{dissenting). — Finding myself unable to concur in the majority opinion of the court, I deem it not improper to give my reasons for my nonconcurrence.
The suit is against the defendant in his official capacity as receiver of the Fifth National Bank of St. Louis, he having been duly appointed to that position by the comptroller of the currency of the United States, under the national banking act, 13 Statutes at Large, p. 99. While it is said in Case v. Terrell, 11 Wall. 199, “he represents the bank, its stockholders, its creditors, and does not in any sense represent the government,” he is, nevertheless, an officer of the government, appointed by it, and amenable to it. His duties are not defined by contract, but by act of congress. Thus in Platt v. Beach, 2 Ben. 303, it is held that a receiver of a national bank, appointed under the thirty-first section of that act, is an officer of the United States. It was so held in Stanton v. Wilkeson, 8 Ben. 357; Frelinghuysen v. Baldwin, 12 Fed. Rep. 395; Kennedy v. Gibson, 8 Wall. 498; Bank v. Kennedy, 17 Wall. 19; United States v. Hartwell, 6 Wall. 385; Price v. Abbott, 17 Fed. Rep. 506; Armstrong v. Ettlesohn, 36 Fed. Rep. 209; and Ellis v. Little, 27 Kan. 707.
“He is not the agent or representative of the par-' ties, but is an impartial officer of the court holding his position and exercising his functions for the common good of all.” 1 Elliott’s General Practice, sec. 194.
The fiftieth section of the national bank act of June 3, 1864 (13 Stat. at Large, 114, 115) enacts:
“That on becoming satisfied, as specified in this act, that any association has refused to pay its circulating notes * * * and is in default, the comptroller of the currency may forthwith appoint a receiver, * * * who, under the' direction of the comptroller, shall take possession of the books, *555records, and assets of every description of such association, collect all debts, dues, and claims belonging to such association, and, upon the order of a court of record of competent jurisdiction, may sell or compound all bad or doubtful debts, and, on a like order, sell all the real and personal property of such association, on such terms as the court shall direct; and may, if necessary to pay the debts of such association, enforce the individual liability of the stockholders provided for by the twelfth section of this act; and such receiver shall pay over all money so made to the treasurer of the United States, subject to the order of the comptroller of the currency, and also make report to the comptroller of the currency of all his acts and proceedings.”
The same section proceeds:
“The comptroller shall thereupon cause notice to be given, by advertisement in such newspapers as he may direct, for three consecutive months, calling on all persons who may have claims against such association to present the same, and to make legal proof thereof. And from time to time the comptroller, after full provision shall have been first made for refunding to the United States any such deficiency in redeeming the notes of such association as is mentioned in this act, shall make a ratable dividend of the money so paid over to him by such receiver on all such claims as may have been proved to his satisfaction or adjudicated in a court of competent jurisdiction; and from time to time, as the proceeds of the assets of such association shall be paid over to him, he shall make further dividends, as aforesaid, on all claims previously proved or adjudicated; and the remainder of such proceeds, if any, shall be paid over to the shareholders of such association, or their legal representa*556tives, in proportion to the stock by them respectively held.”
In speaking of the powers of receivers under this act in Ellis v. Little, 27 Kan. supra, it is said: “The receiver- of a national bank, appointed by the comptroller under the section of the act of congress quoted, is the agent of the United States, and is limited as to his functions by the object of the receivership and the duties which it involves. (High on Receivers, sec. 360; Kennedy v. Gibson, 8 Wall. 498.)” Again, in the same case, it is said: “As the power of a receiver of a national bank appointed by the comptroller is limited, a person dealing with him in his official capacity is bound, as a matter of law to have knowledge of his authority to act and if contracts and agreements are entered into with the receiver in excess of his authority as conferred. by law, the parties contract at their own peril, and the estate of the bank can not be charged for the default or inability of a receiver acting outside of his functions as receiver and beyond the duties which it involves.” See, also, Tripp v. Boardman, 49 Iowa, 410.
