dissenting.
The opinion in this case seems to be predicated upon section 22 of the code, but to my mind this section has no application to the case at bar. That section contemplates an acknowledgment of an existing liability for the debt. Fenner was not liable for the debt, nor did he make any payment thereon. For the purpose of removing the lien of the mortgage from the land which he had purchased, but which mortgage he had not assumed or agreed to pay, he offered to himself execute a note and mortgage for a specific sum. While this offer was at first accepted, it was subsequently refused by plaintiff. Nothing whatever was done under it by either party. Under these circumstances I do not think there is anything in what he did whicli could operate to toll the running of the statute of limitations. I think the district court was right and the judgment should be affirmed.