The Delaware court embraced the absolute bar theory under Article 9 of the U.C.C. in view of a long line of Delaware cases which applied that theory under the Uniform Conditional Sales Act. In view of this Court's rejection of the absolute bar theory in All-American Sub, supra, we disagree with Hansen's assertion that the pre-U.C.C. case of Heaton v. Hoerr, 66 N.D. 430, 266 N.W. 261 (1936), compels us to now adopt such theory under the rationale of Conner, supra. Assuming, for purposes of argument, the correctness of Hansen's assertion that the instant case does not involve an arms length dealing between businessmen, we believe the approach used in All-American Sub, supra, should be followed in the instant case.
The statute requires that the warehouseman shall give a written notice to the person on whose account the goods are held, and to any other persons known by the warehouseman to claim an interest in the goods. Heaton v. Hoerr, 66 N.D. 430, 266 N.W. 261. To interrupt the statute of limitations, a payment must be voluntary and must be the act of the debtor himself, or in pursuance of his consent or direction. 34 Am Jur 266.
The right of recoupment given by statute is an action of grace to the mortgagee. Harder v. Hospital, 69 Wis. 288, 34 N.W. 145; Steidel v. Aitken, 30 N.D. 281, 152 N.W. 276, L.R.A. 1915E, 192; First Nat. Bank v. Jackson, 140 Okla. 282, 283 P. 242, 68 A.L.R. 900; Hill v. First Nat. Bank, 79 Fla. 391, 84 So. 190, 20 A.L.R. 270; Heaton v. Hoerr, 66 N.D. 430, 266 N.W. 261. Where no valid lien for any amount exists at the time of the commencement of the proceeding to foreclose, the court cannot entertain the proceeding for the purpose of granting a personal judgment.
In fact, he testifies without contradiction that he supposed they had the grain in storage for him at some other elevator. In Heaton v. Hoerr, 66 N.D. 430, 266 N.W. 261, we show that where the warehouseman sells grain to satisfy the lien for storage without complying with the provisions of the statute, § 3125a33, there is a void sale and therefore conversion which extinguished the plaintiff's lien. Such statute requires a description of the goods against which the lien exists.