Defendant has no interest in the estate other than that which he holds in a fiduciary capacity; his authority and his duty are defined by the. act, which prescribes “the beginning, scope, and end of his duty and functions." Van Antwerp v. Hulburd, 8 Blatchf. 282; High on Receivers [3 Ed.], sec. 360. “But the receiver can not render himself liable, or charge the estate in his hands, by any executory contract, unless authorized so to do by the provisions of the national banking act and by the order of a court of competent jurisdiction obtained under the terms of that act. * * * And his powers being limited, one who deals with him in his official capacity is chargeable *557with knowledge of his authority and contracts at his own peril." High on Receivers, sec. 360.
As no power is conferred on a receiver by the act to make contracts with, or promises to, one or more creditors of the estate in his hands, and as no such authority exists incidental to his general authority, in the absence of such power being conferred by a court of competent jurisdiction, no such contracts ■made by him as such receiver can be upheld, and there is no allegation in the pleadings that authority to do so was ever conferred in this way. The question is not as to whether he might not waive the statute, or any other defense that might exist to the cause of action, but is as to his power and authority to contract not to do so. If he can contract not to plead the statute he can for the same reason contract not to plead any other, defense that he may have, which would open the door wide to fraud and corruption.
Nor is the question as to the power of a creditor to extend the time of payment, or to forbear to sue for a consideration paid, and in that way extend the time of payment beyond the time when due according to the terms of the contract, involved in this case. No one questions that proposition, but the question is as to the authority of Stephens as receiver to contract not to plead the statute, and I am confident that no authority can be found which asserts that he had the power to do so.
A promise, then, by Stephens as receiver, not to plead the statute of limitations having been made without any authority whatever, is not binding on him as receiver, nor on the estate in his hands as such. No one would contend that, if, after a receiver had made such a promise, his receivership should become vacant in some way, - and his successor appointed, such a *558promise would be of auy legal effect, or binding upon his successor. Then if not binding on his successor it must needs be because not binding on the officer making the contract or promise in the first place. There can be no other reason.
If it be true that a receiver may by agreement or promise not to plead the statute of limitations if suit is not brought against him as such on a claim or demand about to become barred by the statute of limitations and thus prevent it from becoming barred, for instance in the casein hand, for the term of five years, or for an indefinite length of time, from the time the ■promise or agreement is made, why may he not do so from time to time until “the leaves of the judgment Book unfold?”
To announce such a rule is but to hold that a receiver of any corporation may by promise not to plead the statute of limitations, on a claim for damages, or on contract against the same which is about to become barred by the statute, continue it in force for the statutory period in which such action is required to be brought from the time the promise is made and so on without end, and thus prevent the statute from ever becoming a bar, which is inconsistent with the letter, policy, and spirit of all law in regard to the powers and duties of receivers.
It appears from the face of the petition, that defendant is sued as an officer, and not as a private citizen, which, for reasons already stated, states no. cause of action, and the objection may be raised for the first time in this court. Smith v. Burrus, 106 Mo. 94; Sweet v. Maupin, 65 Mo. 65; McIntire v. McIntire, 80 Mo. 470; Walker v. Bradbury, 57 Mo. 66; R. S. sec. 2047. If the petition states no cause of action, a good cause of action could not be injected into it by any' *559evidence that defendant may have given as a witness, or any statements that he may have made as such.
The question is not with respect to the rights of defendant to stipulate as to the conduct of litigation about his trust, but is in respect to his power to stipulate against the statute of limitations becoming a bar to the claim sued on at the expiration of five years from the time the cause of action accrued thereon.
In support of his right to do so the case of North v. Walker’s Adm’r, 66 Mo. 453, is relied upon. That case is predicated upon Smarr v. McMaster, 35 Mo. 349.
In the Smarr case the syllabus is as follows: “The administrator of an estate who was security for the payment of a debt, has authority to consent to the creditors granting to the principal debtor an extension of the time of payment, if it be for the interest of the estate;” and in the opinion it is said:
“He [the administrator] is not the unqualified owner of the property of the estate * * * and has not plenary power over it; but he is the owner for every purpose necessary to enable him to discharge the duties of his office, and is the collector, preserver, and disposer of it for the benefit of the creditors, legatees, and distributees of the estate; and therefore, while he may not add to the liabilities of the estate, he may lawfully do many acts for the preservation of the estate which are not specifically named in the statutes, and the diminution of the debts of the estate is an act in preservation of the estate as clearly as many other acts to that end. * * * We are however of opinion, that under the general authority of the administrator to preserve the estate, this power may be exercised by him.”
