation by our National Congress be enacted to afford inore protection to a party erroneously assumed by the office of the Secretary of the Treasury to be a transferee within the meaning of U. S. C. A. § 26-311. By way of further comment on this subject it occurs to the writer that a very salutary rule relative to the issuance of warrants for distraint, certainly as against transferees, would be to require, as a condition precedent to the issuance thereof, that the insolvency of the primary original taxpayer be shown and that the tax liability of the original primary taxpayer occurred before the’transfer of the property from the transferor—the'primary original taxpayer to the transferee.