Green v. . Ruffin

Allen, J. The witness Hill testified that the second note and mortgage were executed as a renewal of the first note and mortgage, which had been deposited with the chemical company as collateral, and under an agreement that the first note and mortgage, under which the defendant Strickland is asking that the land be sold, would be delivered up and canceled, and that the proceeds derived from discounting the second note and mortgage were actually paid to the chemical company in reduction of the liability of the defendant Strickland thereon as indorser. He also testified: “Mr. Strickland knew about these transactions, and kept up with payments that were made upon the chemical company’s note.” It therefore appears from this evidence that Strickland knew of the agreement to cancel the first note and mortgage, and that he received the benefit of the contract by the application of the proceeds of the second note and mortgage to the note of the chemical company, and he will not now be permitted to receive the benefits and repudiate the obligations of the transaction. See Wilkins-Ricks Co. v. Welch, at this term. It is true that the plaintiff weakened the force of this evidence by *349 introducing a part of tbe answer of tbe defendant in wbicb be alleged tbat tbe collateral securities held by tbe chemical company were transferred to him “for value" and without notice,” but this merely presented tbe case of contradictory evidence, and did not justify entering a judgment of nonsuit. This precise question was presented in Trust Co. v. Bank, 166 N. C., 116, in wbicb tbe plaintiff introduced evidence tbat a check was duly mailed and relied upon tbe presumption tbat it was received on a certain date, and after doing so introduced a part of tbe answer of tbe defendant, wbicb tended to rebut this presumption. A judgment of nonsuit was entered, tbe court being of opinion tbat tbe presumption was rebutted by tbe introduction of tbe answer by tbe defendant, but this Court set aside tbe judgment of nonsuit, tbe Court saying: “Tbe fact tbat plaintiff introduced tbe rebutting evidence does not alter tbe case. It is not concluded thereby, but may show tbat tbe fact is otherwise, as a party is not always bound by tbe statement of bis own witness. Tbe prima facie presumption as to tbe time when tbe check was received was not rebutted by "the introduction of tbe answer, and tbe question should have gone to tbe jury.” Again, tbe defendant Strickland, iñ order to assert bis rights under tbe first note and mortgage, must invoke.tbe equitable doctrine of subro-gation, wbicb “will not be permitted where it will work injustice to tbe rights of those having superior equities or where it will operate to defeat a legaTright.” 26 R. C. L., 1321. His right to subrogation, if any, is tbe right to be subrogated to tbe rights of tbe chemical company iñ tbe collateral security, and as it appears from this evidence tbe plaintiff Green, who was the debtor in the collateral security, furnished tbe money, and it was actually paid to tbe chemical company, tbat company could not bold tbe securities as against tbe plaintiff Green, and if so, Strickland could not do so by subrogation. In our opinion tbe case is one wbicb ought to be submitted to a jury. Reversed.