#### J. M. SHERROD and N. J. MAYO, Administrator of J. W. SHERROD, v. B. F. DAWSON, Sheriff of Edgecombe County, and J. C. CRAWFORD, Sheriff of Martin County.

(Filed 15 March, 1911.)

1. Counties — Taxation—Conflicting Demands — Injunction—Parties— Misjoinder — Removal of Causes — Discretion of Court — Procedure.

This action involves a controversy between two counties as to which is entitled to assess taxes upon the same personal property, consisting of solvent credits. The sheriff of one county seized the property in the hands of an administrator as that of a deceased resident, and the sheriff of the other claims it as that of one of its citizens to whom the deceased is alleged to have duly assigned it before June 1. The administrator of deceased and the alleged assignee seek to enjoin the sheriffs of both counties from selling the property for taxes, offering to pay into court the taxes on the larger amount assessed: Held, (1) the main relief is that by injunction, and the injunction should be continued; (2) the pleadings relate to one transaction, and there is no misjoinder of parties; (3) the plaintiffs could *526elect to sue in either county; (4) the question of the removal of the action in effect involved the contest of the two counties over a fund and within the discretion of the trial judge; (5) the right of either county to the tax depended upon the place of residence of the true owner, a question of fact for the jury under conflicting evidence; (6) the plaintiffs should not be required to pay the tax and sue the respective counties to recover it back; (7) the remedy by injunction is the proper one. Re-visal, secs. 821, 2855.

2. Taxation — Enforcement—Executors and Administrators — Parties —Procedure—Priorities.

It is the duty of an executor or administrator to pay the taxes of deceased out of the trust funds in his hands, and the statute prescribes that “such liability may be enforced by an action against him in the name of the sheriff,” Revisal, sec. 28C2, giving certain priorities prescribed by Revisal, sec. 89.

Appeal from Peebles, J., beard at chambers, 6 January, 1911.

This is an action brought by plaintiffs in the Superior Court of Edgecombe County to restrain the defendants from selling the property of plaintiffs pending the determination of this action, in which is involved the legality of certain taxes levied by the commissioners of Edgecombe and Martin counties upon the same personal property, to wit, certain solvent credits.

The cause was heard by his Honor at chambers, who rendered judgment vacating the restraining order theretofore granted. From his judgment plaintiffs appealed.

Bunn & Spruill for plaintiffs.

H. A. Gilliam, for defendant Dawson.

Harry Slcinner for defendant Qrawford.

Brown, J.

The facts as presented by the record are that certain notes and mortgages, solvent credits, are in the hands of J. P. Bunn, an attorney of Rocky' Mount, N. C.

The Board of Commissioners of Martin County entered said personal property' on the tax lists of that county after the death of Dr. J. W. Sherrod, who died intestate in that county on 7 November, 1909, claiming that said solvent credits were his property and that they had never been listed for taxation. *527It is admitted tbat Dr. J. W. Sberrod was a resident of Martin County at tbe time of and for years before bis death. It is admitted tbat tbe defendant Crawford bas advertised certain cotton and lands belonging to said estate, and in tbe bands of N. J". Mayo, administrator, for sale to pay said assessment. Tbe tax levied by tbe commissioners of Martin-amounts to $1,690.85.

Tbe plaintiff Jbbn M. Sberrod is tbe son of Dr. J. ~W. Sber-rodj and bas been for some years a citizen and resident of tbe county of Edgecombe. It is alleged, and plaintiffs offered affidavits in support thereof, tbat this identical property in tbe bands of J. P. Bunn was duly transferred and assigned prior to 1 June, 1905, by said J. W. Sberrod to bis son, John M. Sberrod, -who bas been a citizen and resident of Edgecombe County ever since.

On tbe first Monday of April, 1910, after due notice to John M. Sberrod, tbe Board of Commissioners of Edgecombe County assessed a tax of $1,831.18 against tb’is property, claiming tbat tbe said solvent credits belong to John M. Sber-rod, a resident of tbat county, and have belonged to him since prior to 1 June, 1905.

Tbe defendant Dawson, Sheriff of Edgecombe County, is endeavoring to collect this tax out of tbe property of tbe plaintiff John M. Sberrod.

Tbe plaintiffs ask to be permitted to pay into court tbe larger sum assessed, $1,831.18, to abide tbe judgment of tbe court as to which county tbe taxes on said property rightfully belong, and tbat tbe defendants be enjoined from selling tbe property of tbe plaintiff John M. Sberrod, or of tbe estate of J. ~W. Sberrod.

