ON MOTION BOB EEHEAEING-.
Ellison, J.The case of Worley v. Dryden, 57 Mo. 226, cited in the motion for rehearing, has no application. In this case, both parties agree that the deed was not to be considered an absolute deed. Defendant testified that he valued the land at more than the amount of the note. And he says, ‘ ‘ I agreed with Bender. that if I paid this four hundred dollars within a certain time, I think three or four months, he was to redeed it to me; if not he was to keep the land.” On cross-examination defendant further said, “I drew an order on Richardson to transfer the land to Bender at the samé time that I gave the note. I had the privilege of redeeming at a certain time. ’ ’ “I deeded the land absolutely, but reserved the right to redeem. I knew he had the note but never took it up or demanded it of him. It was his land after a certain time ran out. I had the right for a certain time to pay the note and redeem the land.” See Wilson v. Drumrite, 21 Mo. 325.
The dispute between the parties at the trial was whether the deed was a mortgage or conditional sale; when such is the question, the doubt is resolved in favor of its being a mortgage. Authorities in original opinion.
There is no question but that part payment of a note takes it out of the statute, that is, the limitation will only begin to run from the day of payment. This is true, if the payment made by the party sought to be *248held, whether it be made before or after the note is barred. Shannon v. Austin, 67 Mo. 485. From the mere fact of payment of a part of the debt, nothing more appearing, the law presumes an acknowledgment or new promise.
In this state the holder makes a prima facie case by merely showing a part payment without going further.
If 'the partial payment is made without intending it should operate as an acknowledgment as to the residue, such lack of intent must be evidenced by some act of the payor and should be made to appear by him. Notwithstanding the statute requires a new promise to be evidenced by a writing signed by the party sought to be charged (secs. 3248, 3249); yet section 3250 declares that nothing in said sections shall in any manner alter the effect of “a payment of any principal or interest made any person.”
So it is held that the payment by one of two joint obligors, made before the obligation is barred, will take the case out of the statute as to both. Craig v. Callaway Co., 12 Mo. 94. The payment of interest by one of several promisors is held to be an acknowledgment as to all. Callaway v. Johnson, 51 Mo. 31. And, if the payment be made by a co-maker before the bar attaches,'it will take the case out of the statute as to both. Bennett v. McCause, 65 Mo. 194. If made by one partner, though after dissolution, it will take the case out of the statute as to the co-partner. McClurg v. Howard, 45 Mo. 365. So, if the payment be made by the administrator of one of the joint promisors it keeps the'debt alive as to all. County of Vernon v. Stewart, 64 Mo. 408.
These cases are cited to show that it is not necessary that the party sought, to be held should himself make the payment, and that if it is made “by any person authorized to make it,” it is sufficient. Bennett v. *249McCause, supra. Whatever may be the view in other jurisdictions, we must follow the rule as laid down in this' state to its logical and natural end.
As before stated, if payment is made, nothing appearing to show a contrary intention, the payment alone is sufficient to prevent the statute barring the claim.
Payment of a portion of an ascertained debt is an admission that the whole is then due. Haven v. Hathaway, 20 Maine, 345; 97 Mass. 476. It is equally clear that a party need not pay by his own hand, he may do so by his agent. Ib. And this agent may be the payee himself, as where the payor gives the payee collateral.
It was so where goods were given to the payee to be sold and the proceeds applied on the note. Potter v. Blood, 5 Pick. 94. And where another note was delivered to the payee to collect and apply the proceeds. Somberger v. Lee, 14 Neb. 198; Haven v. Hathaway, supra; 97 Mass. 476. When an ordinary mortgage or deed of trust is made to secure the payment of the mortgagor’s promissory note, I am wholly unable to see why the proceeds of a sale under such mortgage is not a payment on the note. Now, by whom is the payment made % Certainly it is not made by an intruding stranger. It is made by the mortgagor’s agent who acts in obedience to the instruction which his principal has given him in the mortgage. Every mortgagee may be said to have an order from the mortgagor, either in express terms or by operation of law, that the proceeds of the sale of the land shall be applied as a payment on the note. A -payment thus made is not an involuntary payment. It is a payment in obedience to the direction of the payor, voluntarily given when he éxecuted the mortgage. Just as. much the voluntary act of the payor as when he assigns other notes as collateral with directions to apply the proceeds on the principal note.
*250We mean our remarks to apply only to a case where the agent (the mortgagee or trustee) has made the payment on a note not yet barred, for such agent’s authority to acknowledge an obligation already dead might present a different question.
As stated in the original opinion our chief difficulty has been over the manner of the sale of the property, but the conclusion we reached is the opinion we entertain, as the result to be deduced from the authorities in this state.
While we do not wish to be understood as standing committed in the matter, we will suggest in view of a retrial of the cause, that a question of the reasonableness of the time of the sale of the land by plaintiff might be a proper subject of inquiry. See Potter v. Blood, 5 Pick. 94.
The motion for rehearing is overruled.
All concur.