#### Z. Z. GRANTHAM v. R. A. NUNN, Trustee; C. K. TAYLOR, MRS. MARY BRYAN and T. W. HOLTON.

(Filed 24 September, 1924.)

1. Injunction. — Equity—Findings of Fact — Issues—Trial by Jury — Appeal and Error.

In dismissing a preliminary order restraining tbe sale of land under a mortgage, wherein tbe controversy is as to whether an outstanding note it secures has been paid by the plaintiff! or another who claims, in subro-gation of the mortgagee’s right, it is reversible error for the Superior Court judge to attempt to deprive the plaintiff of his right to a trial by jury of the issuable matter, unless he has waived his right thereto.

*240S. Same — Mandamus.

The remedy by mandamus is not the remedy available for the enforcement of equitable fights concerning only the pecuniary interest or the proprietary rights of litigants; and where the equitable right by injunction is sought by the plaintiff in the action to enjoin the foreclosure of a mortgage on his lands, and the temporary order has been issued and dissolved, the trial judge may not, as in mandamus, exclude the rights of the plaintiff from a trial by jury on the issues arising on the pleadings.

Civil ACTION, beard on return to a preliminary order restraining sale of land by defendant, trustee, beard before Daniels, J., bolding tbe courts of tbe Fifth District. From CuaveN.

On tbe bearing it was made to appear tbat on 8 April, 1918, Judge Henry R. Bryan, now deceased, and bis wife, Mary N. Bryan, sold and conveyed to L. T. Grantham a tract of land in said county for $5,900.00,. evidenced by eleven serial notes for $500.00 each, due on 1 March in successive years from 1919 to 1929, inclusive, and a $400.00 note due 1 March, .1930, tbe interest payable annually on 1 March, and secured by deed of trust to secure said- notes to defendant R. A. Nunn, with power of sale by him in case of default in paying tbe taxes and tbe respective amounts and interest as they became due, etc.

Second, tbat on 4 December, 1918, said L. T. Grantham sold and conveyed tbe land, subject to said deed of trust, to defendant C. K. Taylor; and as part of tbe jrarchase money tbe latter assumed tbe payment of tbe Bryan notes, and in addition promised to pay to L. T. Grantham $6,545.50, which last sum was secured by a second mortgage on tbe property.

Tbat default having been made on this second mortgage, tbe trustee therein foreclosed by sale, when Z. Z. Grantham became tbe purchaser and took a deed for said property, subject to tbe first mortgage.

Tbat in December, 1923, said-purchaser, Z. Z. Grantham, instituted tbe present action, seeking to redeem tbe property, and alleged, among other things, tbat be bad satisfactorily arranged with tbe beneficiaries of tbe first mortgage, Mrs. Bryan, et'alsfor tbe payment of all tbe notes now outstanding and unpaid, and demanded of tbe trustee tbat be cancel of record tbe first deed of trust, which said proper and reasonable request was declined by tbe trustee on tbe alleged ground tbat two of tbe $500.00 notes now past due were held by defendant T. W. Holton, who claimed tbat be bad advanced tbe money to pay tbe same, under an agreement with defendant Taylor tbat tbe same should continue to be a lien on tbe land through tbe original purchase-money mortgage. Said T. "W. Holton was made a party defendant by reason of said claim, and plaintiff in bis verified complaint averred tbat said claim was *241entirely invalid, as said notes bad been paid outright by C. K. Taylor, and defendant Holton bad no interest or claim on tbe property, etc.

As ancillary to tbe principal suit, plaintiff applied for and obtained an order to show cause in tbe form of a mandatory injunction requiring defendant to appear and show cause wby said deed of trust should not be canceled of record on payment of tbe amount actually due, as claimed and alleged by plaintiff.

Defendant appeared and filed bis affidavits in response, making averment of bis having lent tbe money to C. K. Taylor with which to pay said notes, and under an agreement that same should continue to be secured by tbe original purchase-money mortgage.

