This is an action of replevin for a horse. The defendant pleads that at the time of the taking; the property of the horse was in one Salmon Gates, and traverses the asserted property of the plaintiff. The plaintiff replies that the property and title of Gates in and to the horse, if he had any, was derived by a sale there-' of to him by Witherell, the defendant; after which sale the plaintiff, being ignorant of any previous sale of the horse, purchased him of the defendant and paid a full and valuable consideration to him, he warranting the horse then to be his, and that he had good right to sell him. To this replication there is a general demurrer and join-der. There can be no question but that the plea in bar is good, unless avoided by the replication; inasmuch as it expressly avers the *163horse, at the time of the taking, to have been the property of Gates. It is the office of a replication either to traverse the plea or some one fact in it, or else to confess and avoid it by the introduction of some new fact, which, if true, shows the plea to be of no importance. Now the replication in the present case does not traverse the property of Gates, which is distinctly and correctly alleged in the plea; neither does the replication confess the property to have been in him. Besides, it presents no facts that show any title in the plaintiff. Of what consequence is it, of whom Gates purchased the horse, if at the time of the taking, ho was the owner ? The replication admits that the defendant sold tile horse to him, and there is no fact stated, showing that the sale was not a fair one 5 of course, by the sale, the property was legally transferred to Gates. After all this, the defendant sold the horse to the plaintiff,' as before stated ; but as he did not then own the horse, he is answerable to the plaintiff on the warranty; but no property passed, unless by way of es-toppel, which is relied on by the plaintiff in the close of his replication. The only doubt is whether the principle of estoppel is applicable in the present case. Estoppels are not to be favored, as their object and tendency are to exclude the truth by closing the door of investigation. We have not been aide to find any decisions in which an estoppel lias been applied in case of a parol contract. Though a release under seal is an estoppel, a receipt is not; it is capable of explanation. Lord Coke says, Co. Litt. 352, that estoppels are of three kinds. 1. By matter of record. 3. By deed. 3. By matter en pais, as by livery — by entry — by acceptance of rent — by partition and by acceptance of an estate. We might have viewed this cause in a different light, perhaps, if the replication had contained an averment that the title to the horse had been obtained by Gates of the defendant, by means of collusion between them to defraud the plaintiff, and he had been a creditor of the defendant; for that would have proved the defectiveness of Gates's title ; but the replication, so far as it relates to that title, seems to confirm the allegations of the plea, and leaves the title in Gates uncontradicted and unquestioned. We do not feel at liberty to apply the estoppel in *164this case. On the facts disclosed by the pleadings, the defendant passed no right to the plaintiff by the sale of the horse, because he had none to convey. The remedy of the plaintiff is upon the warranty. If the plaintiff'had grounds, and thought it prudent to contest the fairness and honesty of the sale from the defendant to Gates, he might have given the usual replication, and submitted the question of fraud, if there was any, to the decision of the jury.
Replication adjudged insufficient,