dissenting: I agreed to tbe former opinion because I understood from tbe oral argument it was conceded tbat process bad been served in tbe drainage proceeding on Pate, tbe mortgagor in possession; but I find on tbe rebearing not only tbat it was not intended to make such an admission, but also that tbis is not tbe fact, and while disposed to sustain proceedings for tbe drainage of swamp lands, which tend to improve tbe public health and add to tbe wealth of tbe State, I cannot give my assent to tbe doctrine tbat a court of equity is without power to restrain tbe sale of land under a judicial proceeding when neither tbe owner of tbe land nor any'one under whom she claims has bad a day in court, or has been served with process personally or by publication.
I do not believe it has ever been so held before, and tbe citation of one authority in support of tbe position (Parker v. Bledsoe, 87 N. C., 221), in which tbe summons was served, an answer filed, and judgment rendered for tbe amount admitted to be due, leads to tbe conclusion that tbe ruling is without precedent.
What are tbe facts?
Tbe land of the plaintiff, Mrs. Banks, was advertised for sale by tbe sheriff of Craven County on 1 February, 1915, to satisfy an assessment alleged to have been levied in a certain drainage proceeding, and tbis action was then commenced to restrain tbe sale upon tbe ground tbat no process was served on tbe plaintiff in tbe drainage proceeding, and tbat tbe assessment was therefore void.
A temporary restraining order was issued, and after several continuances it came on for bearing, tbe sheriff and the drainage district being parties and represented, and tbe plaintiff filed affidavits in support of their allegations; but bis Honor, not content with tbis, required tbe original papers in tbe drainage proceeding to be brought before him “in order tbat the court may determine tbe question of service as bearing upon tbe validity of tbe assessment above mentioned, lack of service having been pleaded as a ground for injunctive relief against said sale.” (See order, record, pp. 11 and 12.)
His Honor, then, having before him tbe affidavits and tbe original papers in tbe drainage proceeding, found tbe following facts: “And at tbis bearing, tbe plaintiffs having denied tbat any personal service has ever been made upon them or upon any of those under whom they claim, and having filed affidavits accordingly, and having denied tbat any proper and legal service of any kind has ever been made upon them or upon any of those under whom they claim, and tbe defendants having offered before tbe court nothing tending to prove tbat personal service has ever been made upon tbe plaintiffs or either of them, or any one under whom they claim, and having offered nothing to show *512that service of any nature has ever been made upon the plaintiffs or either of them, or any of those under whom they claim, and the defendants claiming that the status of this cause and the drainage laws of the State of North Carolina pleaded eliminate the necessity of service in order that said land may be assessed;'the court finds as a fact for the purpose of this hearing that no personal service has ever been made upon either of the plaintiffs or any of those under whom they claim, and finds that no service of publication has been properly made so as to authorize the said assessment against the said land, holding hereby that the assessment against the said land is invalid for the want of service upon the landowners and for lack of opportunity to be heard in court.”
These findings have not been disturbed, nor was the exception filed that they were not supported by evidence, and in them is the finding that neither the plaintiff nor any one under whom she claims was served with process, personally or by publication, in the drainage proceeding; and as the mortgagee claims under the mortgagor, this is a finding of fact that neither the mortgagee nor the mortgagor was served.
This is the record, and, as it seems to me, we ought not to give a narrow construction to the findings and one different from their legal effect, when we know from the agreed return to the certiorari, which counsel on both sides assumed would issue as a matter of course, that if the term “nor any one under whom she claims” does not include the mortgagor it is because the final judgment in the drainage proceeding was entered in 1912 and the mortgage was not executed until 1913, so that it was impossible for the mortgagor to have been served, because the mortgage was not in existence until after the proceeding was concluded.
We should either refuse to consider this agreed statement of counsel and give to the language “nor any one under whom she claims” its legal effect, and say it includes the mortgagor, or we should consider it and say that Pate was not served because he executed the mortgage after the drainage proceeding was at an end.
If there was no service of process, j)ersonally or by publication, on the plaintiff or on any one under whom she claims, in the drainage proceeding, is the plaintiff entitled to restrain the sale of her land? I think so, and that the ease of Bowman v. Ward, 152 N. C., 602, in which the opinion was written by Associate Justice Brown for a unanimous Court, is an authority directly in point.
In the Bowman case the land of the plaintiff was advertised for sale under execution, and an independent action was brought to restrain the sale upon the ground that there had been no service of process *513on tbe plaintiff in tbe action in wbicb tbe judgment was rendered, and it was beld tbat tbe plaintiff was entitled to injunctive relief.
Tbe Court said: “Tbe plaintiff sues to restrain the selling of her land under execution upon a judgment rendered by a justice of tbe peace and docketed in tbe Superior Court of Henderson County. . . . No service of tbe summons or of tbe attachment has ever been made, either personally or by publication, and no publication made. . . . His Honor denied tbe injunction upon tbe ground tbat tbe proceeding was void on its face. ¥e agree with him tbat tbe judgment is void, because it appears affirmatively upon tbe face of tbe record tbat no service, personally or by publication, has ever been made, either of tbe summons or attachment. ... We think, however, bis Honor should have restrained tbe sale, as tbe plaintiff is entitled to have tbe question finally determined as to tbe liability of her land for tbe judgment, and not be made to take tbe chance of losing it by forced sale under execution. If her land is liable for tbe judgment she should have tbe opportunity to pay it after a judicial determination.”
There is no intimation in tbe opinion tbat tbe plaintiff ought to have proceeded by motion in tbe original action, as is now suggested in tbe opinion of tbe Court; and why should she do sol If she has not been made a party to tbat proceeding by tbe service of process, why should she be compelled to make herself a party by moving therein, instead of requiring those interested in tbe proceeding to issue process against her, if they wish to bind her land?
I have felt constrained to express my views because on this record "the land of tbe plaintiff, wbicb she has sold for $4,000 on a credit, since tbe assessment was made and without knowledge of it, has been assessed $2,293.60, when she has bad no day in court and no opportunity to be beard; and this is not only a confiscation of her property, but it is subversive of tbe constitutional guarantee tbat no one shall be deprived of bis property “but by tbe law of tbe land.”