On tbe bearing before Judge Frank A. Daniels, at January Term, 1924, bis Honor finds tbe facts to be as alleged by defendant Holton, and denied plaintiff’s application for an order directing present cancellation of tbe deed of trust. From this order plaintiff appealed, and tbe judgment of bis Honor was affirmed here, tbe Court bolding that on tbe facts as stated by defendant Holton and sustained in tbe findings of tbe lower court, a right of subrogation would arise to said defendant. This opinion having been certified down, tbe trustee, Nunn, advertised tbe land for sale under tbe purchase-money mortgage or deed of trust for default in paying interest, taxes, and tbe unpaid purchase money. Thereupon plaintiff applied for and obtained from Judge Daniels a preliminary injunction with an order to show cause wby same should not be continued to tbe final bearing. At such bearing defendants appeared and claimed that tbe former order made by Judge Daniels, and affirmed by tbe Supreme Court was a final determination of tbe matters in dispute in defendant Holton’s favor. Tbe court, being of a contrary opinion, entered judgment that on payment of all taxes due, etc., tbe restraining order be continued to tbe bearing, from which judgment defendant Holton appealed.

Guión & Guión for plaintiff.

J. H. String-field and T. D. Warren for defendant Holton.

Hoke, C. J.,

after stating tbe case: "While tbe findings of fact made by Judge Daniels on 24 January, 1924, and affirmed by this Court are definite in form and presently sustain tbe position of T. ~W. Holton, tbe appellant, a proper perusal of tbe record will disclose that these findings were made on tbe bearing of a preliminary restraining order and for tbe purposes only of tbe questions as therein presented, and in such case it was by no means tbe purpose nor was it within tbe power of tbe learned judge to conclude tbe parties on issuable matters which might arise on tbe pleadings and be presented by tbe parties at tbe final bear*242ing. Owen v. Board of Education, 184 N. C., 267; Sutton v. Sutton, 183 N. C., 128; Moore v. Monument Co., 166 N. C., 211.

In Sutton v. Sutton, supra, wherein tbe lower court dissolved tbe restraining order and entered judgment for defendant, tbe governing principle is stated as follows: “Upon tbe bearing by tbe judge upon tbe question of continuing a restraining order to tbe bearing, tbe judge, upon proper findings (and it may be added on tbe evidence presented and without findings), may dissolve tbe temporary order, but in doing so it is error for him also to determine an issue of fact material to tbe rights of tbe parties and which should be reserved for tbe jury to pass upon at the trial.”

And in Owen v. Board of Education, supra, the Court said: “The facts in evidence are fully sufficient to support and justify the conclusions of the trial judge, and bis judgment dissolving the restraining order must be upheld, but we think his Honor went beyond the powers conferred upon him when be undertook to make final determination of the rights of the parties and adjudged that defendants go without day.”

In tbe case before us as now presented tbe issuable matter determinative of tbe rights of these litigants is whether tbe purchase money notes now held and claimed by appellant Holton were, paid outright by C. K. Taylor, tbe second mortgagor, or were paid with money advanced by appellant to said Taylor under circumstances which conferred upon appellant tbe right of subrogation as indicated in our former opinion. On this issue, and in ordinary civil actions, tbe parties are entitled to a jury trial unless waived by them, and on careful examination we find no such waiver 'on tbe record as tbe law permits and requires. Wilson v. Bynum, 92 N. C., 717; C. S., 556.

It is contended for appellant that tbe first bearing before Judge Daniels was in reality an application for a mandamus in which by our statutes a party litigant is not entitled to a jury trial unless tbe same is demanded in apt time. Tyrrell v. Holloway, 182 N. C., 64; C. S., 868. It will be noted, however, that this statutory provision applies to actions of mandamus proper, a writ allowable only for tbe enforcement of clearly defined legal rights and more usually in matters of public or guasi-public concern. So far as examined, it is never available for tbe enforcement of equitable rights which concern only tbe pecuniary interest or proprietary rights of individual litigants. Person v. Doughton, 186 N. C., 724; Service Co. v. Power Co., 179 N. C., 330; Wall v. Strickland, 174 N. C., 298; Telephone Co. v. Telephone Co., 159 N. C., 9; Edgerton v. Kirby, 156 N. C., 347; Turnpike Co. v. McCalla, 119 Ind., 382; High on Injunctions, sec. 2; Beach on Injunctions, sec. 9.

*243It now appears tbat in tbis action, brought originally to redeem the land from the encumbrance of a purchase-money mortgage, plaintiff has paid off all the notes secured other than those held by appellant, and the only question now remaining is whether, as stated, appellant is entitled to enforce the lien for the notes claimed and held by him under the principles of subrogation, both being clearly for the enforcement of equitable rights and for which mandamus does not lie.

There is no error, and the judgment below is

Affirmed.