Kennedy v. Atlantic Trust & Banking Co.

Walkbb, J., after stating tbe case: It appears that, pending this suit, and at the request of tbe defendant bank, Henry Heyer, in pursuance of bis guarantee to do so, paid tbe chattel mortgage, which, of course, discharged tbe debt secured by tbe real estate mortgage given *229 by Kennedy and bis wife to tbe bank. There is no question of an innocent bolder in tbe case, as tbe bank was tbe original payee in tbe Kennedy notes, and it, its agent, or Heyer, participated in all tbe transactions mentioned, Heyer having actual knowledge and .the bank perhaps imputed knowledge' of tbe facts. The' assignments of error, as to tbe admission of evidence, are without merit. As between tbe apparent makers and tbe original taker of tbe Kennedy notes, it was competent for tbe plaintiff to prove which of tbe two signing tbe notes to the bank was tbe principal debtor, and which was tbe surety. Welfare v. Thompson, 83 N. C., 276; Lockhart v. Ballard, 113 N. C., 292; Foster v. Davis, 175 N. C., 541; Williams v. Lewis, 158 N. C., 571. Henry Heyer, for whom this suit is defended, and who paid tbe notes signed by Kennedy and bis wife, aided tbe transfer of tbe property to Sheppard, and they being parties to that transaction, tbe evidence objected to, which was tbe subject of tbe third assignment of error, was competent. Tbe testimony, under tbe fourth assignment of error, was competent .as shedding light on tbe value of tbe personal property upon which tbe bank held a chattel mortgage, and on tbe sale to tbe Hanover Realty Company, to which tbe bank and Heyer both assented. Mrs. Kennedy, and her real estate, were sureties of her husband, and tbe bank and Heyer having appropriated tbe principal debtor’s property, tbe surety, •and her land, were thereby exonerated, as they (the bank and Heyer) virtually assented to tbe disposition of tbe principal’s property securing tbe debt upon which tbe wife was surety, and received tbe proceeds of tbe sale, or tbe benefit thereof. Tbe evidence of tbe witness Ricaud, tbe subject of tbe fifth assignment of error, was competent as showing tbe bank bad knowledge of tbe sale and transfer of tbe restaurant, and acquiesced in such sale, and, further, as showing tbe bank bad released tbe property covered by tbe ■chattel mortgage. While we have, in a summary way, considered defendant’s exceptions to testimony, it was only perfunctory, on our part, as we are of tbe ■opinion that none of tbe exceptions were properly taken. It will be ■observed by referring to tbe record that each of those covered by the fifth assignment of error was entered to a mass of evidence, some of which was surely competent. The exception must be good as to all tbe ■evidence embraced by tbe objection. S. v. Ledford, 133 N. C., 714; Nance v. Tel. Co., 177 N. C., 313, where the cases, up to that time, are collected; Harris v. Harris, 178 N. C., 7. The other exceptions are so immaterial and inconsequential as to be utterly insufficient to induce a reversal, if tbe questions were incompetent. We will repeat again that *230 verdicts and judgments should not be lightly set aside upon grounds, or for reasons, which show the alleged error to be harmless, or not injurious, in its results. There should be something like a practical treatment of the motion to reverse, and it should not be granted except to subserve the real ends of substantial justice; it should be meritorious and not frivolous. The foundation of the application for a new trial 'is the allegation of injustice, and the motion is for relief. Unless, therefore, some wrong has been suffered, there is nothing to be relieved against. The injury must be positive and tangible, not theoretical merely. For instance, the simple fact of defeat is, in one sense, injurious, for it wounds the feelings. But this alone is no sufficient ground for a new trial. It does not necessarily involve loss of any kind, and without loss, or the probability of loss, there can be no new trial. The complaining party asks for redress, for the restoration of rights which have first been infringed, and then taken away. There must be, then, a probability of repairing the injury, otherwise the interference of the Court would be but nugatory. There must be a reasonable prospect of placing the party who asks for a new trial in a better position than the one which he occupies by the verdict. If he obtains a new trial, he must incur additional expense, and if there is no corresponding benefit, he is still the sufferer. Besides, courts are instituted to enforce right, and restrain and punish wrong. Their time is too valuable for them to interpose their remedial power idly, and to no purpose. They will only interfere, therefore, where there is a prospect of ultimate benefit. S. v. Smith, 164 N. C., 475, 480, 481, and cases approving it which will be found in the Anno. Edition of that report; Hilliard on New Trials (2 ed.), sections 1 to 7; Graham & Waterman on New Trials, 1235. Tested by this safe and sound rule of the law, there is no reversible error in the exceptions so far considered. The real pivotal question in this appeal is, whether Henry Heyer was entitled to be subrogated to the rights of the bank, provided the bank had any right to which the doctrine of subrogation applied. We do not think it had any such right, nor do we assent to the proposition that Henry Heyer had acquired such an equitable right by anything that he did, even if he were a party to this suit, and had properly pleaded or set up the same.