
    Dezell vs. Odell.
    An officer seizing goods in virtue of an execution, acquires such a special proper, ty in them as entitles him to maintain trover for a subsequent wrongful conversion.
    If after seizing the goods they be delivered to a third person on his giving a receipt promising to redeliver them, and the receiptor afterwards refuse to comply with his promise; the officer may bring either replevin or trover for the goods, or assumpsit upon the receipt, at his election.
    A receiptor, when sued by the officer for the goods, cannot defend on the ground that the levy was excessive.
    If a levy be wantonly excessive, the execution debtor may have his remedy by an action on the case; but the officer’s right of property is in no way affected by the circumstance. Per Cowen, J.
    Where goods seized by a constable upon an execution were delivered to a third person on his giving a receipt promising to redeliver them by a given day, and when the day arrived the receiptor refused to comply with his promise, claiming that the goods, at the time of the levy and receipt, were his own: Held, in trover by the officer, that the receiptor was estopped from setting up title in himself.
    
      Bronson, J. dissented, holding that, as the receipt contained a mere promise to redeliver at a future day, it did not necessarily amount to an admission of title out of the receiptor, nor preclude the supposition of the latter having apprised the constable of his claim at the time of executing the receipt; and there being no evidence upon the question aliunde, the receiptor ought not to 6e estopped. Semble, had the receiptor shown that he was drawn in to sign the receipt by fraud, or through some gross mistake of fact, he would not have been estopped. Per Cowen, J.
    Where a party, either by his declaration or conduct, has induced a third person to act in a particular manner, he will not afterwards be permitted to deny the truth of the admission, if the consequence would be to work an injury to such third person or one claiming under him. Per Bronson, J.
    Great caution, however, should be observed in the application of this rule. Per Bronson, J.
    Before a party is held to be thus concluded, it must appear, 1. That he has made an admission which is clearly inconsistent with the evidence which he proposes to give; 2. That the other party has acted upon the admission; and 3. That the latter will be injured by allowing the truth of the admission to be disproved. Per Bronson, J.
    Various cases relating to the doctrine of estoppels in pais, cited and commented on. Per Bronson, J.
    Technical estoppels—i. e. by deed or matter of record—sometimes conclude the party without any reference to the moral qualities of his conduct: Otherwise, however, as to estoppels in pais. Per Bronson, J.
    Estoppels in pais are not available as in favor of strangers. Per Bronson, J.
    The facts on which an estoppel rests are not to be presumed; but must be proved by the party setting up the estoppel. Per Bronson, J.
    Error to the St. Lawrence C, P., where Odell brought an action of trover against James Dezell. It appeared on the trial in the court below that a judgment was rendered by a justice of the peace in favor of John Lytle against David Mitchell and Alexander Dezell, for $52,08 damages and costs, on which an execution was issued and delivered to the plaintiff below, a constable. The plaintiff gave the execution in evidence, together" with an endorsement thereon in his own handwriting, showing that, on the 1st of October, 1839, he made a levy on one bay horse, one sorrel mare, one double wagon, one bureau and One cow—the property in question. The plaintiff also introduced in evidence a receipt signed by the defendant in these words :
    
      “ John Lytle vs.
    
    Alexander Dezell and David Mitchell. _
    Received of H. Odell, constable, one bay horse, one sorrel mare, one double wagon, one bureau and one cow, which I agree to deliver to H. Odell on the 29th day of October on the premises of Alexander Dezell, at ten o’clock in the forenoon, in the town of Lisbon.
    “ James Dezell.”
    It further appeared in evidence, that at the time and place mentioned in the receipt the plaintiff called on the defendant and demanded the property; but the defendant refused to deliver it up, claiming it as his own. The wagon was then in sight and might have been taken by the plaintiff, but the defendant threatened to prosecute him if he meddled with the property. The defendant offered to prove that he owned the property in question, having purchased it of a third person, with his own funds, and insisted that he was not precluded by the receipt from giving these facts in evidence. The court below rejected the evidence, and the defendant excepted. The defendant also offered to prove that he owned and resided on the farm on which the property in question was, when the levy was made. The court below refused to admit this evidence, and the defendant excepted. The defendant further offered to prove that the wagon—one of the articles of property levied on—would have sold for enough at auction to satisfy the execution. This evidence was rejected by the court, and the defendant again excepted. The jury rendered a verdict for the plaintiff, and, after judgment, the defendant sued out a writ of error.
    
