Letson v. Kenyon

The opinion of the court was delivered by Brewer, J.: This was an action on three promissory notes; and the substantial question is, whether certain payments which were in fact made within five years prior to the commencement of the action, avoided the bar of the statute of limitations. The facts respecting such payments are these: The maker of the notes, after their execution, made an assignment to one A. M. Crocket, for the benefit of his creditors. These notes were scheduled in said assignment; the assignee discharged the duties of the assignment, and out of the proceeds of the assigned property made these payments. The assignment in terms directed the assignee to sell and apply the proceeds of the property to the payment of these and other debts. We have a statute regulating assignments for the benefit of creditors; and the proceedings under this assignment were had in conformity to the provisions of such statute. But for such payment, the notes were outlawed. Were such payments sufficient to avoid the bar of the statute? The statute (code, §24) provides that: “When any part of the principal or interest shall have been paid, ... an action may be brought in such case within the period prescribed for the same after such payment.” Whatever may be the rules elsewhere, this statute controls the matter in' this state. Here, statutes of limitation are held to be statutes of repose. (Taylor v. Miles, 5 [303] Kas. 499; Elder v. Dyer, 26 id. 604.) Partial payments made by one debtor will not suspend the running of the statute in favor of other debtors on the same obligation. (Steele v. Souder, 20 Kas. 39.) But here the party sought to be charged is the one for whom and out of whose property the payment was made. It was made in pursuance of an express direction. So, upon the maxim Qui facit per alium, faeit per se, it would seem that this payment was within the very letter of said § 24. It is true this payment was not made at the time the authority to pay was given; but the statute makes the payment itself, and not any prior authorization or act, the date from which the limitation commences. Suppose, for instance, the debtor should send money by a friend with instructions to pay it upon his note, and in consequence of the distance which the money had to be carried, or the absence of the creditor from his ordinary place of business, or for any other reason, the payment was not in fact made for days or weeks after the money had left the debtor’s hands: the statute would date from the time the creditor received, and not from the time the debtor parted with it. The same rule holds good where the debtor intrusts to an agent any personal or real property with express instructions to sell and apply the proceeds in payment of that debt. The statute would then date from the time the agent executed his trust and handed the money to the creditor, and not from the time the debtor gave authority to his agent. Now that is precisely this case. The debtor placed property in the hands of an assignee, with instructions to sell the property and apply the proceeds in payment of these, among other, debts. He did so sell and pay. That payment was the act of the debtor, for his benefit, and out of his property. It seems to us there would be no question but for the existence of the statute concerning assignments for the benefit of creditors. That statute regulates all proceedings under such assignments; prescribes the duties of the assignee, and by placing his proceedings under control of the district court [304] makes them at least quasi judicial. In consequence of this, it has been held that the statute, instead of the terms of the assignment, controls the acts of the assignee; that he is not technically the agent of the assignor, but the statutory trustee for both debtor and creditors. His acts in payment are not the acts of the debtor nor his agent. He represents the law in distributing the proceeds of trust property placed in his hands. In support of this, the cases of Marienthal v. Mosler, 16 Ohio St. 566; Stoddard v. Doane, 7 Gray, 387; Picket v. King, 34 Barb. 193; Roosevelt v. Mark, 6 Johns. Ch. 266, are cited. These authorities seem to be in point, and to sustain the proposition. The argument in support thereof is very fully stated in the case of 16 Ohio St., supra. It is not satisfactory to us. The assignment is the voluntary act of the assignor. The manner in which it is to be carried into effect may be prescribed by statute. But does that make the acts of the assignee done under the assignment, in the manner prescribed, any the less done by direction of the assignor? He may or may not assign. If he does, he in effect says to the assignee: Do these things in the time and way named. He practically adopts the statute as a part of his direction to his assignee. The existence of an assignee, and his power to take any action, depends in the first instance on the will of the assignor. Statutes often control the form of deeds and acknowledgments, the manner and methods of many proceedings, and when a party makes a deed, or resorts to any of these proceedings, he must follow the forms and methods prescribed. But still what is done is his act. Take the case at bar: The law concerning procedure under voluntary assignments was in force. The debtor makes an assignment. What is that but saying to the assignee: “Take possession and dispose of my property in the manner prescribed by that statute”? Can he now say that he did not direct what should be done? More than that, the act of the assignee was not only in harmony with the provisions of the statute, but in obedience to the express direction of the assignor. In a double sense, therefore, it was his act. It must be remem [305] bered that this was not an involuntary proceeding on the part of the debtor, and that the property was not taken by legal process, and against his will, for the satisfaction of his debts. We think, therefore, notwithstanding these opposing authorities, that when a debtor chooses to make an assignment, and when in such assignment he makes an express direction to his assignee to sell the property assigned; and apply the same in payment of certain scheduled debts, and the assignee does as directed, that payments so made are payments by the debtor within the meaning of said § 24. (See Jackson v. Fairbanks, 2 H. Black. 340; Barger v. Durvin, 22 Barb. 63.) The judgment will be affirmed.