(after stating the facts.) Unless the payments made by D. Reeve with money of the estate of N. G. *5Hewitt, furnished him by N. W. Cox, administrator of said estate, and for which Cox was allowed credit, as administrator, in his settlement of Hewitt’s estate, by the probate court of Pulaski county, prevented the bar of the statute of limitations, this action was barred when the suit was begun. The inquiry then is, do these payments have the effect in law to prevent the bar of the statute of limitations? Is the plaintiff’s right of action tolled, notwithstanding these payments?
“Actions on promissory notes and other instruments in writing not under seal shall be commenced within five years after the cause of action shall accrue, and not afterwards.” Act Dec. 14, 1844 (Sand. & H. Dig., § 4827). - This note was not under seal.
“Actions.on writings under seal shall be commenced within five years after the cause of action shall accrue, and not after-wards. Provided, this act shall not apply to any instrument now in existence.” (Sand. & H. Dig., § 4828,) Act March 29, 1889.
. According to the statutes, the right of action on this note was barred within five years from its maturity, unless suit thereon was commenced within the five years, or unless the running of the statute was stopped by a payment thereon within the five years.
Section 5094, Sand. & H. Dig., provides that “in suits to foreclose mortgages or deeds of trust it shall be sufficient defense that they have not been brought within, the period of limitation prescribed by law for a suit on the debt or liability for the security of which they were given.”
It will appear from the statement of facts that the note secured by the deed of trust was given August 1, 1879, and was due three years after date, that is, on August 1, 1882; that the last payment of interest was after N. G. Hewitt’s death, in February, 1887, and was made by D. Reeve December 23, 1889, with'money of Hewitt’s estate furnished him by Cox, administrator of said estate, for which Cox was allowed credit in the settlement of said estate, which was approved by the probate court of said county. Cox furnished this money without any order of the probate court, and it does not appear that any application had been made to said court for an order, or *6that any order by said court for tbe redemption of said lot from the mortgage was ever made. It does appear that said note was never probated, nor allowed as a debt against the estate of N. G. Hewitt, deceased.
Before an administrator can pay or allow any claim against the estate of which he is administrator, the claimant must append to his demand an affidavit of its justice, stating that “nothing has been paid or delivered toward the satisfaction of the demand, except what is credited thereon, and that the sum demanded, naming it, is justly due,” etc. Sand. & H. Dig. § 114; Ross v. Hine, 48 Ark. 304; Alter v. Kinsworthy, 30 Ark. 756.
If the administrator could not allow or pay a claim at all unless the same was authenticated by law, could he by payment upon it stop the running of the statute of limitations?
“A part payment which will revive a debt barred by limitation, or form a new point from which the statute will begin to run, must be such as can be treated as an admission of the continued existence of the debt, and an implied promise to pay the balance.” Chase v. Carney, 60 Ark. 497; Taylor v. Foster, 132 Mass. 33. “It was therefore necessary, by the rules of special pleading, to avoid the statute of limitations, to reply a new promise, under which it was competent to prove an acknowledgment of the debt. * * * It is not enough to prove an admission of indebtedness, if it is accompanied by circumstances which repel such inference, or even leave it in doubt whether the party intended to revive the cause of action.” Roscoe v. Hale, 7 Gray, 275; State Bank v. Woody, 10 Ark. 642. In the case cited from 7 Gray it is held that “the payment of a. dividend by an assignee under the insolvent laws will not take the residue of the debt out of the statue of limitations against the debtor.” (Syllabus). “Proof of payment of part of a debt is, in legal effect, only evidence of an acknowledgment from which a promise tó pay the remainder of the debt may properly be inferred.” Id. p. 276. Wood, Lim. § 97; Alston v. State Bank, 9 Ark. 459. “The part payment must be under such circumstances as reasonably, and by fair implication, lead to the inference that the debtor intended to renew his promise of payment.” Taylor v. Foster, 132 *7Mass. 33. “And it must have been made by the debtor in person, or by some one authorized by him to make a new promise in his behalf. And a payment made by a third person, without authority from the debtor to make it, cannot remove the statute bar, because it does not imply any acknowledgment of the debt by the debtor. Under this rule it is heldthat a partial payment by an assignee for the benefit of creditors will not remove the bar as to the assignor. ****** Nor willapayment by an administrator, under surrogate’s decree, take the debt out of the statute, as to the residue.” Wood, Limitations, § 101. This is equally applicable to a part payment before the debt is barred, which might, if it amounted to a promise to pay the balance of the. debt, form a new point from which the statute would commence to run. But if the administrator, under our probate system, could neither allow nor pay a debt not probated against the estate of which he is administrator (which is the case), how can it be said that the payment by Reeve for Cox, the administrator of Hewitt’s estate, of the interest on this note prevented the bar of the statute attaching, when there was no order of the probate court authorizing such payment, or authorizing redemption of the lot from-the mortgage? How could this be con-' strued into an acknowledgment of the existence of the debt, from which a new promise to pay the balance could be fairly inferred? There was no authority in Cox to make the payment. There could be none to suspend the operation of the statute of limitations by a promise he was not authorized to make. His promise could not set aside the law. No promise could be inferred from such payment. The administrator has no concern with the real estate, unless needed by him as assets for the payment of debts. This was a debt he never could have paid legally, because it was not proved or allowed against the estate, having been barred as against the estate by the two years statute of non-claim when suit was brought.
The decree of the circuit court foreclosing the mortgage is reversed, and the cause is dismissed for the want of equity, as as to the parties appealing.
*8Opinion on Motion for Rehearing.
Filed May 21, 1898.