      J. D. McLaren, for the plaintiff in error.
    
      A. B. Jomes, for the defendant in error.
   Cowen, J.

An officer seizing goods in virtue of an execution acquires a special property. That entitles him to maintain trover for a subsequent wrongful conversion. He does not, by leaving the property with another and taking a receipt, part with his interest; but only his possession. The receiptor holds as his delegate or bailee, on the terms specified in the receipt. Upon the officer becoming entitled to a redelivery according to those terms, the force of the receipt is completely gone; and his entire property acquired by the levy reverts. If the receiptor detain it, the officer may bring replevin or trover for the wrong according to its nature. Refusal to deliver is evidence of a conversion. True, an action would also lie directly upon the contract contained in the receipt j but whether the officer will resort to this or sue for the wrong, rests in his election ; as it always does in the election of a bailor under like circumstances.

There is no color for the objection that the wagon alone would have brought sufficient to satisfy the execution. A re- \ ceiptor cannot, under any circumstances, defend himself on the ' ground of an excessive levy. That is a question between the officer and the execution debtor. The latter, if there be a wanton excess, may doubtless have his remedy by an action on the case; but the officer’s right of property is in no way affected by the circumstance. The objection came with the less color in this case, inasmuch as the defendant below, on the officer demanding the property, set up a title to the whole, wagon and all, refusing to deliver any portion of it.

The levy was on the 1st of October, 1839, under an execution against A. Dezell, whereupon the defendant below gave the constable a receipt containing a promise to deliver the property on the 29th. On the constable that day demanding it, the defendant refused to deliver, on the ground that the property was his own. The court below held that he was estopped by his receipt; and I think they were correct.

It may be conceded that, had the defendant’s claim been interposed at the time of the levy, and he had signed the receipt in terms, without prejudice to his right, the question would have been open. The creditor would thus have been put upon his guard, and enabled to seek for other property, on finding that his debtor had no title to that in question. Indeed, here was a course of action on the part of the receiptor directly calculated to influence the conduct of the creditor in a way prejudicial to his interests, unless we hold the receiptor. The officer being induced to part with the possession or to forbear taking actual possession, by the receiptor recognizing his right and agreeing to take or hold for him, was itself an injury, if we now let the defendant go free. We then have a clear case of an admission by the defendant intended to influence the conduct of the man with whom he was dealing, and actually leading him into a line of conduct "which must be prejudicial to his interests, unless the defendant be cut off from the power of retraction. This I understand to be the very definition of an estoppel in pais. For the prevention of fraud, the law holds the admission to be conclusive. The principle is the same as that which prevails between landlord and tenant. The latter must surrender the possession, simply because he has received it.

The general doctrine is not denied. The argument is, that it should not be applied in favor of an officer coming under pretence of legal authority, and demanding the property. It is thought the receiptor should be taken to have been coerced into the giving of a receipt as the only expedient for retaining the possession. I think otherwise. If a man have title, an officer is no more in respect to him than a mere stranger. He may either use the necessary force to retain possession, or take the more usual and prudent course of an action at law for the wrongful seizure. In short, his remedies are, in this respect, the same as those of any other proprietor whose rights are improperly interfered with. The intendment against him .is therefore the same as it would be against a man in possession of land taking a demise from an adverse claimant. It is not enough for him afterwards to show that he had title. If he can show in addition that he was drawn into the admission of an adverse title by fraud, or perhaps by some gross mistake of fact, he may be able to defend himself. But by taking and holding, he draws the onus of showing the fraud or mistake upon himself. The defendant below offered no proof of the kind ; but on the contrary, it is entirely apparent that the title which he proposed to set up at the trial, was known to him at the time of the levy and receipt. The officer was, when he came to sell, for the first time apprised that the defendant had title. This was in general terms. At the trial, he proposes to show that he had purchased it of a third person with his own funds. In short, his conduct may be summed up in this way : He had fraudulently deprived the creditor of possession through the officer, baffled him in his search for other property and in the use of all means for collecting his debt, drawn him by equivocal conduct into the expense of an action; and at the trial, claims the whole as constituting a legal defence. I think it was not so, for the simple reason that the law uniformly throws the consequence of such a course upon the party who leads in it, by applying the salutary-,doctrine of estoppel in pais.

