While the goods in question were in the possession of the plaintiffs, who held them, by virtue of a mortgage from William H. Case, the former owner, the defendant, a deputy-sheriff, attached them, as the goods of Case, took them into his possession, and afterwards sold them at the post, on an execution, regularly issued, on the judgment rendered pursuant to his attachment. They were mortgaged, to secure a note to one of the plaintiffs, and to secure the other two plaintiffs against their indorsement of other notes, made for the accommodation of said Case. After the seizure by the defendant, Mr. Dyer, one of the plaintiffs, caused a writ of attachment to be issued on one of the notes indorsed by him, and held by the Mount Vernon Bank, which he placed in the hands of the defendant, with directions to attach the same goods, subject to the attachment by virtue of which he first took them. This being done, the suit was continued in court until December, 1849, when it was withdrawn. The present suit was commenced in January, 1849.
The judge who tried the cause, held, that the conduct of the plaintiffs in relation to the suit commenced by Dyer, was a proper subject for the jury to consider, in determining as to the validity of their mortgage title ; but, if the jury should find, that a good title had been conveyed to the plaintiffs, and the defendant was a trespasser, in taking the goods out of their possession, such trespass was not waived, by reason of their acts in relation to that suit; nor were they estopped from recovering for the subsequent conversion, in selling the goods upon executions in favour of other creditors.
There was nothing objectionable in this. On no ground has the defendant any reason to complain of it. There was, *568obviously, an outstanding equity of redemption in the mort~ gagor, which Mr. Dyer might well attach, subject to the plaintiffs' mortgage and the defendant's prior attachment; and the court cannot see, that it was not his only object to take that. As his attachment was consistent with the validity of his mortgage, it was impossible to infer, from his conduct, merely, any admission of the invalidity of the latter. An estoppel must be certain, in order to conclude a party from proving the truth; and ought not to be made out by inference or argument.
But if it is admitted, that the conduct of Mr. Dyer amounts to an admission that the mortgage title was invalid, it would not, under the circumstances, estop him from proving the contrary. It would only be evidence to be considered by the jury, on that question. ,
The rule, on this subject, which this court has repeatedly sanctioned, is, that where one, by his words or conduct, willfully 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 precluded from averring, as against the latter, a different state of things, as existing at the same time. Pickard v. Sears, 6 Ad. & El. 469. (33 E. C. L. 115.) Brown v, Wheeler, 17 Conn. R. 345. Roe v. Jerome, 18 Conn. R. 138.
This is a rule founded on the clearest principles of justice, and has generally been acted upon. Some of the cases, we are aware, state the principle a little more broadly ; but in none of them, has it ever been intimated, that an admission, which has not had the effect to mislead a party, could amount to an estoppel, whatever might be its force as evidence, merely; and the last well considered case on the subject, while it admits the principle to be correct, seems, rather, to limit, than to extend it. Freeman v. Cook, 2 Excheq. Rep. 654.
But, taking the rule in its broadest sense, it is a perfect answer to the defendant’s claim. The admission, here, was, subsequent to the act which fixed the defendant's liability. He could not, therefore, have been misled by it; and his position is the same, now, as if Mr. Dyer had never attached.
It is said, however, that the defendant sold the goods, subsequent to the last attachment; and the plaintiffs are estopped *569from claiming damages for this act. If this were admitted, it would not benefit the defendant. The jury have found, that the plaintiffs had a good title, by virtue of their mortgage ; and that the defendant, was a trespasser, by reason of the original taking. Of course, the rule of damages was the value of the goods. At what time, the defendant chose to sell them, or, whether he chose to sell them at all, is of no importance, except to show the object for which he took them.
But, there is no evidence that they were sold upon the strength of Dyer’s conduct. The inference is the other way; they were taken to secure certain debts ; and they were sold to pay them : the inference is, therefore, that they were sold pursuant to the original design, rather than on the strength of the subsequent conduct of any body.
There is no foundation for the application of the technical doctrine of estoppel, to any part of this case. Mr. Dyer and his co-plaintiffs, had, as they all supposed, a title to the property, by virtue of their mortgage. That did not prevent their pursuing any other remedy for the collection of the mortgage debt, or any part of it. In principle, it is not unlike the case of a party, who has two securities, for the same debt: he may pursue them both, till he gets his pay. And if he had fears as to the validity of the mortgage title, we do not see any objection to his attaching the property, for the purpose of making himself as safe as he could, under the circumstances. A party in possession of property, under a claim of title, does not weaken his title, such as it is, by purchasing an outstanding claim in some third person.
We are satisfied there was no error, in the ruling of the court, and do not advise a new trial.
In this opinion the other judges concurred.New trial not to be granted