"Where one debt is due to the creditor in his own right and another to him as trustee or agent for another, and neither is secured, the creditor cannot apply the whole of a general payment to his own debt, but must apply it pro rata to both debts; for this is a part of his duty as trustee, to take the same care of the debts of his cestui que trust as of his own." 13 And if the non-payment of one debt (as rent due under a lease) will cause a forfeiture, the creditor cannot appropriate a payment to other claims.14 Of course, application cannot be made by the creditor to a claim which has no validity,15 and while it is unnecessary to prove that the debtor in terms admitted the validity of the claim to which the creditor applied a payment,1* it seems clear that since the debtor, though not directing the exact application of a payment, may exclude a particular application; and since it should be the primary principle that no violence is done to the intention of the debtor as expressed to the creditor by words or acts or circumstances, the creditor cannot appropriate the payment to a claim which he knows is disputed however little ground there may be for the dispute.17 Appropriation cannot be made by the creditor to an illegal claim.18
11 Mayfield v. Wadsley, 3 B. & C. 357, 362, per Abbott, C. J.; Murphy v. Webber, 61 Me. 478; Haynes v. Nice, 100 Mass. 327,1 Am. Rep. 109; Mueller v. Wiebracht, 47 Mo. 468. See also Arnold v. Mayor, 4 Man. & G. 860.
12 Mills v. Fowkes, 5 Bing. N. C. 455; Williams v. Griffith, 5 M. & W. 300; Armistead v. Brooke, 18 Ark. 521; Ramsay v. Warner, 97 Mass. 9; Leach v. Curtin, 123 N. C. 85, 31 S. E. 269; Moore v. Kiff, 78 Pa. 96; Hopper v. Hopper, 61 S. Car. 124, 39 S. E. 366; Rowell v.-Lewis' Est., 72 Vt. 163, 47 Atl. 783. As to the effect of such an application in removing the bar of the statute, see supra, Sec. 178.
(s) citing Scott v. Ray, 18 Pick. 360; Barrett v. Lewis, 2 Pick. 123; Cole v. Trull, 9 Pick. 325. Of course if there is appropriation by the debtor to the individual claim the payment is applicable to that. Artificial Ice Co. r. Pratt (S. Dak.), 176 N. W. 45.
14 Lowther v. Heaver, 41 Ch. D. 248.
15 Scheffer v. Tosier, 25 Minn. 478.
16 McLendon v. Frost, 57 Ga. 448.
17 Burn v. Boulton, 2 C. B. 476; Perot v. Cooper, 17 Col. 80, 28 Pac. 391, 31 Am. St. Rep. 258. See also Stone v. Talbot, 4 Wis. 442.
18 Armour Packing Co. v. Vinegar Bend Lumber Co., 149 Ala. 205, 42 So. 866; Phillips v. Moses, 65 Me. 70;
Nor can the creditor apply a payment to a debt not matual if other debts to which the payment might be applied are due Neither debtor nor creditor can direct the application of voluntary payments, such as those enforced by judicial pro ceedings.20