concurring: Wben this case was first before us, I, with the other members of the Court, was under the impression that service of the summons in the drainage proceedings was made on the mortgagor Pate, and that he owned the land subject-to the mortgage to Mrs. Banks at the time the drainage proceeding was commenced. Upon further investigation, it appears that when that proceeding was commenced, Mrs. Banks had not sold the land, and that the relation of mortgagor and mortgagee did not then exist between her and Pate. It appears now by the judge’s findings that no service of the summons was ever made on either Mrs. Banks or Pate. It sufficiently appears, however, that the lands then belonging to plaintiff, formerly Florence Spivy, were set out and embraced in said drainage proceedings and were duly assessed in her name as one of the landowners within said district.
The drainage proceeding is.placed in the county of Craven and this action is pending in the county of Lenoir. I am of opinion that plaintiffs are entitled to relief, but that they should seek it by motion in'the cause, to he made upon notice in the drainage proceeding pending in Craven County.
I admit that Bowman v. Ward, 152 N. C., 602, is an apparent authority for the position that plaintiffs can seek such relief in an independent action, but in that case it appeared affirmatively upon the face of the record that no service was made either personally or by publication. In this case it does not appear affirmatively upon the face of the drainage proceedings that plaintiff was not made a party by service of summons or by publication. Those proceedings are not before us. It only so appears by the findings of the judge. I think this case, therefore, comes within what is held in Foard v. Alexander, 64 N. C., 69.
This is especially true in a case like this, which is not an action in personam, but one in rem. The land is sued and not the owner. No personal judgment is rendered against the owner, but the judgment condemns the land to pay the assessment. In the drainage proceedings the land is described and identified doubtless by the name of the owner. All the other owners have a personal interest in maintaining the integrity of the assessment. If the plaintiff is required to make her motion in the drainage proceedings, she is put to no disadvantage, and all the other landowners will be represented.
As pointed out by the Court, she is entitled to an injunction to be issued by a Superior Court judge in that proceeding, as ancillary thereto, to stop the sale of her lands until the matter can be heard.
In this particular case I think this method of proceeding is more ■ conducive to a proper administration of justice than an independent action.