Tbe contention tbat there bas been a misjoinder cannot be sustained. All tbe averments in tbe pleadings relate to one transaction and one cause of action, to wit, a permanent injunction to prevent tbe sale of plaintiff’s property. Fisher v. Trust Co., 138 N. C., 224; Ricks v. Wilson, 151 N. C., 48.

All parties in interest are before tbe court, and its judgment will be binding upon them. If two separate actions were *528brought, one in Martin and one in Edgecombe, conflicting verdicts and judgments may be rendered and the result be that the authorities of two counties might levy and collect taxes upon identically the same personal property.

The motion to change the venue and remove the cause to Martin County was properly denied.

The cause could have been properly instituted in either county, and the plaintiffs had the right to sue in Edgecombe rather than in Martin, where defendant Crawford resides.

The Superior Court, upon application, may remove the cause to some adjoining county for trial of the issues, as this is px*actically a contest between two counties over a certain fund; but that is a matter in the sound discretion of that court. It would seem proper that the cause should be determined in a disinterested county.

We are of opinion that plaintiffs are entitled to injunctive relief, upon paying into court the larger sum claimed by the defendant Dawson on behalf of the county of Edgecombe.

It is contended that the plaintiffs should pay the taxes assessed in Martin and Edgecombe counties and sue the counties to recover it back. This position is untenable. The imposition of the tax by one county or the other is clearly illegal. The right to levy the tax depends upon who was the true owner of the property at the time when the taxes accrued. Property of this character is subject to taxation only where the true owner resides. The legality of either tax can only be determined when the residence of the real owner shall be ascertained and fixed by the jury.

An injunction will lie to restrain the collection of taxes and to restrain the sale of property under distraint, for three reasons, to wit: (1) If the taxes or any part thereof be assessed for an illegal or unauthorized purpose. (2) If the tax itself be illegal or invalid. (3) If the assessment of the tax be illegal or invalid. Revisal, secs. 821 and 2855. Purnell v. Page, 133 N. C., 125.

In the case of Lumber Co. v. Smith, 146 N. C., 199, which was an action brought to collect taxes on solvent credits, *529 Justice Connor, writing the opinion of the Court for an undivided bench, held that injunction is the proper remedy as against delinquent taxes illegally sought to be collected. Upon the same point see, also, Armstrong v. Stedman, 130 N. C., 217; Ins. Co. v. Stedman, 130 N. C., 221.

In this case the injunctive relief sought is not merely ancillary to the principal relief demanded in the action, but is itself a main relief, for, assuredly, as to one or the other county, the tax is illegal and invalid.

In the case of Hyatt v. DeHart, 140 N. C., 270, this Court held that it is the general rule that the Court will not dissolve an injunction where the main relief demanded in the action is injunctive.

In Purnell v. Page, 133 N. C., 129, the present Chief Justice spoke for the Court in these words: “As to the other point, whether the plaintiff can maintain an injunction against the sale of his property under an illegal tax, or must pay the tax under protest and sue to recover it back, it is equally well settled that he can pursue either remedy. Range Co. v. Carver, 118 N. C., 331; Armstrong v. Stedman, 130 N. C., 217; Brinkley v. Smith, 130 N. C., 224, hold that under the language of the statute injunctive relief may be invoked by a taxpayer when the tax is invalid or illegal.”

In respect to the right of the defendant Crawford, as Sheriff of Martin County, to levy on the lands and cotton belonging to the estate of Dr. Sherrod for the collection of this tax levied and placed upon the lists after his death, or even before his death, it is to be observed that the method of collection of taxes against the estate of a decedent is regulated by section 2862, Revisal, which makes it the duty of the executor or administrator to pay the taxes out of the trugt funds, and prescribes that “such liability may be enforced by an action against him in the name of the sheriff.”

All taxes owing by a decedent are given a certain priority and are placed in class 3 of schedule of debts. Revisal, sec. 89.

These statutes plainly indicate that the ordinary methods of collecting taxes by a sheriff do not. apply to the collection of taxes from a decedent’s estate.

*530These plaintiffs, however, do not seek to restrain or delay the collection of the tax. They admit that the tax is due to one county or the other. They only ask to restrain the sale of their property in case they pay the largest amount claimed into court to abide the result of the action. Tt is but reasonable that their prayer should be granted.

It is therefore decreed that upon payment of the larger sum named herein into the office of the Clerk of the Superior Court of Edgecombe County an injunction issue against the defendants Dawson and Crawford, as prayed.

The costs of this appeal will be taxed against the defendants.

Reversed.