48 Neb. 403 | Neb. | 1896
In the state of Missouri, on the 26th of February, 1883, James W. Oarr executed and delivered his certain promissory note to one Irene Moffitt, and to secure the payment of said note he executed a trust deed on certain real estate in Missouri to one George S. Baker as trustee. The trust deed provided that in case Oarr should fail to pay his note according to its tenor, that upon the request of the holder of said note the trustee, or, in case of his absence, death, refusal to act, or disability in anywise, the then sheriff of Worth county, Missouri, should proceed to advertise the property for thirty days and sell it at public vendue and apply the proceeds of the sale towards the payment of the note. The note made by Oarr matured on the 26th of February, 1886, and no part of the principal or interest of the note was ever paid by him afterwards. On the 16th day of October, 1886, the sheriff of Worth county, after having duly advertised the real estate conveyed by the trust deed, sold it at public vendue and paid the proceeds of the sale to the holder of the note, who indorsed the amount of the said proceeds thereon. Irene Moffitt brought this suit in the district court of Douglas county against Oarr to recover
Section 10 of tbe Code of Civil Procedure provides that an action on a contract or promise in writing must be brought within five years, and section 22 of tbe Code provides: “In any cause founded on contract, when any part of tbe principal or interest shall have been paid, * * * an action may be brought in such case within tbe period prescribed for tbe same after such payment,” etc. Tbe present suit was brought on tbe 15th of October, 1891, or more than five years after tbe maturity of tbe note, and tbe defense of tbe statute of limitations is good, unless tbe credit of tbe proceeds of tbe sale of tbe lands conveyed by tbe trust deed, made on tbe note by tbe bolder thereof on tbe 16th of October, 1886, was a payment on tbe note within tbe meaning of said section 22 of tbe Code of Civil Procedure. Tbe sole question presented, then, is, Did tbe sale of tbe lands conveyed by tbe trust deed, the payment of proceeds of said sale to tbe bolder of tbe note, and her crediting said note with said proceeds of tbe sale on tbe date thereof, amount to a payment on tbe note within tbe meaning of said section 22 of tbe Code of Civil Procedure?
In Sornberger v. Lee, 14 Neb., 193, this court held: “Tbe
In Whitney v. Chambers, 17 Neb., 90, this court held: “The payment of a dividend by the assignee of an insolvent debtor is not such a part payment as will, under section 22 of the Code, take the residue of the debt out of the statutory limitation as against such debtor.” This case is sustained by the great weight of authority, and it was decided and rests upon the principle that the sale of the property of the maker of the note by his assignee, and his application of the proceeds of such sale towards the payment of the note, was not a voluntary payment made on the note by the maker, but was a payment in invitum. True, the assignee was in a sense the agent of the maker of the note, but the assignee was nevertheless an agent of the law, one of the instrumentalities provided by the law for disposing of the assets of the insolvent debtor and applying the proceeds thereof towards the payment of his debts. To the same effect are Roscoe v. Hale, 7 Gray [Mass.], 274, Stoddard v. Doane, 7 Gray [Mass.], 387, Richardson v. Thomas, 13 Gray [Mass.], 381, and Battle v. Battle, 21 S. E. Rep. [N. Car.], 177.
In Kallenbach v. Dickinson, 100 Ill., 427, the supreme court of Illinois held that a payment made by one joint
In Hughes v. Boone, 19 S. E. Rep., 63, tbe supreme court of North Carolina held: “A partial payment of a judgment made on execution does not interrupt tbe running of tbe statute of limitations.” To the same effect see In re Raeder, 31 Atl. Rep. [Pa.], 929. *
Tbe principle upon which tbe cases last cited rests is that tbe payments were not voluntary payments made, by tbe debtor, but if they were payments at all they were payments made involuntarily.
In Harper v. Fairley, 53 N. Y., 442, the court, in discussing tbe question under consideration, said: “A part payment, whether made before or after tbe debt is barred by tbe statute, does not revive the contract unless made by tbe debtor himself or by someone having authority to make a new promise on bis behalf for tbe residue.”
It is to be observed that section 22 of tbe Code of Civil Procedure does not say by whom nor under what circumstances a payment must have been made upon a note in order to arrest tbe running of tbe statute of limitations, but we think, both upon reason and authority, that part payment, within'tbe meaning of said section of tbe Code, is a voluntary payment made by tbe debtor himself or by someone authorized by him to make tbe payment; and that a payment made on a debtor’s note by tbe sale of bis property on execution, or under any legal process whatever, is not such part payment by tbe debtor as is declared by said section 22 of the Code to have the effect of arresting the running of tbe statute of limitations.
In Leach v. Asher, 20 Mo. App., 656, one division of the court of appeals of the state of Missouri held that part payment by a trustee from the proceeds of a trustee sale of part of a debt secured by the deed of trust did not have the effect of arresting the running of the statute of limitations, while in Bender v. Maride, 37 Mo. App., 234,. another branch of the court of appeals of Missouri held exactly the reverse. We have not been referred to or been able to find any decision by the supreme court of Missouri upon the question under consideration; but Campbell v. Baldwin, 130 Mass., 199, is a case exactly in point, and there the court held: “If the assignee of a mortgage on real estate containing a power of sale sells the mortgaged premises, and after paying the expenses of the sale applies the balance to the mortgage debt, this does not operate as a part payment on the note so as to
Affirmed.