I am of opinion that the exceptions to the decision of the court below were not well taken, and that consequently the judgment should be affirmed.

Nelson, Ch. J. concurred.

Bronson, J. dissenting.

The only question of any importance in the cause, is that which arises upon the defendant’s offer to prove that he was the owner of the property. The court below rejected the evidence, and gave to the receipt the force of a technical estoppel. Upon this offer and rejection of evidence it must be taken for granted that the defendant was in truth the owner of the property and the question then is, whether he has done any act by which he has lost or forfeited his right to the goods. And here it is important to notice that the question of estoppel stands wholly on the receipt; for it does not appear .whether the defendant did or did not claim that he was the owner of the property at the time the levy was made. The plaintiff made out his case by producing the judgment and execution, with his own return of a levy endorsed on the execution,' and by proving the defendant’s handwriting to the receipt. The business may have been transacted when no witness was present; but whether so or not, we have nothing but the facts which have already been mentioned. I repeat, therefore, that the question stands on the receipt alone ; and that cannot conclude the defendant, because it does not necessarily amount to an admission that he did not own the property, or that it belonged to the defendants in the execution. The receipt is entirely consistent with the supposition that the defendant told the officer, at the time, that he was the owner of the property, and that he only consented to receipt it for the purpose of avoiding the inconvenience, either to himself or his friend, of having it immediately removed. Nearly a month was to elapse before the constable proposed to sell, and the use of the goods in the meantime might be a matter of considerable importance to the defendant. Although he was owner, he may not have thought it prudent to resist the officer ; and agreeing to deliver the goods at a future day was not inconsistent with his claim of title.

Technical estoppels, which conclude the party from showing the truth, are, for the most part, by deed or by matter of record. But there are other less solemn acts and admissions which may have the force of concluding the party, and are said to operate as estoppels in pais. When a party, either by his declaration or conduct, has induced a third person to act in a particular manner, he will not afterwards be permitted to deny the truth of the admission, if the consequence would be to work an injury to such third person, or to some one claiming under him. But as this doctrine may have the effect of shutting out the truth, and as the evidence upon which the estoppel arises is not always of the most satisfactory character, too much care cannot be taken in the administration of the rule to see.that it is not allowed to work injustice. Before the party is concluded, it must appear, 1. That he has made an admission which is clearly inconsistent with the evidence he proposes to give, or the title or claim which he proposes to set up ; 2. That the other party has acted upon the admission; and 3. That he will be injured by allowing the truth of the admission to be disproved. The doctrine was well stated by my brother Nelson, in the Welland Canal Company v. Hathaway, (8 Wend. 483.) His words are : “As a general rule, a party will be concluded from denying his own acts or admissions, which were expressly designed to influence the conduct of another, and did so influence it, and when such denial will operate to the injury of the latter.” He added, that the acts and admissions of the party opérate against him in the nature of an estoppel, u where, in good conscience and honest dealing he ought not to be permitted to gainsay them.” (See also Cowen & Hill's Notes to Phil. Ev. 200.) It will be found on looking into the books, that the learned judge did not lay down the rule with too much caution, or with too many limitations. I shall only refer to a few of the cases ; but they will, for the most part, be such as tend most strongly to support the decision of the court below.