While this language would seem to indicate that the power to grant the extension was conceded because beneficial to the estate, it was said in the North ease, *560that it was decided “as a mere naked, legal proposition, without reference to the consideration as to whether such agreement was advantageous or otherwise, to the estate.” I submit that this, is a misconception of the ruling in the Smarr case. It will be observed, however, that there was no question involved in that case as to the power of the administrator to contract for the extension of time beyond the statutory period, by which the cause of action on 'the note in question would have been barred, and is not an authority against our contention.
In Wernse v. McPike, 100 Mo. 476, Sherwood, J., in regard to the case of North v. Walker’s Adm’r, supra, said: “Letters of administration were granted December 10, 1868; but the note sued on did not mature till March 17, 1870, and suit was brought on the note in May, 1872, in the St. Louis circuit court; but the note was presented in due time to the probate court, the executor being present and waiving all objections, the judge declining to make a formal allowance because the note was not yet due, and two extensions of time were granted on the note in February, 1870, at the request of the executor, covering a space of two years from the seventeenth of March, 1870, and a written agreement to that effect was filed by the creditor and by the executor and filed in the probate court together with a copy of the deed of trust which- secured that note, various payments of interest on the notes being made from time to time, by the administrator, and filed by him, with the approval of the court, as vouchers, and finally the trust property sold for about three fourths of the debt, and that credited on the note, and upon these facts it was held that neither the two years’ nor the three years’ statute had run against the claim. ”
In that case the agreements were in writing and made with the approval of the probate court, to prevent *561a sacrifice of the property conveyed by deed of trust to secure tbe payment of tbe note in question. Tbe estate in defendant’s hand could not possibly have been benefited by tbe alleged promise by him not to plead tbe statute of limitations; beside, bis duties as receiver are much more restricted than those of an administrator. While an administrator has some discretionary powers with respect' to tbe management of tbe estate in bis bands, a receiver has none. Tbe former represents tbe estate in bis bands, while tbe receiver in this case represents tbe bank, its stockholders and its creditors.
Tbe next question is, did tbe promise of defendant,, if made, not to plead tbe statute of limitations, bring it within tbe meaning of section 6793, Revised Statutes, 1889. That section reads as follows:
“In actions founded on any contract, no acknowledgment or promise hereafter made shall be evidence of a new or continuing contract, whereby to take any case out of tbe operation of the provisions of this article, or deprive any party of tbe benefit thereof, unless such acknowledgment or promise be made or contained by or in some writing subscribed by tbe party chargeable thereby.”
If tbe promise not to plead tbe statute is an acknowledgment of indebtedness, or a promise to pay, or a new or continuing contract, then it comes clearly within tbe meaning of the statute, and is void because not in writing. As to whether such a promise is a new one or. not tbe authorities are in conflict.
In Greenhood on Public Policy, page 506, note 3, it is said such agreements merely amount to new promises. Crane v. French, 38 Miss. 505.
In Shapley v. Abbott, 42 N. Y. 443, Eakl, J., in speaking for tbe court, said: “When tbe bolder of a note presents it to tbe maker and requests payment, *562upon the ground that it is about to outlaw, and the maker, without in any way denying his liability, says that he will not plead the statute of limitations if it should be permitted to run, I think such a declaration is, under the circumstances, of itself sufficient evidence of an acknowledgment of the debt, within the eases decided before the Code, to take the note out of the, statute. It was so held in Burton v. Stevens (24 Vermont, 131). The acknowledgment, then, proved in this case, would have been sufficient to take this note out of the statute of limitations, if it had not been for section 110 of the Code, which provides that ‘no acknowledgment or promise shall be sufficient evidence of a new or continuing contract whereby to take the case out of the operation of this title, unless the same be contained in some writing signed by the party to be charged thereby.’ The only effect of this section is to require that to be proved by writing which could before be proved by parol (Hayden v. Williams, 7 Bing. R. 163). Hence, if the plaintiff relied upon what the defendant said in September, 1858, as an acknowledgment to take the note out of the statute, he would fail simply because it was not in writing. If he relied upon what the defendant then said as an agreement not to plead the statute, he would fail, if for no other reason, because there was no consideration for the agreement. He did not agree with the defendant that he would wait and permit the note to outlaw. Neither could he rely upon what then took place as a waiver by the defendant of the statute of limitations, because there was no consideration to uphold the waiver.”
