This case is an action upon an undertaking executed under a void statute, chapter 82, laws of 1883, for the purpose of effecting an appeal under that statute from the judgment of a justice of the peace in a suit for forcible detainer.
The supposed appeal was docketed and tried in the district court where the appellant was successful, but, upon proceedings in error in this court, the judgment of the district court was reversed and the appeal dismissed. Ettenheimer v. Wattman, 63 Neb. 647. This action resulted, in the district court, in a judgment in favor of the plaintiff and against the principal and sureties upon the undertaking. From the latter’ judgment this proceeding is prosecuted. The only question litigated is that of liability upon the undertaking. As a statutory obligation, it was confessedly void. Was there sufficient consideration to support it as a common law contract? It will be seen that the case differs from those of Stevenson v. Morgan, 67 Neb. 207, and McVcy v. Peddie, 69 Neb. 525. In each of those cases, the proceeding upon the attempted appeal resulted, in the district court, in a trial and judgment adverse to the appellant, in which both parties acquiesced. In this case, a judgment of the district court in favor of the appellant, which nominally, at least, satisfied the condition of his undertaking, was attacked and set aside in this court as having been rendered without jurisdiction. In the cases *146cited, the principal and sureties were held bound by the principles of equitable estoppel. The appellant, it was said, having by means of his undertaking acquired all that he stipulated for, namely, a trial and judgment in the district court and the possession and enjoyment of the premises in the mean time, was estopped to deny that the instrument was without consideration or was invalid for any other reason. Rut such was not the case here. The appellant did, it was true, retain the use of the demanded premises, and obtained a trial and judgment in the district court, but of the fruits of the latter, which’were the principal consideration of the undertaking, he was deprived at the instance of his adversary. It is an elementary principle that mutuality is an essential element of an estoppel; that one party can not deny the existence of a fact or the validity of a transaction which he forbids another party thereto to dispute. We are not aware that there is any exception to this rule, and are of opinion that it governs the case at bar. The plaintiff participated, without objection, in the trial of the appeal in the district court and, by so doing, subjected the appellant to expense for attorney’s fees and the procurement of witnesses and to a liability to a judgment for costs, the validity of which, according to the principles of the cases cited, the latter would not have been permitted to dispute because of lack of jurisdiction of the court rendering it. By so doing, we think that the plaintiff subjected himself to a like estoppel, from which he could escape only by relieving his adversary therefrom. When in this court he successfully assailed the proceedings upon appeal as being unauthorized by law and wholly void, he in turn subjected himself to an estoppel afterwards to assert that they were in any respect valid.
The conclusion thus reached in no way affects the question of the liability of the defendant in-justice’s court upon an implied contract for the value of the use and occupation of the premises during the time he unlawfully withheld them, but it does, we think, preclude a recovery upon the written instrupient in suit.
1. Appeal Under taking: Estoppel. One who executes a bond under circumstances that would estop him to assert its invalidity for want of consideration, can not, in an action upon the bond, avoid liablty on the ground that plaintiff is estopped to assert that there was any consideration for the bond. Estoppel against estoppel sets the matter at large. 2. -: Validity. A bond in pursuance of a statute afterwards held unconstitutional is not valid as a statutory bond, but may he valid as a common law contract, if supported by a consideration independent of the statute. 3. -: -. A bond, given in an attempted appeal in an action of forcible entry and detention, conditioned for the payment of rent, is valid as a contract, if the obligor has by reason of the bond retained possession of the premises, though the statute authorizing such appeal is afterwards held unconstitutional. 4.--: Execution. One of three persons who are appointed attorneys in fact by power of attorney may act for the principal, if the power of attorney contains no provision requiring more than one to join in the act.It is recommended that the judgment of the district court be reversed and a new trial granted.
Hastings and Oldham, OG., concur. By the Court:For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and a new trial granted.
Reversed.