*638ON MOTION FOB REHEARING.
Gtlr, J.It is claimed that in the foregoing opinion we have overlooked the fact that the mortgagee Wurmser had notice of the institution of Frederick’s attachment suit in time to have intervened and stopped the sale of the goods by the constable, but failed to do so, and it is urged, therefore, that said mortgagee is estopped from asserting any title to such goods.
While standing by in silence will sometimes estop a party from claiming property he sees being disposed of as that of another, yet this rule will not apply in cases where both parties understand the true condition of the title. “It is settled law that standing by in silence will not bar a man from asserting a title of record in the public registry, or other like office, so long as no act is done to mislead the other party; there is no duty to speak in such a case.” Bigelow on Estop. [5 Ed.], p. 594. ' -
In a- case involving this question, our supreme court has said: “Though silence in some cases will estop a party from speaking afterward, yet it is only when it becomes a fraud that it postpones. If, therefore, the truth be known to both parties, or if they have equal means of knowledge, there can be no estoppel. If a man holds title to his lands by deed, which has been duly recorded, it is all the notice he is bound to give, so long as he remains passive.” Bales v. Perry, 51 Mo. 453, See, also, to same effect, Blodgett v. Perry, 97 Mo. 273; Brincherhoff v. Lansing, 4 Johns., ch. 70; Bigelow v. Topliff, 25 Vt. 286, 287; Carter v. Champion, 8 Conn. 554.
In the case at bar, Wurmser’s mortgage was on file duly recorded in the proper office, at the time Frederick caused the property to be seized and sold on attachment. ' He had, therefore, notice of Wurmser’s rights, *639and there is not a scintilla of evidence that Wurmser said or did anything to induce Frederick’s action. The evidence shows conclusively that though he (Wurmser) may have heard that Frederick had attached the goods, he was yet ignorant of their whereabouts until after the sale by the constable. He was not, then, present at the sale, and did nothing to warrant Frederick in the belief’ that he (Wurmser) made no claim to the goods. There was no evidence in the case upon which to base an estoppel.
Motion for rehearing overruled.