This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
In order to operate as a waiver of the bar of the statute of limitations the payment made must be a voluntary one.1 A payment made by a debtor to redeem property sold on execution does not revive the original debt.2 The fact that the voluntary payment is the legal result of a prior voluntary act of the debtor does not make such payment operate as a waiver of the bar of the statute. Thus a payment of a dividend on the debts of a corporation by a committee of its creditors to whom its property had been assigned for the benefit of all (In this case the original debt was secured by mortgage. Judgment was taken upon the mortgage notes, execution issued thereon, premises of the mortgagor were sold under such execution, and subsequently the grantee of the property redeemed a portion thereof from the execution sale. This was held not to revive the original debt' so as to prevent limitations from running against the original mor*> gage.) the creditors does not waive the bar of the statute.3 So the payment of a dividend by a trustee or assignee for the benefit of creditors does not prevent limitations from running.4 A trustee under a deed of trust, given by way of mortgage, sold the trust property and applied the proceeds thereof in payment of debts secured by such trust deed. Such payment did not prevent the operation of the statute of limitations.5 So the statute of limitations is not waived by the act of the grantee in possession under a deed which in equity was treated as a mortgage, who receives the rents and profits of the land and applies them to the payment of his debt,6 nor by the act of the holder of the note in selling collateral, transferred to him when the loan was made, and applying the proceeds thereof upon such notes,7 nor by the act of the holder of a note secured by a chattel mortgage, which was given contemporaneously with the note, who subsequently sells the mortgaged property under a power of sale in such mortgage and applies the proceeds thereof to the mortgage debt.8 Most of the cases discussed in this section can be explained also on the theory that the payment in question was made neither by the debtor nor by his authorized agent.9 In some cases, however, it has been held that even where the security was given contemporaneously with the creation of the debt, the creditor is so far the agent of the debtor for the purpose of selling the collateral security and applying the proceeds on the debt, that such application is equivalent to a voluntary payment.10
8 Richardson v. Chanslor's Trustee, 103 Ky. 425; 45 S. W. 774; Ramsay v. Warner, 97 Mass. 8; Brown v. Latham, 58 N. H. 30; 42 Am. Rep. 568; Crow v. Gleason, 141 N. Y. 489; 36 N. E. 497; Rosen-crance v. Johnson, 191 Pa. St. 520; 43 Atl. 360; Lyle v. Esser, 98 Wis. 234; 73 N. W. 1008.
9 Price's Administratrix v. Price's Administratrix, 111 Ky. 771; 66 S. W. 529.
10 Terrill v. Deavitt, 73 Vt. 188; 50 Atl. 801.
1 Thomas v. Brewer. 55 la. 227; 7 N. W. 571; Blair v. Lynch,
105 N. Y. 636; 11 N. E. 947. 2 Hanna v. Kasson, 26 Wash. 568; 67 Pac. 271.
3 Kilton v. Tool Co., 22 R. I. 605; 48 Atl. 1039. See contra, Peabody v. Tenney, 18 R. I. 498; 30 Atl. 456.
4 Richardson v. Thomas, 13 Gray (Mass.) 381; 74 Am. Dec. 636; Stoddard v. Doane, 7 Gray (Mass.) 387; Roscoe v. Hale, 7 Gray (Mass.) 274; Pickett v. Leonard, 34 N. Y. 175; Battle v. Battle, 116 N. C. 161; 21 S. E. 177; Marienthal v. Mosler, 16 O. S. 566; Read v. Johnson, 1 R. I. 81.
5 Moffitt v. Carr, 48 Neb. 403; 58 Am. St. Rep. 696; 67 N. W. 150.
6 Adams v. Holden, 111 la. 54; 82 N. W. 468; Wolford v. Cook, 71
Minn. 77; 70 Am. St. Rep. 315; 73 N. W. 706.
7 National State Bank v. Rowland, 1 Colo. App. 468; 29 Pac. 465; Wolford v. Cook, 71 Minn. 77; 70 Am. St. Rep. 315; 73 N. W. 706; Brown v. Latham, 58 N. H. 30; 42 Am. Rep. 568; Acker v. Acker, 81 N. Y. 143. See to the same effect, Smith v. Ryan, 66 >.. Y. 352; 23 Am. Rep. 60; Gibson v. Loundes, 28 S.'C. 285; 5 S. E. 727.
8 Westinghouse Co. v. Boyle, 126 Mich. 677; 86 Am. St. Rep. 570; 86 N. W. 136.
9 See Sec. 1692.