This is a suit by appellee against appellant upon two instruments in writing under seal, referred to in the record and brief as a note and mortgage. These instruments were due October 1, 1908, and the suit was filed more than 10 years thereafter, on, to wit, November 16, 1918. The statute of limitation of 10 years, among other defenses, was interposed. Other questions are presented on this appeal, but upon a consideration of this defense we are persuaded, under the evidence in the cause, that it is decisive of the present appeal adversely to the appellee, and the other questions are therefore pretermitted.
The burden of proof was upon the plaintiff to show facts which would avoid the plea of the statute of limitation. Forbes v. Plummer, 198 Ala. 162, 73 So. 451. The statute of limitation was sought to be avoided by proof of partial payment within the period of bar, and the pivotal question here is whether or not the plaintiff has carried the burden resting upon him. In a consideration of this question it must be remembered that it is not the mere payment itself which interrupts the running of the statute, nor a mere credit or payment on the indebtedness; the payment must be voluntary and must be the act of the debtor himself. This was pointedly demonstrated in the case of Royston v. May, 71 Ala. 398. There the debtor owed more than one debt to the creditor, and a partial payment was made, but without direction as to its application, and the creditor himself made the application. It was held that such application by the creditor, being his act, and not that of the debtor, did not interrupt the running of the statute of limitation upon the debt to which the payment was applied. The logic of the decision is better illustrated by the following quotation from the opinion in that case:
"The reason and principle on which a partial payment operates to take a debt without the *Page 417 statute of limitations is that by the payment the party making it intends to acknowledge and admit the greater debt to be due; and, as it said in U.S. v. Wilder, 13 Wall. 254, 'if it was not in the mind of the debtor to do this, then the statute, having begun to run, will not be stopped by reason of such payment.' * * * And Erskine, J., said: 'In order, by a part payment, to take a case out of the operation of the statute, the payment should be made on account of the particular debt; the reason is that the payment is taken as an acknowledgment, and therefore the intention of the party making it is material.' "
It is not a mere payment that interrupts the running of the statute of limitations. The payment must be a partial payment of a debt the debtor recognizes as subsisting and intends to extinguish in part. If this does not appear, an acknowledgment of an existing liability and a willingness to make further payment is not shown, and the running of the statute is not interrupted. See Minniece v. Jeter, 65 Ala. 222; Royston v. May, supra.
The holding of this court in the Royston Case, supra, is supported by the overwhelming weight of authority, and is rested upon sound reasoning. 17 R. C. L. 923, 924; Holmquist v. Gilbert, 41 Colo. 113, 92 P. 232, 14 L.R.A. (N.S.) 479; Cashmar Supply Co. v. Dowd, 146 N.C. 191, 59 S.E. 685, 14 Ann. Cas. 211; Regan v. Williams, 185 Mo. 620, 84 S.W. 959, 105 Am. St. Rep. 600.
The payment, as the authorities hold, must be voluntarily made by the debtor or in pursuance of his direction, and a payment made by a sale of his property on execution or other legal process or by foreclosure proceedings will not suffice to remove the bar of the statute of limitations. 17 R. C. L., supra.
We infer from the brief of counsel for appellee, in reply to the insistence of appellant's counsel upon the question of the statute of limitations, that he relies largely upon the credits given on the indebtedness in the year 1909. A careful reading of the evidence is persuasive that no such voluntary payment was made by the debtor so as to come within the principle of the foregoing authorities. Defendant testified that in that year he had moved to another place, and, referring to the property received by the plaintiff, he testified "that it was taken" from him, and, indeed, the plaintiff corroborated this statement in that in speaking of this property he uses similar language. This property was embraced in the mortgage, and we gather from a reading of the testimony that it was taken by the plaintiff from the defendant under the assertion of the right of mortgagee, and in the nature of a foreclosure thereof. There was no agreement as to the valuation, nor, indeed, does it appear that the property was acquired by defendant's consent. It may be inferred that no objection was offered, and the utmost that may be said is that he acquiesced in its acquisition by plaintiff.
When we consider the underlying principle on which partial payment operates to take an account from without the statute of limitations, it readily appears that this evidence did not suffice for that purpose. It shows no voluntary payment made on a particular debt, such as to create by implication an admission on the part of the debtor the actual existence of the balance due. We will not discuss the evidence further in detail. It has been read and considered by the court in consultation, and the conclusion has been reached that the plaintiff has failed in his burden of proof to bring the case within the statute of limitation pleaded, and that the court below committed error in the judgment rendered.
The cause having been tried before the court without a jury, the judgment of the court below will be reversed, and one here rendered in appellant's favor.
Reversed and rendered.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.