In The Presb. Cong, of Salem v. Williams, (9 Wend. 147,) the tenant declared that the property on the demised premises did not belong to him, and that it was moreover such as was exempt by law from distress. The landlord thereupon brought ejectment for the purpose of re-entering for the non-payment of rent. The defendant attempted to defeat the action by showing, that there was sufficient property on the premises liable to distress to countervail the rent; but he was held to be estopped by his admission. Sutherland, J. said, “ the plaintiffs had a right to rely upon it, and the defendant ought not to be permitted to defeat the plaintiffs’ action, by showing that what he then said was false, and thereby reap an advantage from his own wrong and falsehood.” It will be observed, that the evidence which the defendant proposed to give was in direct contradiction to his prior admission; that the plaintiffs had been influenced by, and had acted upon, the admission; and that they would be injured by allowing the defendant to gainsay it. The same features will be found in the case of Stonard v. Dunkin, (2 Campb. 344.) One Knight gave the plaintiff an order on the defendants, who were warehousemen, for a quantity of malt which they had in store. The defendants gave a written acknowledgment that they held the malt on the plaintiff’s account, and the plaintiff advanced ¿67500 to Knight, for which the malt was to be a security. In trover for the malt, the defendants were held to be concluded by their acknowledgment from denying the plaintiff’s title to the property. Chapman v. Searle, (3 Pick. 38,) was much like the last case in its circumstances, and the court asserted the same principle. In Hollister v. Johnson, (4 Wend. 639,) it was held to be the duty of a constable, on an execution from a justice’s court, to search for property before he takes the body of the defendant. But Sutherland, J. said, that was not always necessary. Where the defendant in (he execution declares that he has no property, he has no right to complain if the constable credits his assertion and acts accordingly.” Although this remark was not necessary to the decision of the cause, I fully concur in the principle. In Stephens v. Baird, (9 Cowen, 274,) the constable came with an execution against Benedict, and Stephens pointed out to the officer a quantity of lumber, one fifth part of which he said belonged to Benedict. The constable made a levy, and Stephens receipted the property. It was afterwards sold under the execution, and Baird became the purchaser—Stevens standing by at the sale and giving no notice of his claim to the whole of the property. In an action between Stephens and the purchaser, it was held that the former was concluded from denying that Benedict owned one fifth part of the lumber. Here, again, it will seen that Stephens proposed to prove a fact which was in direct contradiction to his former admission; that the constable had acted upon the admission; and that a bona fide purchaser was to suffer if Stephens was now permitted to set up a claim to the whole of the property. In Pickard v. Sears, (6 Adolph. & Ellis, 469,) the doctrine was thus laid down by Lord Denman : The rule of law is clear, that where one by his words or conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.” The effect of allowing the party to' contradict his admission in that case, would have been to defeat the title of a bona fide purchaser. In Gregg v. Wells, (10 Adolph, & Ellis, 90,) it was held, that if the owner of goods stand by and voluntarily allow another to treat them as his own, by which means a third person is induced to purchase them bona fide, the former cannot recover them from the purchaser. Lord Denman thought the principle of Pickard v. Sears might be stated even more broadly than it was there laid down. He said : A party who negligently or culpably stands by and allows another to contract on the faith and understanding of a fact which he can contradict, cannot afterwards dispute that fact in an action against the person whom he has himself assisted in deceiving.” In Demyer v. Souzer, (6 Wend. 436,) the defendant took possession and had the services of a slave, under a claim and belief that he was the owner by virtue of the will of his wife’s mother; and the plaintiff stood by, knowing all the facts, without asserting any title to the slave. When the plaintiff after-wards brought assumpsit to recover for the services of the slave, and set up a paramount title, it was held that there was no ground for implying a promise by the defendant to pay the plaintiff for the services. It was not a question of estoppel.

The conduct or admission which concludes a party must be plainly inconsistent and irreconcilable with the right which he afterwards sets up. “ Every estoppel,” says Lord Coke, u because it concludeth a man to allege the truth, must be certain to every intent, and not to be taken by argument or inference.” (Co. Lilt. 352, b.) If the act can be referred to an honest and proper motive, the party will not be concluded, although upon one construction his conduct may be inconsistent with the right which he afterwards sets up. (Heane v. Rogers, 9 Barn. & Cress. 577.)

So, too, the admission, however unequivocal it may be, will not operate as an estoppel unless the other party has acted upon it; and then it will only be conclusive in favor of the party who has so acted, and persons claiming under him, and not in favor of a stranger. (Heane v. Rogers ; 9 Barn. 8p Cress. 577 ; Wallis v. Truesdell, 6 Pick. 455.) In the last case, the plaintiff’s property was taken by attachment, he declaring that it did not belong to him ; and he forbade the sale, saying the property belonged to a third person. But as the other party did not act upon the admission, but took and sold the property, it was held that the plaintiff was not estopped from asserting his title. Wilde, J. said, if these declarations had been acted on by the other party, and thereby the plaintiff had acquired some advantages, or the defendants had sustained damages, it would have been otherwise. But the case shows that the admissions of the plaintiff, although made to influence the conduct of the defendants, did not in fact influence them, and that they did not act on those admissions.”

