2 S.E.2d 23 | N.C. | 1939
The Wachovia Bank and Trust Company brought an action in the county court of Forsyth County and recovered judgment on a note which had been executed by N.E. Mohn, C. T. Hellinger and C. L. Abernethy and made payable to the Eastern Bank and Trust Company, and by it hypothecated to the Wachovia Bank and Trust Company. The Eastern Bank and Trust Company became insolvent and was taken over by Gurney P. Hood, Commissioner of Banks, under the State Banking Laws. Thereafter, out of the funds of the bank in his hands, Hood, as Commissioner, paid over to the Wachovia Bank and Trust Company a part of the amount represented by the judgment, leaving a balance of $1,328.96, and took an assignment reading as follows: "This judgment, principal, interest and costs is hereby transferred, set over and assigned to Gurney P. Hood, Commissioner of Banks, ex rel. Eastern Bank and Trust Co., New Bern, North Carolina. (R., p. 8.) This 11th day of December, 1934. (Signed) WACHOVIA BANK TRUST COMPANY, Plaintiff, By RATCLIFF, HUDSON FERRELL, Attorneys." Thereafter, Hood, Commissioner, attempted to transfer the judgment to this plaintiff by assignment reading as follows: "For value received without recourse and by court order this judgment with unpaid balance of $1,328.96 is hereby assigned to B. A. Hoft, Trustee. . . . (R., p. 9.) Gurney P. Hood, Commissioner, etc."
Since remote days of the common law, it has been held that payment by one or more of those jointly and severally liable on a judgment is an extinguishment of the judgment (Fowle v. McLean,
If we are permitted to theorize, we might find sound reasons in support of the rule. Whatever rights might be supposed to exist between the judgment debtors because of the payment made by one or more of them upon a judgment (and the common law recognized no such right where they were jointly and severally liable), any right so arising is so entirely different in nature from that created by the judgment as to *399 repel an application of any principle of subrogation. In its controlling aspect the judgment is faced toward the enforcement of the creditor's right. This right, which has become merged in the judgment, is to have his debt paid by any or all of those jointly and severally liable, without regard to the equities between them. Such right, ready to hand in the form of an enforceable remedy, ought not in equity to be acquired by any one or more of the judgment debtors for enforcement against the others, and the extinguishment of such a judgment by payment of any one of them is logical and fair.
It may readily be seen that the judgment itself is not a suitable instrument for the adjustment of equities between the judgment debtors. The statute — C. S., 618 — provides a method by which the judgment may be kept alive, and at the same time protects the equities between the judgment debtors against the injustice that might result from a simple subrogation. It creates a new right, provides an exclusive remedy, and substantial compliance with its terms is necessary to make it available.
The assignment of the judgment to Gurney P. Hood, Commissioner of Banks,"ex rel. Eastern Bank and Trust Company," does not purport to be, and in fact is not, a compliance with this statute. It is an absolute transfer to him of the judgment in his capacity as Commissioner of Banks and by reason of his relationship to the Eastern Bank and Trust Company, judgment debtor, without reference to any trust relationship contemplated by the statute.
That an assignment of the judgment to the Commissioner of Banks is in effect an assignment to the judgment debtor follows, we think, from the relation of the Commissioner to the bank in his hands for liquidation. The Commissioner takes custody of the assets of the bank by force and virtue of the statute itself — C. S., 218 (c) (7). He may sue and be sued, without permission of the court, and his power and duty to collect and distribute the assets of an insolvent bank are derived from the statute and not from the order of the court. C. S., 218 (c), (6), (7), (14), (17). "Upon taking possession of any bank . . . all the property, assets, choses in actions, rights and privileges of the said bank . . . shall vest in the said Commissioner and/or duly appointed liquidating agent absolutely, for the purpose of liquidating." C. S., 218 (c), (7).
While in many respects his powers and duties are the same as those exercised by a receiver appointed by the court, and while in some instances his acts, like those of a receiver, are authorized, supervised, and regulated by the court, the analogy is not complete. The statutory powers and functions of the Commissioner are controlling, and he exercises the functions of a chancery receiver under the inherent power of the court only in matters which are not inconsistent with his statutory *400
duties, and the authority of the court may not be substituted for that of the statute. Blades v. Hood, Comr.,
We do not consider the assignment sufficient at law to keep the judgment alive, and the judgment of the court below is
Affirmed.