(specially concurring).
{22} I concur, but want to add some comments. The peculiar facts of this case and the limited issue before this Court allow Defendants’ argument to prevail. It is reasonable to interpret NMSA 1978, § 37-1-16 (1957), to require proof that the partial payment was voluntary. For the claim to be revived here, the partial payment must have been within Defendants’ control. For if the payment is in the debtor’s control, an inference can be drawn that the debtor intended to acknowledge the existence of a still unpaid debt.
{23} In the present case, Defendants assigned the notes apparently as collateral. Yet the payments from the assigned notes appear from the outset to have been applied on the Gregory note. A payment after, and pursuant to, the assignment, and particularly after the six-year period of the statute of limitations, was not a payment over which Defendants had control. Control at the time of the partial payment is the crucial point in this case, because the crux of the question is whether Defendants acted in a manner at the time of the partial payment from which it can reasonably be inferred that they acknowledged the continued existence of an unpaid debt.
{24} It seems at first glance that the result here may be unfair to Plaintiff. If we are reading the circumstances correctly (the record is unclear), the creditor acquiesced in, accepted, and applied continued assigned note payments following the Gregory note maturity date. By continuing to accept and apply payments from the assigned notes, Plaintiff likely could no longer sue based on a default in payment at the Gregory note maturity date in April 1990, and likely could sue later based only on a default in one of the ongoing third party note installment payments. Under these circumstances, it would appear the statute of limitations should not begin to run until default in one of the ongoing installment payments. However, the date of the accrual of the cause of action based on default (which would trigger the running of the statute of limitations) is not an issue here. Plaintiff did not raise this theory below or on appeal. We decide this case based on what appears to be an assumed fact: that Plaintiffs cause of action accrued, and the statute of limitations began to run, at the maturity date of the Gregory note.