To defeat the plaintiff’s recovery, the answer sets up various matters in the nature of a suit in equity under the old practice, and therefore the merits of that defense must be decided upon equitable grounds. If for any reason it would be unjust and unconscionable to allow the title of the plaintiff to prevail as against the facts stated in the answer and proven on the trial, equity will relieve against it.
It appears that previous to the issuing of. execution on the Hill & Rudd judgment, the plaintiff had acquired the title under the Carney sale. He then issued execution for the full amount of that judgment, with interest and costs, and delivered it to the sheriff to be collected. - The sheriff, in pursuance of the command in the execution, advertised the premises described in the judgment for sale; and, in order to prevent a sale, the *89receiver (for the benefit of the creditors of the La Crosse & Milwaukee Railroad Company) then in possession of the property as such receiver, paid the full amount of the execution and costs without any deduction of the amount made either upon the Carney sale or at the sale on the Hill & Rudd judgment, January 26, 1859. So that the case presented is this: After the plaintiff had procured the title under the Carney sale, and after the Hill & Rudd judgment had been assigned to him, which included the amount due Carney for materials furnished, he caused execution in the case of Hill & Rudd to he issued to collect the entire judgment, and the amount in fact was collected by the sheriff, and the execution fully satisfied. For one purpose he deliberately elected to treat the Carney judgment as unsatisfied and the sale of no effect, while for another purpose he affirms the validity of the sale and insists upon his title under it. These inconsistent and repugnant claims, we think, cannot be maintained in a court of equity. It would be contrary to every principle of equity and justice to allow the plaintiff to disregard the Carney sale and collect the money due upon the judgment, and then turn round and treat the sale as valid, and derive all the benefit which the sale could confer if the judgment had never been paid except by the sale. The American annotator, in his note to the Duchess of Kingston's case (2 Smith L. Cases, 6 Am. ed.), on page 764, uses the following language, which we think entirely applicable to the question before us. He says“ That a man must choose between different and inconsistent rights, and cannot assert one after he has deliberately elected to enforce the other, is a rule of natural justice which was known to' the common law at an early period, and has since been liberalized and enlarged by equity. Martin v. Ives, 17 S. & R. 364, 368. Thus a party will not be permitted to impugn a decree or title which he has set up or relied on in a prior proceeding, if the effect will be to place other persons in a *90worse position than they would have held if he had maintained the ground originally taken. Martin v. Ives; Smith v. Jack, 2 W. & S. 101; Ullery v. Clark, 6 Harris, 148; Bailey v. Bailey, 8 Wright, 274.” In Martin v. Ives, Gibson, C. J., when speaking of the application of this principle of election, says: “ Estoppels are sometimes said to be odious; and it has been affirmed that there is no such thing as an equitable estoppel. But the doctrine of election, which prevents a party from claiming in repugnant rights, and which has been so advantageously introduced into courts of equity, is manifestly an extension of the principle. ' In courts of law they are for the most part reconcilable to the purest morality, and when they produce neither hardships nor injustice, they merit indulgence, if not favor.” Page 366. See also Smith v. Worden, 7 Harris, 424; and Spragg v. Shriver, 1 Casey, 282.
. But the plaintiff insists that nothing like an equitable estoppel can arise in the case, because he has never promised to give up his title to the property, hut on the contrary avowed his intention to hold it before the money was paid. True, he resisted the motion made by the receiver that the Hill & Rudd judgment be satisfied upon the payment of the balance due thereon, less the amount of the Carney judgment and costs of sale, with interest from the date of sale. But this was only declaring, in a most distinct manner, that for some reason he did'not intend to stand by the Carney sale, and that he was willing to give up any title he had acquired under it. At all events, a court of equity will so interpret his conduct in the matter; for his only just ground for resisting that motion and exacting the money due upon the Carney judgment in the Hill & Rudd case, was that the Carney judgment had never been satisfied. A court of justice, in denying the motion to reduce the Hill & Rudd judgment by the amount of the Carney judgment, could not have intended to aid the plaintiff in again collecting a judgment already satisfied by a *91sale of property under it. And the plaintiff, having had the choice of different and inconsistent rights, and having deliberately elected to collect the amount of the Carney judgment in the Hill & Rudd case, must abide the consequences. He cannot now. also insist upon having the property sold upon that judgment.
The judgment of the Circuit Court must therefore be affirmed.
By the Court. — Judgment affirmed.