Estoppels by deed or by matter of record sometimes conclude the party without any reference to the moral qualities of his conduct. But estoppels of the kind we are considering are never allowed to operate in that manner. The party is only concluded against showing the truth, or asserting his legal right, when that would have the effect of doing a wrong through his means to some third person. In the language of Nelson, J. in The Welland, Canal Company v. Hathaway, he is estopped <c where in good conscience and honest dealing he ought not to be permitted to gainsay” his admission. It is a question of ethics.

If we apply these principles to the facts before us, it will, I think, be found that there is no estoppel in the case. It does not appear that the defendant has done any act or made any admission which stands in plain contradiction to the right which he proposed to set up on the trial. It was not shown that the defendant had ever said the property belonged to the defendants in the execution, or that he even stood silently by and saw the goods taken as their property without asserting his claim. The plaintiff asks us to infer these facts from the receipt. But that cannot be done, for the reason that the receipt is not at all inconsistent with the supposition that the defendant claimed the property at the time of the levy 3 and it is never proper to presume any thing against the title of a party, from the proof of a fact which is entirely consistent with his title. And besides, facts are not to be presumed for the purpose of building upon them an estoppel which is to shut out the truth. We have already seen upon authority, what is quite obvious upon principle, that an estoppel must be certain, and is not to be made out by argument and inference. It is no answer to say, the defendant might have proved that he claimed the property at the time of the levy. It lies on the party who sets up an estoppel to make out the facts on which the estoppel rests.

We have not been referred to any case which holds that the receipt can have the conclusive effect that is here claimed for it, nor have I met with any such authority. In Acker v. Burrall, (21 Wend. 605,) it was said that the defendant was es-topped by his covenant to deny the plaintiff’s property 3 but that point was not necessary to the decision of the cause, as the pleas were held bad upon other grounds 5 and when the case afterwards came before the court of errors, (23 Wend. 606,) the judgment was affirmed without taking any notice of the supposed estoppel. I may add, that the question there arose upon a deed, which may make a technical estoppel, wdiile here we have nothing but an ordinary receipt. In Stephens v. Baird, (9 Cowen, 274,) the receipt was not treated as a matter of any moment whatever, in reference to the question of estoppel. The party was held concluded from asserting his title, because he had pointed out the lumber to the officer as the property of the execution debtor, and stood by at the sale without giving any notice of his claim to the purchaser. In Harvey v. Lane, (12 Wend. 563,) it was taken for granted that the receiptor might set up a title in himself, but that branch of the defence failed on account of a defect in the defendant’s proceedings.

If this judgment is affirmed, we shall have a new application of the doctrine of estoppels in pais, and one which will be likely to prove a snare to honest and unsuspecting parties.

Judgment affirmed. 
      
      
         In Burskey v. Hamilton, (15 Pick. 40,) assumpsit was brought on an accountable receipt taken by an officer, in these words: “Jan. 11,1832. Then received of John Bursley (the officer) the following goods, &c., which were this day attached by said Bursley as the property of Isaiah Nye (the attachment debtor,) &c.; which goods and chattels I promise to deliver said Bursley on demand," &c. The receiptor at the time of the attachment owned the goods, and so told the officer. Yet held, that he was estopped from setting up his title by way of bar to the action; though, under the circumstances, he might do so in mitigation of damages. In a previous case in the same court, where a similar receipt had been given, and the officer duly apprised at the time of the receiptor’s claim of title: Held, that after the goods had been re-delivered pursuant to the receiptor’s undertaking, he might immediately turn round and recover them from the officer; and that in such action the receipt and re-delivery, though strong evidence against the receiptor’s title, could not be used by way of estoppel. (Johns v. Church, 12 Pick. 557.) The court proceeded upon the ground that the contract contained in the receipt had been performed, and the estoppel ought not to extend beyond the terms and duration of the contract. (Id. 561; and see Bursley v. Hamilton, supra.) Further as to the general doctrine on this subject, see Morrison v. Blodgett, (8 N. Hamp. R. 238.)
     