That case was approved in De Freest v. Warner, 30 Hun, 94.
It will be observed that the statute under which the ruling in that case was made is in almost the same language that the Missouri statute is.
*563So in Randon v. Toby, 11 How. 493, it is held that a stipulation in writing not to plead the statute of limitations founded on a valuable consideration, forms a new promise to pay the money. That case was followed and approved in Mann v. Cooper, 2 App., D. C. 226.
Ins. Co. v. Bloodgood, 4 Wend. 652; Gaylord v. Van Loan, 15 Wend. 308; Warren v. Walker, 23 Me. 453; Webber v. Williams College, 23 Pick. 302; Waters v. Earl of Thanet, 2 G. & D. 166; East India Co. v. Paul, 7 Moore P. C. C. 85; Lade v. Trill, 6 Jur. (O. S.), pt. 1, 272, were all cases where the agreement had the effect of a new promise to pay the debt and actions were brought on the contracts, before the expiration of the time embraced by the new promise. There was no question raised in any of these eases as to whether the promise should have been in writing or not.
So in Gardner v. M'Mahon, 3 A. & E. (N. S.) 561, Patteson, J., in speaking of a promise not to plead the statute, said: “The defendant admits something to be due, though he does not agree with plaintiff as to the amount: but he says, ‘I will not avail myself of the statute, and will put it out of my power to do so.’ That, if taken alone, makes a promise. The expressions which follow do not qualify that promise.”
As the promise not to plead the statute was not a part of the original contract sued on, it can not be regarded otherwise than as a new promise to pay, which is void because not executed' in compliance with the statute.
Conceding (but not admitting) that the promise by Stephens not to plead the statute was not a promise to pay the debt, it was void being against public policy. It has been held that such a contract is an agreement never to set up any such defense. Quick v. Corlies, 39 N. J. L. 11; Warren v. Walker, 23 Me. 453.
*564In Crane v. French, 38 Miss. 505, it was held that a contract or promise by a debtor that, he will never plead the statute of limitations in bar of his debt, is in violation of the policy of the law and void, in that it is not in consonance with “that policy which requires suits to be brought in due season, and discourages stale demands, as calculated to promote litigation and to prejudice the just rights of the parties.”
So in Moxley v. Ragan, 10 Bush. 156, it is said: “The right to plead the statute of limitations is a personal privilege; but will it be insisted that an agreement or promise never to plead the statute is binding. If so, the grocer and merchant, and all others engaged in the business affairs of life, would have only to agree with those who promise to pay, verbally or in writing, that the statute of limitations should never be relied on, * * * in order to render nugatory these wholesome laws, enacted for the peace and welfare of society, and in accord with an enlightened public policy.”
Again, in the same case, in speaking of a contract in advance to waive the benefit of all exemption laws, as against a debt contracted, the court quotes approvingly from Harper v. Leal, 10 How. Pr. 283, the following: “A contract fraught with such consequences-to the family of the debtor is totally at variance with public policy, and therefore void.” Followed and approved in Wright v. Gardner, 33 S. W. Rep. (Ky.) 622. To the same effect is Kneettle v. Newcomb, 31 Barb. 169.
The effect of the promise not to plead the statute, if of any validity at all, was to continue in force the obligation of the contract, regardless of the statute of limitations. It was made while the original was a subsisting liability, and comes clearly within that provision of the statute which provides that no promise shall be evidence of a continuing contract unless such prom*565•Ise be in writing and subscribed by the party chargeable thereby. McCormick v. Brown, 36 Cal. 180. It follows that the contract not to plead the statute being a continuation of the original contract, was void because not executed in compliance with the statute.
Whatever may be the law of estoppel as applicable to a contract or promise not to plead the statute of limitations made by a person in his own right, and in consideration of such promise suit is not brought until such demand is barred by the statute, upon which there is much conflict in the authorities, it has no application to a case like the one in hand where the promise was made by defendant as receiver, he having no power or authority to make such contract, which the party to whom the promise was made was bound to know.
From these considerations it follows that the judgment should be affirmed.
Sherwood and Robinson, JJ., concur.