The opinion of the court was delivered by
Redfield, J.The defendant Hill purchased one half the mortgaged premises while subject to the orators’ mortgage. A short time before such purchase, the store upon said premises had been burned. At the time the store was destroyed there was an insur*395anee upon it, procured by defendant Hodge, for tbe benefit and security of the orators’ mortgage, and to an amount sufficient to pay it. The insurance money was used by Hodge in rebuilding the store upon the same premises.
I. The defendant Hill testifies that Harmon M. Allen told him that said mortgage would be paid by the insurance money, and afterwards told him the insurance had been paid. And for this reason Hill insists that the orators are estopped from asserting their mortgage. The insurance money was not in fact paid to any one till after Hill had purchased, and this conversation, if effectual for any purpose, could not affect the female orator, who is the owner in her own right of one moiety of the mortgage. And we do not think that the facts claimed by the defendant Hill are proved by the proper measure of evidence. They rest substantially upon Hill’s own evidence, and are alleged in avoidance of the rights claimed by the orators, and are not in any sense respon-’ sive to the bill. They are distinctly denied by both the orators ; and the circumstances strongly impress the court that Hill must have been aware that Hodge was using the avails of the insurance, without protest or any question on his part. The insurance money was never actually paid to the orators ; and, if it had been proved by satisfactory evidence that the orator Harmon M. Allen told defendant Hill that the mortgage would be paid by the insurance money, no duty attached to the orator to apply the money on his mortgage until he had received it.
II. But if the declarations of Allen were satisfactorily proved, we do not think that they would estop the orator H. M. Allen from asserting his mortgage. It is not claimed that he stated that his mortgage had been paid, or any existing state of things which were not true that induced Hill to purchase an interest in the premises. He stated merely what he purposed to do in the future. Lord Denman, in Packard v. Sears, 6 A. & E. 479, states the rule of law as to estoppels in pais very intelligibly, “ that when one by his words or conduct wilfully causes another to believe the existence óf a certain state of things, and induces him *396to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a differing state of things as existing at that time.” Allen, in this case, made no representations as to the existing state of things that were not true, hence, in asserting his mortgage, “ he is not averring a different state of things as existing at that time.” Hill knew that the orators’ mortgage was existing and unpaid when he purchased, and subsisted while Hodge was rebuilding the store; and upon the evidence, had every reason to believe that the insurance money was being used in the construction of the building, in which, by his silence, he acquiesced. It would now be inequitable that the orators should be deprived of the benefit of their mortgage.
Judgment affirmed, and cause remanded.