ON MOTION FOR REHEARING.
PARKER, J.A motion for rehearing has been filed upon the ground that the opinion is in conflict with the law of estoppel as laid down by the Territorial court in Dye v. Crary, 13 N. M. 439, 85 Pac. 1038, 9 L. R. A. (N. S.) 1136, which case was not called to the attention of the court by counsel. Just why the decision in the case at bar is in conflict with the Dye-Crary Case is not pointed out in the motion nor in the statement of counsel accompanjdng the same.
Inasmuch, however, as the doctrine involved is of much importance we have' re-examined the Dye-Crary Case with the view of pointing out that there is no conflict between it and the case at bar. In that case a mining claim had been sold under an alias writ of attachment which was held by the court to have been void because not authorized by the statute. Crary and Heiniman took an option to purchase the property from the execution purchaser, and during the pendency of the option they had a conversation with the plaintiff, Dye, as follows:
“Mr. Dye visited the mine and while there in the presence of Mr. Alexander and Mr. Crary, I told him that I was about to make the payment for- the property in full, and I asked him if he knew of any conflicting claim or any other claims on the compromise. He immediately answered there was. The Scranton claim took off about 100 feet, and he said as to other claims there would be nobody but himself. And he says T have allowed all my time to lapse and I have no claim whatever.’ With that he wished me success and hoped it would prove a good mine.”
It appeared that, at the time of this convernation, Dye was ignorant of the law and was not aware that the attachment proceedings were void. The court held that this statement or admission by Dye was a mere statement of his supposed legal rights, and not of a matter of fact. It is pointed out by the court that Dye, having no knowledge that the proceedings in attachment were void for want of jurisdiction, could not have been guilty of fraudulent representation or concealment when he had the conversation. In that connection the court cited Brant v. Virginia, etc., Co., 93 U. S. 326, 23 L. Ed. 927, as to the effect where an admission in regard to the condition of a title is relied upon by way of estoppel there must generally accompany such admission some intended deception in the conduct or declarations of the party to be estopped or such gross negligence on his part as to amount to constructive fraud. The court also cited Henshaw v. Bissell, 18 Wall. 255, 21 L. Ed. 835, to the same effect. It was upon the principle announced in those cases and others cited that the trial court held that Dye was not estoped by his admission that he had lost his claim •because he had allowed his time to lapse; such statement being unaccompanied by inducement or representation held out to Crary and Heiniman to influence them to buy the claim.
The principal reason, however, for holding that Dye was not estopped was because Crary and ,ITeiniman did not rely upon his admission, and therefore were not misled thereby to their' detriment.
We see no conflict between the Dye-Crary Case and the case at bar, inasmuch as the facts are entirely different. In the case at bar, as pointed out in the opinion, both parties were mistaken as to the law, it is assumed, but the appellant, by her ,affirmative conduct and direct insistence, put the appellee in a -position to his detriment and from which he cannot now recede without pecuniary loss.
For the reasons stated the opinion will be adhered to, and it is so ordered.
Koberts, C.J., and Hanna, J., concur.