CLOPTON, J.
The mortgage, from which the plaintiff derives title to the cotton sued for, was executed by J. W. Foster September 11, 1885, In April preceding, defendant *386and Poster, made an agreement, by wbiob the latter gave the former a verbal lien on the crops covered by the mortgage, to secure supplies furnished by defendant, with the understanding that the crop of cotton should be his until the supplies were paid for. Defendant bases his right on a delivery of tbe cotton to him by Poster in pursuance of this agreement. It is not disputed that the cotton in controversy is embraced in the mortgage under which plaintiff claims, and that defendant had notice of it at the time he received the cotton. The only ground of defense is, that plaintiff is estopped from asserting title against the claim of defendant. It is claimed that the estoppel arises on a conversation about furnishing Poster with supplies, which defendant testifies occurred between him and plaintiff about the last of March, or first of April, 1885. We state the conversation in his own language: “I asked Bell to furnish Poster that year. He said he would not; that Poster already owed him. Bell said, ‘You furnish him.’ I replied, ‘If I do, you’ll come up in the fall, and want the crops.’ Bell then said he would not.” Thereafter defendant made the agreement with Poster above stated, and furnished him supplies.
By the agreement defendant obtained only a parol mortgage of the crops. This was invalid under section 1731 of Code of 1886, which was in force at that time. The section declares: “A mortgage of personal property is not valid, unless made in writing and subscribed by the mortgagor.” Defendant was a creditor without a lien, without right in or to the cotton, until its delivery to him.
A false representation by word or conduct, or a concealment of material facts, upon which another has been induced to act to his prejudice, is essential to constitute an estoppel en pais. In ordinary cases, the representation or concealment, must have reference to past or present facts. A representation, relating to future action or conduct, operates as an estoppel only' when it has reference to the future relinquishment or subordination of an existing right, which is made to induce, and by which the party to whom it was addressed has been induced to act. If the mortgage of plaintiff had been an existing lien at the time of the conversation, and his declaration had reference to its waiver or abandonment should defendant furnish Poster with supplies, this might form the basis of an estoppel, the other essential elements being established. But such is not the case. Plaintiff’s mortgage was not executed until several months afterwards, *387It will be observed that tbe only representation of fact, made by plaintiff, was that Foster already owed bim. There is no attempt to prove any facts different from tbe state of things as represented in tbe conversation. The declaration of plaintiff to defendant can be regarded only as a declaration of intention, which may be modified, or, at the utmost, as a promise or agreement. Hence the claim of defendant is, that plaintiff, by his declaration of intention or promise, as it may be construed, estopped himself from the future acquisition of a lien on the crops, which he can set up against the right of defendant, as a creditor without a lien. If any injury has resulted to defendant, it was occasioned by the failure of the plaintiff to perform his contract, for which, if it be a binding contract, he is liable in damages. The breach of an executory agreement does not constitute an estoppel en pais. It possesses none of the essential elements. —Starry v. Korah, 65 Iowa, 267" court="Iowa" date_filed="1884-12-08" href="https://app.midpage.ai/document/starry-v-korab-7101303?utm_source=webapp" opinion_id="7101303">65 Iowa, 267; Jackson v. Allen, 120 Mass. 64" court="Mass." date_filed="1876-03-07" href="https://app.midpage.ai/document/jackson-v-allen-6418459?utm_source=webapp" opinion_id="6418459">120 Mass. 64; Ins. Co. v. Mowby, 96 U.S. 544" court="SCOTUS" date_filed="1878-02-11" href="https://app.midpage.ai/document/insurance-co-v-mowry-89738?utm_source=webapp" opinion_id="89738">96 U. S. 544.
The court did not err in refusing the charges requested by defendant.
Affirmed.