23 Kan. 310 | Kan. | 1880
The demurrer was improperly sustained. By the execution of the undertaking and receiving back the wheat, Dively & Co. admitted that the property was attached as the property of E. W. Sizer, and promised it would be forthcoming to answer the judgment of the court in the action of Haxtun and Ogden against Sizer. By such admission, promise and conduct, they are precluded from alleging property in themselves; therefore the answer of Haxtun and Ogden sets forth a valid defense to the interplea. The principle thus stated was decided in Sponenbarger v. Lemert, ante, p. 62. In that case one Lemert obtained a judgment before a justice of the peace against George French. The justice issued an execution on the judgment, and placed it in the hands of a constable for collection. The constable levied the execution upon certain personal property as the property of French. The property was left in the possession of French,, the constable taking a redelivery bond executed by French and one Samuel Biard. Afterward, Biard claimed the property belonged to him, and not to French. Mr. Justice Valentine, in speaking for the court, said: “ The giving of the redelivery bond by Biard and French, in which they substantially admitted that the property belonged to French,, estopped Biard from denying that the property belonged to French. . . . Parties cannot be allowed to gain advantages (the possession of the property levied on) by making admissions, and then, to deny the truth of such admissions to the injury of others, who relied upon their truth, and who had a right to rely thereon.” Bursley v. Hamilton, 15 Pick. 40; Jones v. Peasley, 3 G. Greene (Iowa), 52; Staples v. Fillmore, 43 Conn. 510. See also Rutledge v. Corbin, 10 Ohio St. 478.
The order and judgment of the district court will be reversed.