- Granted that he secured the money for Carter to pay for the personal property he had bought at the sale, that was only a favor or accommodation to Carter, and in no possible aspect could raise an equity in Heyer’s behalf. This seems to be perfectly plain. But there are none of the elements of a subrogation, if Heyer had come in and been made a party, and sufficiently pleaded the same equity. He was a mere volunteer in the transaction, and the written guaranty which he gave to the bank does not change the result. It was still a voluntary *231 and gratuitous payment by bim. It was more than voluntary, it was officious, in a legal sense, and he cannot appeal to equity for relief. This doctrine is well settled. Joyner v. Reflector Co., 176 N. C., 274; Publishing Co. v. Barber, 165 N. C., 478; Liles v. Rogers, 113 N. C., 197. Legal subrogation arises, where one has an interest to protect, or is secondarily liable, and makes a payment. Jones v. Reflector Co., supra. But another conclusive answer is, that in the beginning there was a written agreement that the money arising from the sale of the restaurant property should be applied in payment of the debt secured by both the chattel and real estate mortgages, which was $1,500, and that is all that has been done. If Mrs. Kennedy, the surety of her husband, must pay over that amount to Heyer, through the bank itself, or the bank as trustee, they will have received nothing for the restaurant property in' the end. “Conventional subrogation, so named from the covenant or agreement of the civil law, is founded upon the agreement of the parties which really amounts to an equitable assignment.” Joyner v. Reflector Co., supra. Heyer was under no legal liability, nor moral obligation, to pay the debt, and the agreement referred to in the last quotation means an agreement made at the time of contracting liability, or an agreement entered into afterwards at the instance of the party liable. “A volunteer cannot acquire an equitable lien or the right of subrogation.” Publishing Co. v. Barber, 165 N. C., 478, p. 487. On page 484 of the ease last cited, the Court states that one can be subrogated only upon some special circumstance (meaning having some interest or right to protect), or by a payment on request from the debtor, raising an implied contract. . Mr. Heyer, in his testimony, upon which the defendant relies, states positively that Kennedy and his wife were not to pay the indebtedness to the bank, but that Carter was to pay it, and he in effect means to say that he gave the bank his guarantee because Carter had'assumed the Kennedy debt; and, certainly, there can be no implied contract between Kennedy and his wife and Heyer, for the latter to pay the debt, as there is no express contract, and Heyer at that time had no interest of his own to protect. The facts of all the transactions show that the bank or its attorney, if he be the bank’s attorney, had knowledge of these sales and aiding in consummating them, and Mrs. Kennedy being a surety, and the plaintiff having proved that the personal property which her husband, the principal debtor, put up as security for the debt, has been sold and brought enough to pay it, and the bank and its attorney or guarantor having assented to the sale of the principal debtor’s property, the sureties’ property must be exonerated to the extent of discharging it from any *232 further liability. Carriage Co. v. Dowd, 155 N. C., 308, as the proceeds of the sale were sufficient to pay the whole debt. This case is even stronger than the statement above made, for here wo have the guarantor to the bank, Heyer, aiding and actively participating in the sale of the property of the principal debtor, who was primarily liable for the payment of the debt, and also assisting in its conversion, or wrongful disposition, and he now asks a court of equity, and conscience, to help him in this questionable conduct, by fastening the resultant loss upon the surety, who is innocent of all wrong, and to decree to the wrong-doer the property of such surety. If there is a legal or equitable rule justifying such a claim, we have failed to discover that it has found its way into the books. No error.